Family Law in California covers a broad array of legal issues including each of the following:
Divorce in San Diego, California, is referred to as dissolution of marriage, which means that parties are returned to single status after a judgment of divorce is entered. Either spouse can file a petition at any time. The person filing a Petition for Dissolution of Marriage (FL-100) is the called the Petitioner and the person who answers the petition is the Respondent. Once the Petition is filed it must be personally served on the other party and a divorce cannot be finalized until at least 6 months after the petition is served or the other party answers, whichever occurs first. (Family Code section 2339). You will be guided through a series of steps, including disclosure of your assets and financial obligations, to the other party.
San Diego is a military community and parties who have married elsewhere and moved here from around the world face unique issues when they decide to divorce in a California court. Like any other person seeking a divorce in San Diego, the military member or spouse must reside in the State of California for six months and in the County of San Diego for three months before filing for divorce in San Diego.
Legal separation is the legal process used when spouses intend to permanently separate from one another and divide their assets, but neither party wants to be divorced. Legal Separation is an option only if both parties agree to be legally separated instead of divorced. The decision to divorce or legal separate has both legal and financial consequences. While the process for obtaining a judgment of legal separation is almost identical to that of a divorce, a judgment of separation has different legal implications, the most significant of which is that it does not allow parties to re-marry when the judgment is entered as the parties are not returned to single status.
California is a community property state, which means that, unless otherwise stated in the law, all property acquired by the married couple, wherever the property is located, is community property and subject to division. Separate property is property owned by either party prior to marriage, and also includes gifts and inheritances received during the marriage. California has a significant number of high-net worth residents and division of assets in those cases will require attention to detail and often the use of experts for appraisals of real estate, antiques, art and businesses acquired before or during the marriage.
When parties have children and they divorce or separate or otherwise end their relationship, the court will decide which parent will have custody of the children. For the first custody order between the parties, the standard the court will use for making a custody order will be “best interest of the children.” Various factors are considered by a judge when making custody orders. Family Code section 3011 and Family Code section 3020 are key California Family Code sections in custody cases. Parties will have the opportunity to come to an agreement as to custody and visitation when they attend a mandatory meeting with a counselor at Family Court Services. The parties’ attorneys may also assist in helping the parties come to an agreement on custody and visitation without the need to appear before a judge.
Relocation or Move-Away Cases:
A parent may desire to relocate to another county, state or country with the child or children of the relationship. Such moves may dramatically affect the custodial relationship between the parent who stays in San Diego and the children who move. There are many reasons a parent may want or need to move with the children, including military orders, a new job or remarriage. Given the consequences of move-away orders, these cases are some of the most highly contested and challenging custody matters.
Family Code section 4053 sets forth the policy of the State of California with respect to the support of minor children, which is that a parent’s first obligation is to support his or her minor children according to the parent’s circumstances and station in life and both parents are responsible for supporting their minor children.
Child support is a payment made by one parent to the other and it is calculated using a formula found in Family Code section 4055. Typically the Superior Court and private attorneys use a program called Dissomaster to make this calculation, while the Department of Child Support Services and the county attorneys use their own guideline calculator.
The numbers used to calculate support include timeshare percentage (how much time each parent spends with the children), the income of both parties, and tax filing status. If applicable to one of the parties in the case, the calculation also includes mortgage interest deductions, healthcare deductions, investment income, including rental income and more.
“Guideline” support refers to the support amount derived from the formula found in the Family Code or by use of either of the support calculators. Guideline support is presumed to be correct and the court must order guideline support unless there are special circumstances that permit a deviation from the guideline figure. The circumstances that allow for deviation are set forth in Family Code section 4057.
Alimony or Spousal Support:
Throughout California, including in San Diego, alimony is referred to as spousal support. Spousal support is a payment made by one spouse to another during the pendency of a divorce and, possibly, after the divorce is final. The amount the higher earning spouse must pay depends largely on the earnings of each party.
The purpose of temporary spousal support is to provide support between the time the petition for dissolution is filed in the San Diego Superior Court and the time judgment is entered in the case. The court may use a guideline calculator, like Dissomaster, for the purpose of determining the amount of temporary support that must be paid by the higher earning spouse.
Permanent support is paid after the judgment is entered. Permanent support may be ordered for a specified amount of time if the marriage was a short-term marriage, or less than ten years. If the marriage endured for more than ten years, there may not be a specified termination date in the judgment. The amount and duration of permanent support will be determined by the court using the factors set forth in Family Code section 4320. The court may not rely on a Dissomaster calculation alone for orders on permanent support.
The Family Court in San Diego will consider the factors listed in Family Code section 4320 to determine the marital standard of living. The factors the court will consider include:
- Income of the parties and earning capacity of the parties
- Length of the marriage
- Health of the parties
- Age of the parties
- Assets of the parties
Domestic Violence or Domestic Abuse:
Domestic Violence is defined as violence between intimate partners or close family members. A victim may obtain a Domestic Violence Restraining Order (DVTRO) against their spouse, partner, parent or child if the victim has been physically, emotionally, or verbally abused. Upon filing a petition for a DVTRO, a court may enter a temporary order that will endure for up to three weeks. After that, the court may extend the DVTRO for up to five years following a hearing. There are significant child custody implications when a court makes a finding of domestic violence, as the court may order that a party who has been found to have abused their partner or spouse to have no legal or physical custody of a child of the relationship.
Paternity cases arise when parties who are not married to each other have a child together. A Paternity petition is filed to establish a parental relationship and a judgment of paternity at the end of the case establishes who the parents are of a child. In cases where parent is seeking support from the other parent of a child, judgment of paternity is required before a child support order may be entered.