Mar 31, 2020 - Divorce by Brian Seastrom
Undergoing a divorce in California can be a trying and emotional process. From determining whether to obtain a legal separation or divorce, to understanding how your assets will be divided, consider speaking to an Irvine divorce attorney before you initiate the process.
Making the decision to get a divorce is a difficult choice, but once the decision has been made it’s important to understand how the process will work. If you’re located in California, there are a variety of critical steps and distinctions to the divorce process, and it’s recommended that you speak with an Irvine divorce attorney before initiating your proceeding.
Here, we review some of the most common questions associated with divorce in California.
What is the difference between a divorce and a legal separation?
There is a distinction between a legal separation and a divorce, though it’s important to note that a trial separation does not constitute a ‘legal’ separation. Rather, a legal separation is an alternative to a formal divorce, and is used as an instrument between couples who wish to have a binding agreement governing the separation of their assets and any child custody, support, and alimony arrangements as needed.
A legal separation can only ensue when both parties have agreed that their parting is considered a legal separation and not a divorce. There are some benefits to a legal separation – for example, there is no waiting period to file for a legal separation, while divorce carries a minimum six-month waiting period before the divorce can be finalized. In addition, a legal separation does not carry a California residency requirement, meaning that the couple does not need to prove they have been living in California for the last six months in order to conclude their legal separation.
Finally, though a legal separation is a faster and easier remedy to manage a couple’s separation, it is possible for a couple to transition to a divorce down the road if they feel they would be better suited by such a document.
What are the benefits of choosing one over another?
While the benefits certainly include the elimination of the six-month waiting period and residency requirement, there are other reasons why a couple might feel that a legal separation would be a sounder approach for their separation. For example, couples facing religious limitations on divorce may wish to have a legal separation versus a divorce in order to remain in good standing with their church. In addition, a legal separation usually allows couples to maintain health insurance benefits obtained through one of the spouses. In addition, a legal separation does allow the couple to delineate how they will divide their property and assets, and navigate their child custody, support and alimony arrangements without formally terminating the marriage.
If I do decide to get a divorce, how long will the process take?
The time required to complete the terms of your divorce depends substantially on whether your divorce is amicable or whether each spouse will contest the terms of the divorce. If a couple is able to arrive to the terms of the agreement quickly, your Irvine divorce attorney will be able to draw up the paperwork quite quickly and expeditiously deliver the file to the court. However, as outlined above, California mandates a six month waiting period from the date you file a notice of divorce to its completion, so you can expect your divorce will take at least that long. Notably, a couple only have five years to complete a divorce from its initial notice, at which point the court will decide to close the case.
Will I need to go to court?
Generally speaking, divorcing or separating spouses will be able to avoid court unless litigation becomes necessary. Once you or your attorney mail the requisite paperwork to the court, the entire process can be conducted by mail.
How does California divide marital assets?
California’s community property law mandates that any property, assets and debt must be divided equally among the parties if obtained communally during the marriage. Most couples are able to make these decisions on their own, but those who cannot will often refer to mediation or arbitration, or trial in the most extreme cases. Generally, the process requires identifying which assets were communally acquired, determining their monetary value, and then making a decision on how that property will be divided.
How do you determine which property is communal marital property?
Usually, any property that is acquired during the length of the marriage will be considered community property, and any property that a spouse owned before the marriage will be considered separate from the marriage and its ultimate liquidation. The same is true if the property was acquired through an inheritance or as a gift. Furthermore, any property obtained after a couple has filed for a legal separation or divorce will be considered separate from the marriage. It’s important to note here that a separation will only be considered valid if a documented declaration exists – moving out is not enough.
It’s also worth noting that property acquired as separate property before a union can be considered communal marital property when a ‘co-mingling’ of the assets has occurred. For example, a bank account opened before a marriage that was later adjusted to include both spouse’s names will be considered communal property. The same can be true of a home, a business, a retirement account, or any debt incurred by both parties.
Is it essential to retain an Irvine divorce attorney?
Whether or not you should hire an attorney will depend largely on whether you feel confident in navigating this process on your own, and whether you want to spend the additional money to ensure peace of mind. If you and your spouse are having difficulty coming to an agreement that works for you both, then hiring an Irvine divorce attorney is a sound approach. An attorney will likely charge a retainer fee that would cover most of your attorney’s work, unless the divorce becomes hotly contested and requires extensive litigation or mediation.
If you do decide to hire an attorney, be sure to obtain a road map of the divorce process so you can be clear about the costs involved and empowered with the knowledge of how your proceeding will take place.