Divorce is never an easy process. It can be difficult to understand how you’ve ended up in such a situation when you certainly never planned to. On top of that, there is an incredible amount of logistics to be sorted out. Property division, child custody and visitation schedules, child support, and spousal support are some of the more pressing concerns. All this, for most people, will be entirely unfamiliar and something you’ve never gone through before.
What you need in these situations is someone who knows the process. You need someone who understands how to help you get what you are seeking while also being able to handle the situation with the delicacy and care that you need. At Cianci Law, we specialize in these situations. Our expertise can be just what you need to help you through to the other side of your divorce and beyond.
To be eligible to file your divorce in California, you must meet two qualifications:
If you have any questions about your eligibility, we can look at your situation and help you understand your options.
The quickest a divorce can be finalized in California is generally six months after the initial papers are filed. There is no waiting period of separation before filing as is required in some states. This six-month timeframe serves as a period where the couple may choose to reconcile and stop their divorce proceedings if they so desire. If not, the divorce can be finalized as early as six months after the initial filing. That is not a guarantee of timing, though, as the unique circumstances of a particular case may lead to a longer period before it finalizes. After looking at the particulars of your case, we might be able to give you a little better estimate of what to expect.
Divorces in California are all no-fault filings. This means that there is no duty for one spouse to prove harm or give a reason for the divorce. This also means that a judge is not supposed to consider things like infidelity or harm when determining spousal support or property division. It’s possible that any kind of harm will be considered when something like child custody is considered. The judge will only rule for what is in the interests of the child, and depending on the judge’s assessment of the harm, they may factor that into the custody and parenting time decisions.
The individual nature of each divorce will, of course, shape the specifics of how the divorce process unfolds. In general, though, there is a standard process that a divorce will follow. A consultation with us can help you better understand the nature of what to expect in your particular situation. However, it can be beneficial to have an overview of the general process that a typical Orange County divorce will follow.
Once you decide that you would like a divorce, there are a few things you will want to do before filing and possibly before notifying your spouse of your intentions. There’s no way to avoid the fact that a divorce is a challenging process. You may be better off on the other side of it, but the process of getting there is going to be hard. However, you can make it easier on yourself by making sure that you are prepared enough before filing and beginning the process. Some things to consider include:
The legal process of divorce begins with filing papers with the court. After that has been done, papers must then be delivered, or “served,” to the other party. You cannot deliver these yourself. They must be delivered by a neutral party over the age of 18, who will then sign a Proof of Service of Summons. We can help you figure out how to serve the papers most effectively in your situation.
Once the papers have been served, this starts two clocks. The first is six months, which is the earliest point at which the divorce can be finalized. The second is 30 days, which is how long the other party must respond to the papers. There must be a motion filed, most of the time a Request for Order. Often, a party will file an RFO at the same time they file the Petition. The Court will not issue orders based on the Petition or the Response alone.
The six-month minimum delay between filing and finalizing the divorce accomplishes a few different things. First, it leaves open the possibility of reconciliation. It also allows time for both parties to put together their cases before a possible trial date. After the filing and response, there is a period of financial disclosure and discovery. This allows the representation for both parties to gather the information needed to make a case for their client. That discovery also helps with the possibility of negotiation as well. The third thing that the delay provides is the opportunity for the parties to come to some agreement by themselves instead of having to fight it out in court. There are a few alternative ways that the divorcing parties can attempt to do so, including, collaborative divorce and mediation.
There’s a lot of risk in allowing a divorce to go to trial. It puts the entirety of the divorce ruling in the hands of the judge. While the judge will work to come to a fair ruling that is justly crafted for all parties, the reality is that there is a limitation on their ability to do that. The judge has to make their decision based on a very limited amount of information that can be presented in court. It could never give the judge a full scope of the dynamics of the situation. Far too often, the limited nature of what the judge sees of the circumstances leads to unfair rulings despite their efforts. Instead, many divorcing couples are choosing to use the process of mediation to seek a better outcome.
Mediation is a process that allows for the negotiation of a separation agreement between the two parties rather than having to go through court proceedings that leave everything in the hands of the judge. There are many advantages to this process beyond allowing the parties to have more control over the defining aspects of the final divorce orders. Some of these advantages include:
The mediation process gives both parties more control and say in what their post-divorce lives will be like. Ultimately, a judge will decide whether to sign off on the separation agreement. However, unless there is something egregious regarding some issue, like property division, or if the child custody agreement is not serving the child’s interests, then the judge will often agree to what the parties have submitted.
At Cianci Law, we have a lot of experience with these kinds of negotiations. We can help you through this process and can assist you in finding an agreement that is fair while respecting what you value most in the process. There are some cases where court proceedings are still possible when an agreement can’t be found. Even if an entire agreement can’t be found through mediation, what has been agreed to may be rolled into the court’s decision. More often, though, we find that clients are pleased with what the mediation approach can do for them.
If the divorcing parties can come to an agreement on all aspects of the divorce, their lawyers can help them draft a separation agreement. The court will then have to sign off on that agreement. It’s important to note, though, that just because the couple has agreed to the terms doesn’t mean that the court is required to approve it. The judge will make alterations if they believe that something about the agreement is clearly unfair. The judge is also required to always do what is right for the child’s welfare in a custody situation. Therefore, if the judge doesn’t believe that the custody agreement does that, they will make changes to serve that goal.
If the two parties can’t reach an agreement, either in whole or in part, then the court will be left to rule on their discretion. They will hear evidence and arguments from both sides and make a decision. The judge’s rulings are final unless and until they are modified through a hearing, so all parties will be expected to abide by them.
Once the judge has assessed the agreement and made any changes or has heard arguments and evidence in a trial, they will put together final orders. The judge will sign a Judgement of Dissolution, and the marriage will be officially terminated. Temporary orders are lifted as the final orders take effect.
California is a state that follows community property rules. What this means is that the community property is to be evenly divided between the divorcing couple. It’s worth noting that the rules apply not only to property but also to debts. Property division in Orange County generally follows a basic pattern:
The difficult element of these cases is determining what is or isn’t community property. California law does offer some help by defining separate property as:
For example, if you owned something that brought in an income before the marriage, the income that it brought in during the marriage is yours.
At times, it can be difficult to assess what is and isn’t a separate piece of property, but at Cianci Law, we can help give you an idea of what category property falls into. Another common point of contention is whether something has lost its separate character. For instance, a rental property owned before the marriage may be a community interest if common marital funds were used to upgrade, refurnish, or fund maintenance on the property.
The division of community property, under California law, will result in a net value 50/50 split of the estate. This is important because it allows the parties some flexibility in terms of what property they would like to keep as long as both parties agree. It is also possible that one spouse may buy out the other’s share of a particular asset. In some cases, the assets may be sold and the proceeds divided evenly. In rare cases, if the couple can find terms that work for them, they may also choose to continue to own some property together.
Dividing property can be one of the most technically difficult elements of the divorce process. Our expertise in these cases can be a real asset when helping you figure out how to classify property and how to approach dividing it. It can take some creativity to handle these situations, and that’s something we can provide for you.
Spousal support is sometimes referred to as alimony in other states. It’s a system of financial support from one divorcing party to the other. There can be a financial disparity between the two parties when a divorce occurs, and spousal support is meant to even out some of that disparity. The primary factors considered will be things like earning capacity, age, and health. Spousal support is one of the areas where it can be critically important to have a skilled lawyer on your side. We can identify when the other party might be trying to take advantage of you and intervene.
Child custody can often be the most emotionally taxing part of a divorce. Usually, both parents want the perfect situation for their kids but can have a hard time agreeing on what that is. We understand the delicacy of the situation and can help you work with the other side to hopefully find an agreement that you both see as fair. Otherwise, it will be left up to the court.
It is not necessary for both kinds of custody to be awarded in the same way. For instance, given that joint legal custody is often a preferred outcome for the courts, one parent having sole physical custody while sharing joint custody with the other parent is not uncommon.
In custody decisions, California judges are prohibited from favoring a particular outcome based on the sex or gender of the parent. The only factor that they are to consider in any child custody decision is the child’s interests.
If you can come to a custody agreement outside of court, a judge will still need to approve it. A significant part of that approval is having a quality parenting plan that describes how the parents will handle the important decisions that they will face and who will be responsible for what. One of our roles as your lawyer is to help you put together a parenting plan that addresses all the major concerns that a judge will look at. The judge may make changes to the parenting plan if it better serves the child’s welfare. If the custody situation is resolved in open court, the judge will provide a parenting plan for how the couple is to handle it moving forward. In general, we know that most parents feel that decisions about their children that are this important are better decided by them than a judge. As part of mediation, if you choose that route, we can try to help keep you in charge of decisions regarding your kids.
As with custody, the primary factor of consideration in child support decisions is the child’s welfare. To that end, the state offers guidelines for child support based on a complex calculation that takes into account both parents’ incomes, the needs of the child, and several other factors. California uses the income share model, which means that the goal is for the child to have the same share of income as if the divorce had not occurred.
A divorce is a massive decision, and how the process unfolds will affect the rest of your life. There’s not a single major aspect of your life, from finances to kids, that divorce doesn’t touch in some way. At Cianci Law, we specialize in these situations and have the experience and skills that you are going to want by your side. Just as importantly, though, we understand the vulnerability and anxiousness that comes with the process. It can feel like so much of your life has been tossed in the air and now you are waiting to see where things fall. We know you need someone who can treat you honestly and with respect and care. We can give you a point of trust as you go through the process. If you’re going to need a divorce attorney in Orange County, contact us today.
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