When love doesn’t end up as “til death do us part,” you need to know your rights. There are many things to consider, both for your financial and legal rights.
In California, family circumstances such as the number of years married, children, and spousal support will determine the rights and length of time for the divorce to be final.
California is a “no-fault” divorce state. This means that no party is found at fault in the divorce. The most common reason for filing is irreconcilable differences, meaning that you have exhausted all means of reconciling and still want to get a divorce.
So, what are your rights in the state of California? Let’s take a look at them.
Division of Property
In California, your property is considered either separate or community property in the case of a divorce.
Separate property refers to any money or debt belonging to an individual before the marriage. The property may be:
- Any real property owned – houses, rental properties, etc.
- Any gifts or inheritances received from family or other individuals
- Property in one individual’s name only during the marriage but not used by the other spouse or for the benefit of the marriage
- Any property or debts designated as separate in a prenuptial agreement
This refers to any real property, money, or debt obtained during the marriage and benefits both parties. In California, this property is to be equally divided between both parties of the divorce.
The type of property considered community are:
- Bank accounts and cash
- Pension plans and retirement accounts
If there is no legal way to divide equally, both parties will need to agree on the property’s distribution.
When there is a combination of community and separate property, this is called commingling property.
For example, if a spouse owned a house before the marriage and sold it after getting married, using the profits as a down-payment on a new home, the down-payment is considered separate property. But if the house payment is made using both parties’ income, the equity is deemed commingled.
It can get complicated separating commingled assets. Your lawyer and the courts use different methods to trace the assets’ origin and determine how to divide them. It’s best to consult a lawyer to figure out the best way to approach dividing commingled assets.
Same-Sex Marriage & Divorce
The U.S. Supreme Court declared same-sex marriage legal nationwide in 2015. In California, same-sex divorce is the same as a heterosexual divorce.
As long as you meet the legal requirements, including residency, the divorce will proceed as usual. Property and child support are also treated equally under California law.
Spousal Support (also known as Entitlements)
Upon divorce, you may be entitled to spousal support. There are specific requirements to determine eligibility for entitlements. The spousal order outlines the amount a spouse or domestic partner pays the other party.
The following conditions qualify for spousal support are:
- The length of the marriage
- Any issues of domestic violence
- The age and health conditions of both parties
- Ability to pay by supporting spouse
- Tax consequences
- The goal of self-support
If you feel you are entitled to spousal support or want to know your options, your lawyer can advise if you meet the requirements and how to proceed.
Child Custody & Support
Child custody and child support can get messy and complicated. It’s best to work with your lawyer to determine the best way to proceed. California custody and support laws do provide guidelines for determination.
The court uses the following criteria to determine child support:
- Net income of both parents
- Age of children
- Time children spend with each spouse
- Who declares children as dependent for tax purposes
- Retirement plan contributions
- Health insurance costs
- Mortgage interest and property taxes of both parents
As far as custody of children goes, there are two types: Joint & Sole custody. Joint custody is when both parents share the rights and responsibility for the child(ren) to make decisions on health, welfare, and education.
For sSole custody, one parent has the full responsibility of health, education, and welfare of the children(ren). In joint custody, the children(ren) spends time with both parents as determined by each party and the court. When sole custody is determined, the children(ren) live with one parent, and the other parent has visitation as determined by the courts.
Where to Find Help
At Azemika & Azemika, our law firm’s practice specializes in the field of family law. As a result, we can handle divorce cases, dissolution of domestic partnerships, child custody, visitation, child and spousal support, paternity, abandonment, and adoptions.
With efficiency and great attention to detail, our partners at Azemika & Azemika Law use our vast experience in family law to customize each case to our clients’ needs. Contact us today for a free case consultation.