Serving Long Beach, Lakewood & Los Angeles
The California court system does not care very much about the reasons behind a couple’s divorce. The court will only ask if irreconcilable differences exist, and if they do, a couple may get a divorce. However, the divorce cannot be finalized until at least six months have passed since one party was served the papers for summons and petition. There are some cases in which a divorcing couple may be permitted to request a “summary dissolution,” which is a simpler and often cheaper route.
At The Law Offices of Damian Nolan, our divorce lawyer is here to provide the experienced, diligent and courteous assistance you need. He has handled more than 1,000 divorce and family law matters, giving him detailed insight into this area of law.
We have offices in Long Beach, Lakewood & Los Angeles, and serve clients on a wide arrange of divorce related matters throughout Southern California including Norwalk, Torrance & Compton.
Getting a divorce can be one of the most stressful things an individual goes through in their life. Our goal is to provide you with excellent service and to make sure your divorce goes as easy, and smooth as possible. Our office is highly experienced in the area of family law and divorce. We will fight for you and your family in order to obtain the results that you are looking for. If you or a family member is thinking about getting divorced, currently going through a divorce, or simply wants to speak to a knowledgeable attorney with respect to their family law case, then please don’t hesitate to pick up the phone and call our offices for your free consultation and case evaluation.
California is defined as a “no-fault” divorce state. This means that neither spouse is required to prove that one person was responsible for the dissolution of the marriage. A judge will only grant a divorce in California when there is adequate proof of irrevocable differences between the spouses. You can also file for divorce in the state of California if your spouse has been diagnosed as “incurable” and insane. But you must show sufficient proof in order for a California Judge to rule in your favor.
If you and your spouse have been living in a state other than California, then it is necessary to establish residency in California prior to filing for divorce. To make this happen, one spouse must reside in California for a period of 6 months prior to filing any petition. This is called the residency requirement, and must be established in order for your divorce petition to be granted.
Additionally, you must live within the county that you are filing your divorce petition for at least 3 months prior to filing for divorce. The earliest possible time that a California judge can grant your petition for divorce is 6 months after the non-filing party has been served with the petition or court order.
In California, one spouse or the other may be entitled to alimony. What this means is that one spouse must provide support to the other in the form of monetary compensation. Generally speaking, the spouse that has higher income, or has been maintaining the families lifestyle and standard of living will be the one required to pay alimony. For marriages that have lasted less than 10 years, the court will generally order one spouse to pay the other alimony for approximately half (1/2) the amount of time that the marriage lasted. On the other hand, for long term marriages (10 years or more), one spouse may be required to pay alimony to the other until they are fully self-supporting.
If you or a loved one is currently going through a divorce, or thinking about getting a divorce, then please call The Law Offices of Damian M. Nolan for your free consultation and case evaluation. Further, you will be able to speak to one of our highly experienced family law and divorce attorneys immediately, so please give us a call and we will get started on your case immediately.
When a divorce is contested, there is usually a disagreement regarding some aspect of the divorce, including: custody of any children from the marriage, spousal support (alimony), how assets accumulated during the marriage are to be divided, how debts accrued during the marriage are to be divided, the provisions of the divorce agreement or about getting the divorce at all.
When a divorce is uncontested, the divorcing couple agrees to all the terms of the divorce and doesn’t need the court’s assistance in making any decisions. Uncontested divorced are far less complex, less time consuming and often less expensive.
Whether contested or uncontested, divorce can often be a stressful and complicated matter. In addition, legal preparation is critical. The better the preparation in your divorce case, the better chance you have of getting the results you desire. Many times, quality legal preparation can avoid a costly trial by settling terms under dispute.
A divorce is also called a “dissolution of marriage.” A divorce brings your marriage to an end. Once complete, you will again be considered single, and you will be free to get remarried if you choose. During the process of divorce, you can petition the judge in your case for orders such as alimony (spousal support), visitation, child custody, child support, restraining orders, and property divisions, among others.
California requires that all persons seeking a divorce in the state meet the residency requirement. This means that either you or your spouse must have lived in the state of California for the preceding six months. Either you or your spouse must also have lived in the county where you are filing for the previous three months. When either you or your spouse have lived in the state of California for at least six months, but in different counties for 3 months, either county is an appropriate venue to file for divorce.
If you live in California, but do not meet the residency requirement, you are still permitted to file for a legal separation. When you do meet the residency requirement, an “amended petition” can be filed in order to obtain a divorce.
In the state of California, there are a few basic rules to remember if you’re considering a divorce. First you must have been a resident of the state of California for the preceding six months before you file, and you must have been resident of the county in which you are filing for the previous three months.
Community property means that all debts and property acquired during the marriage should be divided equally among “the community,” i.e., both parties in a divorce. The state of California is a community property state, and, as such, at the time of the divorce hearing or trial, all property and assets will be evaluated and have a value placed on it. When the first summons is filed, both parties are automatically prevented by restraining order from selling or otherwise getting rid of any property. If you think that your spouse is hiding assets, your attorney may seek the services of a forensic accountant to discover and trace assets and property that may be hidden. It should be noted that such professional services are often very expensive, and you should make sure that the property or asset has enough value that you are willing to spend the money that might be required to track it down and fight for it.
One important thing to remember is that you legally have fiduciary duty to your spouse, meaning that all your dealings with each other must be conducted in good faith. It is never a good idea to hide or dispose of assets or property when going through a divorce. There is California case law precedent wherein spouses who have hidden income, assets, and property have had those assets given to the former spouse specifically due to the intentional concealment. (Marriage of Rossi (2001) 90 CA4th 34, 42.)
If you wish to protect your interests regarding your spouse’s retirement plan(s), it is advisable that you join your spouse’s retirement plan before you file for dissolution, or, at the very least, send a notice of adverse interest to the retirement plan. A formula exists for determining each spouse’s interest in a retirement plan, so acting early, before you file, is generally your best bet.
When it comes to debt, the general rule is that, if the debt was incurred after the date of separation, the person who incurred the debt will be awarded that debt. If, after the date of separation, one spouse pays debt belonging to the community, the paying party may be entitled to what is known as “Epstein Credits.” If one spouse had use of the family home exclusively, there may also be what is known as “Watts Charges.” Because of this, you may wish to change the vesting of the family home at the time of filing.
California courts consider businesses as an asset during a divorce, just like any other property. How the business is divided in the divorce depends on whether it is considered separate property or community property. In the cases where a business was inherited before the marriage, or owned before owner got married, the business could be considered a mixture of separate and community property. However, because such situations are often complex and particular to the situation, in this article, we are only going to address community property situations.
One way to deal with a business when it is considered community property is to split the proceeds from selling the business. Many people object to selling the family business, as the unemployment of one or both spouses is a major obstacle, as is the issue of actually selling the business, which can take a long time.
In some cases, a divorcing couple may decide to continue to keep the business open and work there together. In other cases, the business can be divided. Many people will find, though, that working with a former spouse is difficult, but financial situations may keep former spouses working at the same family business; businesses with multiple locations often work out better in these situations, as the former spouses can each work at a different business locale.
One question that often arises in these situations during a divorce is the value of the different stores. As mentioned earlier, businesses are considered as any other asset during a divorce, and the value of assets often come into play. Addressing issues such as the ownership of marketing materials and brand names can also be concerns. Competition for the same customer base can also be a concern. Since most business were not set up to run when divided in this fashion, the business is often awarded to the spouse most competent to manage it. When one spouse is awarded a family business, that person is generally required to pay the other spouse for his or her share in the community property. The amount that is to be paid is generally decided by the court, and can be based on fair market value if there are documents stating the valuation of the business. In many cases, however, “legal value” is generally used.
“Legal value” refers to a value set based on the opinions of appraisers or accountants. In general, legal value is not concerned with the amount a business could be sold for, or what similar businesses have sold for in the past. Sometimes, legal value is fixed using investment value. In other cases, another approaches approved by the court are used.
Legal precedents have been set that use what is known as “buy-sell” provisions to put a value on a business that is to be divided during a divorce. However, it should be noted that contracts reached is generally concluded to have been concluded with excessive manipulation and may be rejected. Only if both spouses are represented by their own attorneys during negotiations will a “buy-sell” agreement be binding.
When the business value has been determined, the spouse keeping the business must compensate the other spouse with assets of equivalent value, with cash payment, and/or a promise to pay written into the decree.
Disagreements over a family business can become very costly, and coming to decisions about the family business to lessen the financial impact is very important. Mediators and agreeing to use one appraiser for the business are ways to lessen costs involved in dividing a family business during a divorce. Consult with an experienced family law attorney before signing any mediated agreement.
Will my attorney’s fees regarding my divorce be tax deductible?
Sometimes. If the fees incurred are more than 2% of your adjusted gross income, you may be able to deduct your attorney’s fees as a miscellaneous deduction on your itemized return. The amount eligible for deduction is limited to the amount paid in the course of a year. Deductible attorney’s fees are deductible insofar as the legal work done was completed in the course of securing income (such as getting alimony or collections on spousal support) that will be taxed on your income tax return. Spousal support is a form of taxable income, and, so, any money spent in getting or collecting alimony can be deducted, including application fees for obtaining, collecting, or modifying spousal support orders.
Outside of spousal support, during a divorce action, there are a few other reasons that attorney’s fees might be deductible on your income tax return. These include professional advice for tax plans, collecting income from royalties, collecting income from residuals, collecting income from a spouse’s retirement plan or income, or other income collection-related legal fees.
Usually, however, fees incurred for using a professional service (such as an attorney, appraiser, or accountant) in the course of a divorce proceeding are not deductible on your income taxes. These exclusions include monies spent in collecting child support, divorce matters not related to income, paternity cases, and all court costs (including filing fees). Unless the action directly pertains to the collection of income, attorney’s fees during a divorce will not be tax deductible, even if the fees are incurred while protecting your business. These are known as “personal expenses,” and cannot be deducted.
Some costs may be allowable deductions, however, including:
Fees incurred while structuring a division of assets for tax purposes
Fees incurred for appraising assets during a settlement of property
Fees incurred structuring a trust for spousal support
Fees incurred in the process of estate planning for tax purposes
Fees incurred while preparing a settlement agreement for tax purposes
Fees incurred while structuring spousal support deductions
Fees incurred during the process of determining dependents
Fees incurred getting tax advice in preparation for divorce
Fees incurred while writing a QDRO (Qualified Domestic Relations Order)
Fees incurred during the defense of a property title that may be capitalized
The best advice is to itemize legal fees directly relating to income production and collection and advice that involved tax advice relating to your divorce proceedings, and itemize all other legal fees separately. Most attorneys get advice from an accountant and send you an itemized list of deductible legal fees and non-deductible legal fees. The IRS will get a copy of this list should your deductions be questioned.
Your divorce can be completed much faster and less expensively when you carefully plan your case. How your case is handled can very important, and, if done right, can save you a lot of time and money. Knowing what actions will happen when, what you want to accomplish, and how you will achieve those goals are the main ways that planning your case with an experienced divorce attorney can help you get through your case quickly, and with as little expense as possible.
One of the steps in the good planning for a divorce is finding a divorce attorney that is right for you and your specific case. Millions of people file for divorce each year, and many do not give much thought to the things they will require of their divorce lawyer.
A good divorce lawyer guides his or her clients through the process of a divorce from beginning to end, and helps you get the outcome you desire from your case. A poor divorce attorney can take a bad situation and make it worse.
The best way to find the divorce lawyer that is right for you is to do some research. Make a list of criteria pertaining to your case that is important for your potential attorney to address. Ask friends and relatives for recommendations, look over the attorney’s web site, make a list of potential lawyers for your case, and call each of them up. Ask questions of each potential attorney, and schedule consultations (many attorneys offer free initial consultations to discuss a case) to interview good candidates. Ask each lawyer how he or she will handle your case, specifically, and what his or her strategy might be based on the information you provide. Ask how long he or she thinks your case will take to complete.
When you find an attorney that satisfies all your criteria, hire him or her, and follow up with your attorney on a regular basis to make sure that the plan is being followed and that your goals are being met. This can save you many headaches and frustrations as your case progresses.
By law, in the state of California, six months must pass before you can have a marriage dissolution proceeding. Until you receive a judgment granting you the divorce, you are not eligible to remarry. The six month time period begins on the date the other party was served with the legal papers required for your case, not from the date you filed.
If your case is complex and contested and is taking a long time to settle, your attorney can apply for what is known as a “Bifurcation.” This means that, for the purposes of getting remarried or for tax reasons, you can be legally defined as single. What this means is that you will be considered legally divorced, but any and all other issues that are not settled will still be decided at a later time through mediation, settlement, hearing, or trial. There are cases where a bifurcation is granted only when certain conditions are met. A qualified and experienced divorce lawyer knowledgeable with California divorce law will be able to help you with this process.
A summary dissolution is faster, easier way to get a divorce. In many cases, all you will need to do is file a few forms; you may not even need to see a judge or hire an attorney. Most divorcing couples won’t be able to get a summary dissolution and will have to get a standard divorce. If you think that you may want to get a summary dissolution, it is in your interest to speak to a qualified California divorce lawyer to ensure that is the case, and to talk about your divorce, in case you are not able to get the summary dissolution.
Those applying for a summary dissolution must meet a few requirements. You and your spouse must have been married for fewer than five years on the date the petition for a summary dissolution is filed. The couple cannot have any children together that were born or adopted at any time before or after the marriage took place. The couple must not own any real property together and not owe more than $5,000 in debts incurred during the marriage (this does not include car loans). Excluding cars and money owed on assets, the couple’s assets must be valued at less than $25,000 total. Each spouse cannot have assets worth $25,000 or more that are held separately. Both spouses must agree that neither of them will seek alimony (spousal support or spousal maintenance). At least one of the spouses must have lived in the state of California for the previous six months and in the county where the forms will be filed for the previous three months. Both parties must sign the petition for a summary dissolution, pay the filing fees (or get a waiver for the fees), and sign an agreement to divide their property and debt prior to filing the summary dissolution petition.
Some divorce proceedings are simple and uncontested. In these cases, both parties agree to everything in the divorce, and the resolution of the case is often simple, quick, and easy. When a divorce is uncontested, it means that you and your spouse agree to everything – property division, child custody, child visitation, parenting issues, child support, alimony, etc – without any help from the court. In some of these cases, your spouse may not even have to respond to your initial filing. If no response is filed – because your spouse agrees to everything in the filing – you will likely be granted a default judgment. Uncontested divorce cases may be able to be concluded through the mail or with brief meetings with a judge or clerk, and, in some of these cases, filers may not have to go to court.
When any issue of your divorce is in disagreement, your case is contested. There isn’t anything you need to do to let the judge know your case is contested; if and when your spouse files a response to your filing listing the thing that he or she disagrees with, the judge will automatically know that your case is contested. If your case becomes contested, the judge cannot decide the disagreements for you; instead, you will have to set a hearing or trial date and file the proper forms so that the judge in your case can hear both sides.
If your case is contested, you might be able to work things out with a mediator, through negotiation, or by communicating with your spouse. If an agreement is reached, your case can become uncontested. Once this happens, you can cancel any future court dates that might have been scheduled.
In some cases, couples who agree to all the terms of their divorce may be able to apply for a summary dissolution.
Even if your case is simple and uncontested, there are often many forms that must be filled out and filed. This process can be overwhelming, and knowing what forms to file at what time can be confusing. If you have trouble with the forms required or filling them out, contacting an experienced family law attorney or a family law facilitator can be in your best interests.
It is possible to complete your case on your own with very little assistance from attorneys or legal professionals. Getting advice from an experienced family law professional can help you avoid expensive delays and mistakes. An experienced divorce lawyer can actually save you time and money, and help you decide how to best proceed with your case. An attorney’s advice is kept private, and, sometimes, you can hire an attorney to help you complete certain parts of your case (filling out forms, negotiating, appearing in court, etc), and, in these arrangements, you would complete the remaining tasks.
Knowing what kind of case you have, what forms to file, what procedures there will be to complete the case, and how to present the case in a hearing or trial are some of the things you might need to get professional advice about, even if you’ve decided to complete the case on your own. You aren’t required to have an attorney in, but, if you represent yourself, you will be held to the same standards as an attorney would be. The court will expect you to know how to present your case, and all the rules and procedures. No one in the court will be able to help you with your case once you are in court. If you choose to hire an attorney, you will responsible to pay his or her fees for representing you or helping you prepare for your case. The California courts cannot and do not provide free family law attorneys for family law cases.
If the expense of an attorney is an issue for you, the family law facilitators can help you. Every court has a family law facilitator office to help people through the process of preparing for family law cases, such as divorce, child custody, child support, alimony, and other family law issues. Though the facilitators cannot represent you in your case, or provide you with advice that will be held confidential, they can help you through the procedures and rules, and help you complete the necessary forms. Some facilitation offices provide workshops and meetings so you can get information. Check with your local family law facilitator to learn more about what services are provided at their location.
What is a divorce?
From a legal standpoint, divorce is the termination of a marriage, separating you and your spouse legally, meaning that, once the divorce is final, there are no more legal connections between the spouses. Every state in the United States requires that divorcing couples state a reason or reasons as to the divorce request when court papers are filed. These reasons are known as “grounds for divorce.”
What are California’s legal grounds for a divorce?
In the state of California, there is what is known as the “no-fault divorce.” California was the first state to adopt such a concept, and, what this means is that a divorce can be granted if there are irreconcilable differences in the marriage that have caused the union to break down. If a married person wants to get a divorce – even if the other party does not want to get divorced – that person can get a marriage dissolution.
What is a “no-fault” divorce?
In a “no-fault” divorce, one spouse sues the other for divorce, but, he or she does not have to prove that anyone did anything wrong to cause the breakdown of the marriage. Today, all fifty states provide for people to get divorces without someone being “at fault.” Persons wishing to file for a no-fault divorce simply state in the papers they file with the court some reason for the divorce that the court will accept; the most common reason is that the couple cannot get along. This is known most commonly as “irreconcilable differences,” or “incompatibility.” Though there are states in which couples have to maintain separate residences for a period of time (months, or even years) before the divorce can be finalized, California is not one of those states.
Are there grounds for a “fault” divorce in California?
There can be, depending on the circumstances. The most common ground for a fault divorce in the state of California is “cruelty.” This means that one spouse has had undue physical or emotional pain inflicted upon him or her by the other spouse. Other reasons for seeking a fault divorce are: adultery, abandonment (there are specified lengths of time to use this ground as a reason for your divorce), imprisonment (meaning the other spouse has been in prison for a certain length of time), and, finally, the inability to physically conduct sexual relations with the other spouse, but only if this was unknown to the other spouse prior to the marriage taking place.
What happens if both spouses are “at fault”?
If both spouses are found to have been at fault in the break down of the marriage, the court grants the divorce to the spouse who is found to be least at fault. This is known as “comparative rectitude.” In the past, when both parties of a divorce were found to be at fault, neither spouse was granted the divorce, which forced couples who no longer wanted to be together to remain married. Comparative rectitude corrected this issue so that the divorce could be granted to the least “at fault” party.
Why would you file for a fault divorce when no-fault divorces are so much easier?
Due to the fact that some states require that divorcing couples maintain separate residences for long periods of time before filing divorce papers, some couples would rather not wait the required duration before getting divorced. Additionally, there are states that divide property differently depending on whether one spouse was at fault (or more at fault) than the other.
What is an annulment?
Legal annulments – also sometimes called “nullity” – are not the same thing as religious annulments. An annulment from the legal perspective means that a marriage was never valid and should never have occurred. The grounds for a legal annulment are extremely limited, and this means that annulments are quite uncommon. The most common reason for an annulment is bigamy. If there are grounds for an annulment in your case, how property is divided can be different from how it is handled during a marriage dissolution (divorce) case. These differences are contingent upon the circumstances of your case, and whether you had knowledge of the reasons for which you are seeking an annulment at any time during the marriage.
Can the other spouse stop a divorce action?
In the case of a no-fault divorce, no. This is because, by attempting to prevent the divorce, it proves irreconcilable differences by the very act of trying to prevent the divorce proceedings. If, however, the divorce action is an at-fault divorce, the other party could, potentially, prevent or delay the proceedings by defending him or herself against the fault charges. There are several defenses for this, including:
Condonation, which means that the suing spouse implicitly condoned the actions of the other spouse by failing to object to it, such as knowing about extramarital affairs but not objecting to those actions.
Connivance, which means that the suing spouse set up a situation so that the other spouse would commit a wrongdoing, such as inviting the other spouse’s lover to the house and leaving the pair alone for a period of time to connive infidelity.
Provocation, which means that the suing spouse incited the other spouse into committing a wrongdoing. For instance, if the suing spouse sues for a fault divorce using cruelty as grounds, and it is later proved that the suing spouse caused the other spouse into committing the act.
Collusion, which means that the divorcing spouses manufactured a reason for a fault divorce as they did not want to wait for a no-fault divorce’s separation period to be completed.
What sorts of documents should I put together?
Depending on your case and situation, you may need to collect contact information to give to your attorney in order for him or her to file subpoenas for various depositions, court appearances, and documents. Numbers that you don’t recognize may also prove helpful. In addition, look for contact information for professional persons and services, such as bankers (both personal and professional), accountants (both personal and professional), financial planners, bookkeepers, attorneys, mailing or delivery services, storage units, insurance agents (annuity, casualty, life, and key man), doctors, travel agencies, stock brokers, telephone answering companies, friends that might be trusted with financial matters, long distance telephone services, therapists, tax returns for both Federal and state returns with attached schedules for business filing, and computer services, such as digital forensics (to find hidden data), online services (you will need to get passwords to access information), and e-mail. Additionally, business records (tax returns, financial statements, and credit card information – both personal and for the business) are important.
Personal property considered in a dissolution are items that have value, such as coins, antiques, art, boats and other recreation equipment, guns, annuities, planes, trailers, heavy equipment, china, some furniture, collectibles, jewelry, sales receipts for items recently sold if the value was over $200, frequent flier miles, furs, rugs, and cars. You will also want to collect ownership titles for any car, watercraft, aircraft, or other titled object. If you have any items that have been appraised for insurance purposes, you may also want to collect those documents. Be sure what the reason for getting the appraisal was, as the amount of the appraised value can vary depending on the purpose of the appraisal. For example, tax appraisals often devaluate an item, while replacement insurance appraisals will often inflate an item’s value. You will also want to gather documents pertaining to life insurance; make sure the documents outline the beneficiaries, any loans against the policy, any encumbrances to the policy, and the cash value of the policy.
Get information on any and all bank accounts you know of or discover. These may be personal checking and savings accounts, business checking and savings accounts, and any other bank accounts. Collect monthly statements, and photocopy the back of checks when available. Make copies of check registers, pay stubs, deposit slips, cash transactions, applications for loans or credit, numbered accounts, withdrawals, and wire transfers. Check the documents for strange behaviors, such as repeated withdrawals for a specific amount. Search also for documents related to securities. Savvy investors are often involved in options trading or commodities trading, and firms that grant access to these services often require investors to provide information before opening accounts. The information contained in these applications can be helpful. Look also for pension or retirement accounts and make copies of any documents you find.
Documents may also be needed if your spouse has a small business. The records of ownership and other information can be used to place a value on the business. Some records you might want to look for are: insurance documents for any purpose, buy-sell agreements, balance sheets, stock documents, non-compete agreements, business financial statements, bank records, leases, investments, pensions, profit-sharing documents, lists of assets, contracts, loan applications, projections, marketing literature, and employment benefits documents. What these documents may help prove is if your spouse was shifting income and assets.
Other sources of income you may wish to find documentation for might include prize or lottery winnings, royalties, life insurance income, capital gains, severance pay, rental income, trust income, unemployment benefits, workers compensation, gift certificates, Social Security income, annuities, veteran’s benefits, or any other document that can be used to track property, assets, income, or money.
Will I be required to go to court in order to get my divorce?
The court system is the only way in which you will be able to end your marriage by any means, including divorce, nullity, and separation. Every state and jurisdiction has its own laws and rules by which this is accomplished. It is very likely that you will have to appear in court at least once, especially if your case is complicated and contentious.
How do I get started?
First carefully plan what you intend to do and how you want to go about it. Look at your situation carefully and decide what goals you want to accomplish. Once you have a clear plan, it is in your best interest to talk to a qualified divorce attorney familiar with California divorce statues and rules. Next, you would file proper papers with the correct court.
How long will my divorce take?
The answer to this depends on your specific case and the venue in which your case will be heard. Depending on the complexity of your case and the rules the court in your jurisdiction have in place that will pertain to your case, the process can take as little as a few weeks to a few months, to even years.
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The Law Offices of Damian Nolan has offices in Long Beach, Lakewood and Los Angeles. Our goal is to provide honest, courteous and diligent representation while striving to keep your legal costs down and making the legal process as easy as possible on you. We will protect your rights.