This page details the legal issues that divorcing couples face. Will you need to hire a divorce attorney? The goal of this page is to give you a brief overview of the complications you may face so that you can make an informed judgement whether or not to hire a lawyer. Please note that while this page describes laws it is not a substitute for consulting with an experienced Orange County family law attorney.
Topics Covered on this Divorce Page:
- Grounds for divorce
- The process of getting a divorce
- Different types of divorce
- Dividing marital property and debt
- Child support and spousal support
- Child Custody
- Clear indicators that you absolutely need a lawyer
- Consulting with a divorce attorney
Grounds for Divorce
Dissolution of the marriage or legal separation of the parties may be based on either of the following grounds, which shall be pleaded generally: (a) Irreconcilable differences, which have caused the irremediable breakdown of marriage. (b) Permanent legal incapacity to make decisions. California Family Law Code §2310
California is a no-fault divorce state. Diosdado v. Diosdado. Orange County holds to the CA law. This means that the spouse asking for a divorce does not need to prove that the other spouse did something wrong that ruined the marriage. A spouse simply needs to decide that the marriage isn’t working anymore. Since California is a no-fault divorce state, there is no punishment for misconduct in a marriage except in extreme circumstances (like child abuse) where child custody may be withheld from the abusive spouse.
The Process of Getting a Divorce
To file for divorce in California, one spouse must have lived in the state for the past six months and in the filing county for three months. The spouse that files for the divorce is called the “petitioner” and the spouse that responds is called the “respondent.”
The only advantage to being the first to file is the court proceedings will probably happen in the county in which they were filed. If you and your spouse live in the same state but far apart in different counties, it may be wise to consult with a divorce attorney before letting your spouse initiate the proceedings.
There are five major “stages” of a dissolution.
- File the petition for Dissolution of marriage
- Response to the Petition
- Settlement or Judgment
The process can get extremely complicated. Click on this link to learn more about the divorce process in California. It may also be easier to consult with a divorce attorney as he can tailor the advice to your exact situation. A competent divorce atty can explain the process with little legal jargon. You’re lawyer should help you understand the process ahead, not make it more complicated!
Different Types of Divorce
There are a few types of divorce methods, some of which can be done on your own and some that require you to work with a divorce attorney. The end result of any of these is a dissolution of marriage. We help with all types throughout Orange County, CA.
Summary Divorce – this type of divorce is for couples who have been married or in a domestic partnership for a short amount of time, typically less than 5 years. They don’t own a lot of property, have children, or have much debt. Lastly, the couple must be in agreement over this divorce to file court documents jointly. There aren’t as many forms required in this simplified divorce because there are little complications.
Contested Divorce – This is the most complicated type of divorce, in which there are so many issues that can’t be resolved such as property division or child custody. These issues will then have to be brought in front of a judge to resolve. You’ll go through a process of providing each other information, settlement negotiations, hearings, and maybe even a divorce trial. In this case, you most definitely should have a divorce attorney working on your case.
Uncontested Divorce – An uncontested divorce is often the best choice if possible. That means that both spouses work together to come to an agreement on the terms of the divorce and file the documents cooperatively, without needing a formal trial or appearance in court.
Default Divorce – A default divorce is granted when you file for a dissolution of marriage and your spouse does not respond.
Fault and No-Fault Divorce – A fault divorce is one in which you had to prove to the court that your spouse is at-fault for ruining the marriage, with something such as adultery or domestic violence. A no-fault divorce, which is the option in every state now, only requires a person to tell the court that they have “irreconcilable differences” and cannot fix the marriage.
Mediated Divorce – a neutral third-party, a mediator, works with you and your spouse in a divorce mediation to resolve any disagreements regarding the split. The mediator is only there to help you communicate and to make it as friendly as possible, he/she doesn’t make any decisions for you and your spouse.
Collaborative Divorce – Both spouses work together, respectively with their own lawyers cooperatively to finalize the divorce. Each person agrees to release all the information necessary to have fair negotiations. If the divorce isn’t settled through this collaboration, then both parties agree to hire new attorneys to take your case to trial court.
Arbitration Divorce – A private judge, known as an arbitrator, is hired to make the same decisions that a judge would make. When the two have come to a stalemate on certain issues, they can decide to go through arbitration if they want to avoid going to court. Both parties agree that whatever is ordered by the arbitrator will be honored as if a judge had made them. The divorcing couple works with their respective divorce attorney to choose and agree who the arbitrator will be.
Dividing Marital Property and Debt
California is a community property state. Orange County is no different. “Community property” is any property that is acquired during the marriage. In California courts, property division is generally reasonable and fair if the parties can agree. Any property bought (or debt acquired) during the marriage is assumed to be jointly owned, unless there is written proof that the property or debt is separate.
Again, since California is a no-fault state, one spouse wouldn’t get less property because of misconduct while married. On the other hand, if there was economic misconduct, such as hiding of assets, the court may award the other spouse an amount that the court deems appropriate.
When it comes to dividing community property and fighting over assets, we highly recommend that you consult with a divorce attorney. Review our division of assets page for more information on this topic. If you have a premarital or prenuptial agreement, the rules are different.
Child Support and Spousal Support
Spousal Support are regular payments made from one spouse to the other, as agreed upon by the spouses or ordered by the court. The purpose of spousal support is to help the recipient spouse get back on his/her feet and to keep the same standard of living as he/she had during marriage. There are different types of spousal support that can be ordered by a judge, depending on a few factors as listed in Family Law Code § 4320:
- How long the couple was married
- Ages of each spouse
- Physical, mental, and emotional health of the spouses
- The earning capacity each spouse
- What debts each spouse carries independently, or together
- The needs of each individual to be able to maintain the same standard of living as during the marriage
- Marital misconduct, such as domestic violence, if applicable
Child support in California is based on the idea that a parent’s top priority is to support his minor children and that both parents should be mutually responsible for supporting their child or children even if they don’t share custody of the child. Spousal and child support are high priorities in California family law and will be enforced when ordered by the court.
Child custody proceedings are an important part of a divorce if the couple had children. If they cannot figure out child custody on their own, the family court will make a decision for them. In deciding the child custody arrangement, the judge will consider what is in the child’s “best interests”. This means asking what type of custody and who would offer the best opportunities for the child to grow up into a good, productive adult.
But this is an extremely complicated subject. If you need more information on child custody, visit our child custody page. If your soon-to-be ex spouse wants to move out of state with your children, you shouldn’t wait an extra second. You should contact a divorce attorney immediately to protect your rights to maintain contact with your children.
You Should Absolutely Hire a Lawyer if Any of these Circumstances Apply to You
- Children are involved
- The separating spouses disagree on child custody
- One spouse was a stay-at-home parent for many years, and the other was the sole breadwinner
- Your spouse is narcissistic
- Your spouse is or was abusive
- One or both spouses own a significant amount of assets or earns a significant amount of money each year
- There are any significant unpaid debts
- Your spouse is a sociopath
Consulting With a Divorce Attorney in Orange County
So how do you hire the right divorce lawyer in Orange County, CA? You consult with them and get a feel for their integrity and abilities. There are certain situations when you would must hire a divorce attorney, especially if you have a contested divorce or collaborative divorce. Several factors will indicate whether you should hire a divorce attorney or not, such as how friendly you expect this divorce process to be. Working with a California divorce atty will help you understand this divorce process better and will advise and guide you on how you should proceed with your specific situation.
Other Important Information
- What about getting an annulment? To learn more about annulments versus divorce, visit our annulment attorney page.
- What about domestic partnerships?
- What about divorce mediation? Visit our divorce mediation page.
- Interested in learning more about divorce settlement agreements? Click here.
- If you are a member of the military, or your spouse is, and you wish to get a divorce, visit our military divorce page for more information.
- A 2013 Huffington Post article showed that 8 out of 1000 marriages in California end in divorce each year.
- How are personal injury lawsuit earnings split up in a divorce? Find out by reading our blog article about injury earnings here.
- Worried about how your inheritance might be affected? Read about inheritance and divorce, here.
- People often abbreviate “divorce attorney” to “divorce atty.” Above, we use divorce atty as shorthand. Our goal is simply to help people who search for divorce atty find this page.
- Read this page if you want to speed-up your divorce.
- Need to know more about divorcing an alcoholic?
 California Family Law Code § 2550