A Divorce ends your marriage or domestic partnership. When your divorce
action is finalized you will legally be single again and free to marry
or enter into a new domestic partnership. A divorce will also serve to
divide all property of the marriage or domestic partnership. Throughout
the divorce process you can seek orders from the court regarding child
custody, visitation, support, spousal/partner support, and restraining
orders.
In order to divorce in California you must meet the California residency
requirement. You must have lived in the State for at least 6 months
and within the county where you file your divorce at least 3 months.
A legal separation is very similar to a divorce in that all
property of the marriage will be divided in the process. Also,
in a legal separation you are free to seek the orders discussed
above including those for custody and support. The greatest
difference is that at the end of a legal separation you will
still be married to your spouse or otherwise still
bound to your domestic partnership. You will not be free to
legally remarry or enter into a new domestic partnership. As a
result, a legal separation is generally only pursued by those
who desire to stay married for religious reasons or who
otherwise need to maintain their status for the benefit of
insurance, etc.
Another difference with legal separation is that you can file for one
without meeting California's residency requirements. Therefore if you
desire to divorce in California but have not been in the state for at
least 6 months, you can file for a legal separation to begin the action,
and when appropriate, you can change your request to divorce instead of
legal separation.
An annulment is very different than a divorce or legal separation. An
annulment of a marriage or domestic partnership makes it as though the
marriage or domestic partnership never took place. This is only allowed
in situations where the marriage or partnership was either illegal (i.e.
incestuous) or otherwise void due to fraud, force, bigamy, etc. As a
result, annulments are very rare.
It is important to note that if there are children born from a marriage
that is later annulled, the parties will need to take steps to legally
establish parentage (see below) of the children since the marriage will
be treated as though it never occurred.
When a child is born to a married couple in California, the law will
always presume that the husband is the legal father of the child.
Therefore, unless the husband wants to contest this presumption
within the first two years of the child's life, there is no need to
discuss paternity for this child.
When a child is born outside of wedlock, however, even if the couple
lives together, there is no such presumption of paternity.
Therefore, the father must take an additional step to be recognized
as the legal father of the child. The potential father has several
options to do so. The easiest means is for him to sign a "voluntary
declaration of paternity." This is a documents generally signed at
the hospital when the child is born. By signing this document the
man states that he is the father of this child and accepts all of
the legal responsibilities for this child. No one should sign this
form unless he is absolutely certain he is the biological father of
the child and/or is prepared to permanently accept the full
legal/financial responsibility of the child.
A man wanting to establish his paternity of a child may also ask the
court to enter an order stating that he is the legal father of the
child. Any man that is not 100% certain that he is the biological
father of the child should always request genetic testing from the
court before either signing a voluntary declaration of paternity or
seeking a court order for paternity. Once you are the legal father
of a child, genetic tests will make no difference. You will be held
responsible for the well-being of the child even if you later
discover that you are not the biological father.
There have been several changes to the law regarding parentage in
domestic partnerships since 2005. Domestic partners should seek
legal advice when wanting to determine whether or not parentage has
been properly established.
Child Support is an amount of money that is calculated pursuant to a
state law formula that takes into account each parent's income,
expenses, and time spent with the child(ren). Child support is
intended for the care and support of the child(ren). Therefore,
child support can be requested anytime the two parents are not
residing together with the child(ren). Child support is generally
payable by the absent parent to whomever is providing care for the
child(ren) whether it is the other parent or another care-giver.
Child support is due from the date of a court order until the child
reaches 18 years old (or 19 years old if (s)he is still in high
school).
If the primary caretaker of the child ever receives public
assistance for the child in the form of cash aid or medical
benefits, state law requires the Department of Child Support
Services to file a case seeking child support against the absent
parent. The Department of Child Support Services will also provide
services of establishing and enforcing a child support order to
non-cash aid recipients, but only at their request.
Child support and child visitation are completely separate and for
the sake of the child(ren) must be treated as such. If there is a
current visitation order and a current support order you must
continue to allow visitation pursuant to the order, even if your ex
is refusing to pay child support. It is not proper (or legal) to
hold the children hostage for payment. This being said, however, if
you are entitled to child support there are many means by which to
collect. If your ex is being particularly difficult it is probably
in your best interest to seek the assistance of your local county
Department of Child Support Services in collecting and enforcing the
child support order.
Spousal Support, unlike child support, is not always ordered when
requested. By law, the court must review the specifics of each
relationship before ordering spousal support. Some of the factors that a
court will consider in determining whether or not to order spousal
support and for how long are:
length of the marriage
the age/health of each spouse
each spouse's ability to earn and expenses
who controlled the money during the marriage
Any order for Spousal
Support will terminate by law when the recipient remarries. The person
ordered to pay spousal support can also return to court to ask to
terminate spousal support if the recipient has experienced a substantial
unexpected change in income (e.g. wins lottery).
