San Juan Capistrano Divorce Attorney

The mission city. San Juan Capistrano is the mission by the sea that's home to those missions your kids learned about and made you build for their project. Yeah...you remember those. But, what you don’t know is how much of a mission a divorce is. You probably hear wives’ tales, but I am here to lay it out.

Divorce can be a touchy subject but it’s worth finding your options and scenarios that can and most likely will play out. If you are thinking about getting a divorce or have started the process, odds are you have more questions than answers. These questions range from the necessity of going to court, the necessity of needing an attorney, how you will survive financially after the divorce, and everything in between. That is completely normal and fine to have more questions than answers, and that is what JFL is here for.

The current law says that California is a no-fault state. This strips away old common laws. This means, no one can be punished in the divorce. The family code has made it clear that irreconcilable differences are enough to file for divorce.

What type of separation do you need ?

To start, are you divorcing, ending a domestic partnership, seeking a legal separation, or seeking an annulment?

Because we live in the great state of California, ending a domestic partnership will be the exact same as a divorce. Domestic partnerships are afforded the same legal rights as marriages. The only difference is it is a different name to the court. Instead of a Dissolution of Marriage, you are seeking a Dissolution of Domestic Partnership. Every law written to say “spouse” will apply to your partnership but interchangeably apply to your partner.

If you want to have never been married, and the law allows it, you might be looking for annulment. This is where the court “ erases” any trace of that marriage. This will entail you will be “single” rather than “divorced” on paper. Not everyone will qualify. You cannot just annul a marriage because you do not want to have a divorce. Some of the general reasons may be:

1. Fraud or misrepresentation- you feel your spouse lied about something completely unforgivable.
2. No consummation of the marriage- your spouse is unable to sexually produce or perform and you did not know before the marriage.
3. Incest, bigamy, or underage party - the spouse is related by blood making the marriage illegal under statute, your spouse is married to someone else, or one of the spouses is not of age to consent to marriage and there is no parental approval.
4. Unsound mind- you or your spouse were unsound ( generally under the influence ) and not able to consent to the marriage.
5. Force- you were forced into the marriage.

A legal separation is when the law recognizes you as separated, but you’re still married. This option is usually for financial reasons, anywhere from taxes to insurance purposes. This does have cons, with the most notable being you cannot remarry as having two marriages at the same time is not legal in California.

You decide what “ type of divorce” you need. Now what…..

Are you eligible to file for divorce?

It is important to note that, to file for “Dissolution” in Orange County, you must be a resident of California for at least six months. Additionally, you must be a resident of the county in which you seek to file, for three months. So, in this case, you must have lived in O.C. for at least 3 months. After the initial filing, California law requires that the parties wait six months before the court can enter a final judgment of Dissolution.

After you determine you are eligible, then what?

To start a divorce, a “petition for Dissolution of marriage or registered domestic partnership,” must be filed with the clerk of the court. Like the name says you’re petitioning the court, or asking them, to dissolve the marriage they have on record for you.

Once that is done, what happens next? The person asking for the divorce, or as we all commonly call it, ‘ filing for divorce’, will have to let the other party know they are trying to dissolve the marriage. This means they will serve them with notice.

After serving the other party, he or she has a limited amount of time to reply. Or, if you have been served, you only have a limited amount of time to reply. This same process of serving the other party, give or take a few forms, applies to separations and annulments.

This is where the game clock starts. Everything you do after can be used against you, hinder your case, or advance it. The same goes for the other party. Ideally, this is why it is best to have legal help early on to make sure you do not do anything that ties your or the attorney’s hands.

What if we made a large purchase in another state?

The court sometimes divides the property under a concept called "quasi-marital" property. If the parties have moved to California from other states/counties, in a divorce action, the court calls the property that the parties acquired during marriage in other states/countries "quasi-Community property."

Types of divorce possible! ( yes the TYPES of divorces.. briefly)

Summary Divorce: Here the spouses have no children, minimal assets, and if any debt. Usually very simple, quick, and easy to have this done- minus the 6 month waiting period.

Default Divorce: This is usually the one most spouses pray for. The filing party is granted a divorce by default. This is where the other party is nowhere to be found, or they simply choose to ignore the case and not respond or participate.

Mediated Divorce: this is where you can use attorneys as a mediator to help you and your spouse communicate. This will help save on expenses, and if you and your spouse are filing paperwork without attorneys, it helps to have unbiased intervention. Remember even though your mediator is an attorney, they're your mediator, not your attorney.

Collaborative Divorce: here both parties have attorney’s and all four parties sit together and try to negotiate and settle. This minimizes court time, saves court fees, and usually is quicker than a contested divorce.

Arbitrated Divorce: This process is easily explained as rent a judge. This is not a way to “buy the judge”, but rather this method is efficient in expediting the process to have a trial at the ready on hand, and keep the matter more private.

Contested Divorce: A contested divorce is the type of divorce we all grow up to fear. These are the divorces dramatically exploited in Hollywood. Here both attorneys fight on behalf of the clients, and battle it out at trial. Generally, the attorneys are civil and try to negotiate and settle many smaller matters to reduce the trial length or even having one at all, but the parties are the ones calling the shots. This is the type of divorce that most people have staring off if they are not reasonable or considerate. Here, it is imperative that you remember, everyone in your family and involved is adversely affected.

Community Property

California is one of 9 states that have community property laws. Community property, in simple terms, means that after a marriage, the property, assets, and finances gained during the said marriage becomes shared. So, upon filing for a divorce, if no agreement was made otherwise, the property is usually divided 50/50.

Property Division :

Determining what type of property you have is the first critical step at establishing a solid foundation for your resolution of marital property. The parties are free to agree to all or any suggestions in dividing the assets, but there are also a handful of laws and cases that give an aspect on how to divide to remain fair. It is very helpful if you have a discussion while on speaking terms with your spouse about all the finances. This is applicable to everything from bank accounts, debts, pensions, retirements, and properties. Whether you do this nonchalantly, or transparently explain to them why you want this, having knowledge of this will let your attorney know what needs to be protected from being spent, destroyed, sold, or disposed of. Additionally having recent copied helps to prevent any excessive attorney fees for both parties in requesting these documents known as discovery. These fees are billed to both sides when the request is made and answered.

ATRO’s

Usually, in a divorce, a big concern is that when the responding spouse finds out about the divorce, he or she will begin transferring assets. Fortunately, your attorney can advise you on how to handle such a matter. I might have you swiftly file for Dissolution by serving the summons and petition so they bind your spouse to the terms of the automatic temporary restraining orders (ATRO’s). These restraining orders are clear and noticeable in the summons. These orders are to give notice to stop either party from getting rid of property. Since the summons and petition are filed together, it is important to let the attorney know everything happening and if your circumstances require an expedited filing.

Undue Influence :

When it comes to divorces, it is no secret that they get messy. While this is not the continuous case, it is the most recognized. Divorces generally become excruciating and churlish when the parties cannot agree on how to split the assets. This can be a disagreement on the value of an item, resentment for sharing an asset with that spouse fueled by a spouse’s disdain for the other, or due to a desire to create as much strife and complications in the proceedings as possible. In the event of a more civilized divorce, when a spouse uses the relationship between the two of themselves to conduct an interspousal transaction ( deal between the two) where the deal is advantageous to one spouse over the other, an issue of undue influence arises. This is an unfair agreement by the use of the spouse’s relationship with each other.

Fiduciary Duty :

Divorces do not only involve your spousal support, children, and assets, most people forget they affect your debts. That’s right, your credit will be affected by the divorce if you do not handle it correctly. Furthermore, a marriage is a fiduciary duty between the parties and they have a duty to inform the other parties of any purchase, bank accounts, and other related items. This is important to note because this can either help or hinder your case. You not disclosing any accounts can cause you trouble, or your spouse doing this will hinder them.

Who pays the spousal support?

Spousal support is determined by the section of the family code §4320. These include :

The standard of living that was established during the last 3-5 years of the marriage. This is basically what social class the marriage created for the parties. A determining factor is - can the person who is supposed to pay afford to pay. The length of the marriage is important was it under 10 years making it short or over 10 making it long. What are the financial needs of both parties, The earning capacity of the person to be supported. ( can this person get a job and keep the same type of life) Can the supported party work and not interfere with the children care The age and health of both spouses The obligations and assets, including the separate property, of each party The immediate and specific tax consequences to each party The supported party’s contribution to the supporting party’s career during marriage Documented evidence of any history of domestic violence between the parties or perpetrated by either party against either party’s child The balance of the hardships to each party Any other factors the court determines are just and equitable The goal that the supported party shall be self-supporting within a reasonable period, such as half the length of the marriage, unless the marriage is of long duration (over 10 years) Spousal support is generally tax-deductible to the supporting party and taxable as income to the recipient. It is best to discuss with your attorney reasons you believe you are owed spousal support or you cannot pay it.

Child Custody or Child Support …..

A huge part of divorce is the children. When there are children involved, your divorce expands threefold and now includes child support, child custody, and visitation, and in some cases paternity if a party raises issues on it. These child issues can be elaborated on under the custody page.

Don’t tie your, or your attorney’s, hands!

The biggest part of the whole divorce that you must remember is that you create your own path in this matter. Each party's actions adversely affect the outcome down to even a social media post. It all becomes a game of chess from the date of separation. It is only beneficial to you and to give your attorney room to work for you, to act as if the world were watching your every move. Being reasonable gets you further in the case, but being respectful, courteous, and polite, despite your feelings towards the other person, will help you more than you know. It helps to read up on the do’s and don’ts of divorce. Educating yourself on the process, and how the court views certain scenarios will make sure you avoid doing something that will land you in hot water.