Another type of action, separate from a dissolution, is a legal separation. A legal separation greatly resemble an action for divorce except that the parties are not free to remarry. One major advantage of filing a legal separation action is that, unlike a dissolution, there are no residency requirements.

A legal separation is not to be confused with the date of separation as explained in "Facts About Divorce." A person does not have to obtain a "legal separation" before filing a divorce.

Dissolution of the marriage or legal separation of the parties may be based on

1. irreconcilable differences which have caused the irredeemable breakdown of the marriage; or
2. incurable insanity.

There are many factors that dictate the length of time of the dissolution proceeding. For a general overview of the dissolution process, click here. Once the initial papers are filed and served on the opposing party, the quickest the parties can be divorced is six months and one day. However, property division, custody, and support issues may and usually take longer to resolve. The more complicated the issues, the longer it takes. However, while the property and support issues are worked out it is possible to get the divorce judgment entered. You will be "divorced", but the dissolution process will still be ongoing.

Remember, you cannot remarry until the judgment of dissolution is entered and filed. Merely filing for divorce and obtaining custody and support orders is no substitute for the judgment of dissolution.

Many people file for divorce, obtain support orders and then do nothing on their case. The judge and the courts will not divorce you. You must be proactive and seek the remedy that you desire, otherwise you will be in legal limbo indefinitely.

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A divorce in California always takes a minimum of six months, regardless. While it can take longer, it may never be shorter. This is called a waiting period.

The six month time period begins to run after the spouse not requesting the divorce has been served.

If one spouse fails to answer the petition, then the spouse that filed the petition for dissolution can attempt to obtain a default judgment of dissolution and have that judgment entered. However, there are important steps that the petitioning spouse needs to take to accomplish that. The spouse who does not file a response risks having orders entered concerning property division, support and custody. It is important that both parities be diligent about participating in all phases of the dissolution process.

California is called a "no-fault" state. This means that either spouse may divorce the other one for any reason. The consent of the other spouse is not required. This also means the court will not consider who is the nicer or better person in the divorce, or who did what to whom and when.

Once a divorce or legal separation has been initiated temporary orders can be entered for child support, spousal support, custody & visitation and other issues pending a final dissolution.

One of the parties to the marriage must be a resident of California for six months. Also, the party must be a resident of the county where the dissolution action is filed for three months immediately preceding the filing. There is no such residency requirement for nullity and legal separation actions.

A court may order that one party gets exclusive use of the marital residence for a definite time period. The party must bring the appropriate motion including valid reasons as to why that party should get exclusive use. The court may order exclusive use if, for example, there are allegations of domestic violence and the spouse and or the children are in danger. In fact, even if the abused spouse does not have legal or equitable title to the property the party who owns the residence may be ordered by the court to leave.

In the event you make significantly more than your spouse, or he/she does not have a job, you may have to pay a contributive share of his/her attorney fees, which will be based on his/her need and your ability to pay.

A modification is a change of an existing order. A party who wants to modify a court order must follow the same rules as in the initial action. The first step would be to file a motion with the court asking for the change. It is the burden of the party bringing the motion to demonstrate a change in circumstances that would justify the requested modification.

A Nullity Judgment restores the parties to the status of unmarried persons and results in the parties being free to remarry immediately. While a divorce dissolves the existing marriage, a nullity judgment erases the marriage and its implications from the onset, as though the parties had never married.

A Judgment of Nullity, or annulment, may be obtained under any of the following circumstances:

• Incest;
• Bigamy;
• Lack of informed consent to the marriage;
• The husband or wife of the prior marriage was believed to be dead at the time of the subsequent marriage, but in fact was not;
• Unsound mind;
• Fraud;
• Force, unless afterwards the party who was forced into the marriage freely cohabited with the other party as husband and wife; or
• Either party, at the time of the marriage, was physically incapable of consummating the marriage, and the incapacity appears to be incurable.
• Most people believe that time is a factor in obtaining an annulment. That is not necessarily the case. It is true, for most of the conditions, an action must be filed within four years of the discovery of, for example, the facts constituting fraud.

Also unknown to most people is that, even though a Judgment of Nullity voids the marriage, you may be able to obtain support, a division of property and restraining orders. Children do not necessarily bar a party from obtaining a Judgment of Nullity.

Collaborative negotiation is a conflict resolution process also called collaborative law or collaborative practice. This relatively new process is a joint effort by both parties and two attorneys to work out the existing issues. Collaborative negotiation is very similar to mediation with many of the same benefits (particularly saving both parties time and attorney's fees). As with mediation, it is also voluntary.

Should collaborative negotiation prove not to work for either party, he or she may unilaterally, and without reason, terminate their role in the collaborative process and proceed along the more traditional path of individual representation and court intervention.

Either or both attorneys may also withdraw from the process. If that is the case, the other attorney and the parties may continue in the process without the former attorney or substitution counsel may be retained.

Since collaborative law is designed solely for the purpose for settlement negotiation, neither attorney involved may become the "attorney of record" and represent the client in court. This takes away "positioning," personal attacks and the threat of court as a weapon during negotiations. This is particularly important in cases where the parties are not on the same emotional and financial footing.

Collaborative negotiation has tangible benefits that are not readily seen until the process has begun. Since the parties make a commitment not to litigate, the parties and the attorneys devote all of their efforts to a negotiated settlement (agreement) in an efficient and cooperative manner. Further, the parties develop a rapport with both attorneys. This takes away from the mistrust and fundamental differences each party brings to the divorce process that can cause mediation to fail or create prolonged litigation. Both parties can actively participate in their cases while, at the same time, having their interest protected--thanks to the presence of attorneys. Each party can only benefit by a process that does not involve court intervention, requires full disclosure and exchange of information and provides an opportunity for the parties and attorneys to engage in effective problem solving in a totally confidential manner.

The roles of the attorneys are very important to the process and are carefully defined and limited. The attorneys act to encourage and explore the entire range of settlement options and alternatives. The attorneys exchange information, research and ideas and commit themselves (and the clients) to resolving the issues.

It is very likely that the first meeting will be spent collecting information from each party, their positions and desires. The attorneys will then review the information to seek out possible solutions and explore the entire range of settlement options and alternatives. It is at this point that it is very important that you have chosen a qualified attorney, usually someone with specialization in family law, so that he or she may best analyze all options available to you and your spouse, including considering all tax ramifications of any agreement you may enter into.

After all of the information has been gathered and reviewed, negotiations can then begin. It is important that all of the information has been gathered and looked at so that any practical proposals for settlement can be considered. It would not be a good idea to agree to divide a 401(k) plan if there is no idea as to its value and what the potential tax consequences may be. It may even be necessary to seek outside assistance from a CPA, actuary, or real estate appraiser.

It is at this stage that it is imperative that each party and their attorneys take a pragmatic stance on the issues to encourage settlement and, if reasonable, compromise to reach this settlement. Recently approved Guidelines and Principles Governing the Collaborative Law Process and the Stipulation and Order Re: Collaborative Law have come into use in formalizing and completing the process.

Having two attorneys involved would seem to produce the same cost as litigation. It really does not. In a traditional setting of two parties, two attorneys, costs quickly add up with court appearances (and the time spent waiting for the case to be called), preparation for court, depositions and other formal discovery methods. Collaborative negotiation allows the parties to focus on their own issues and control the process as compared to the control attorneys and the court have in litigation.

If the parties cannot agree among themselves, then a judge will decide what the custodial arrangement of the children will be. The judge makes this decision based on information he is provided by the parties, and a mediator, and rules according to what will be in the children's best interest.

Child custody is generally determined by keeping the children with the primary caretaker. This is generally the person who is responsible for the children's daily needs, such as taking the children to the doctor, taking them to school, caring for them during the day, putting them to bed at night, etc. One parent will generally have more time than the other to give the children more stability.

In any family law action, whether it be divorce, legal separation, paternity or any other type of case, when custody or visitation is in dispute, the matter must be mediated. The Court provides a qualified mediator to mediate these issues. In Sacramento County, and in most California counties, attorneys are not allowed to be present during the mediation process. It is the mediator's role to use his or her best efforts to encourage an agreement on these issues in accordance with what the mediator feels is in the best interest of the child or children.

In Sacramento County and many other Northern California counties, if an agreement is not reached, the mediator will make a recommendation to the Court. At that time, either party may request that the recommendation be made an order of the Court. Either party may also dispute the recommendation and request a hearing. No agreement or recommendation is legally effective between the parties unless it has been made an order of the Court. The mediator may interview the child or children during this process.

Physical custody refers to the physical direction and control of the child by the parent. Physical custody can either be "joint" or "sole". There is a presumption that joint custody is in the best interest of the minor child.

The children's best interests are the determinative factor in this question. The children's best interest are determined by looking at the following factors, in addition to any other factors the court finds relevant:

Normally, "custody" refers to the legal or physical control of the child. Physical custody can either be "joint" or "sole". Joint physical custody means that each parent has frequent and continuing contact with the children. Sole physical custody means that the child lives with one parent, while the other parent has visitation rights. Visitation is the time that the noncustoidal parent has with the child as specified in the court's order.

The difference between "custody" and "visitation" becomes important in move-away cases, that is, when the custodial parent wants to move to a different county or state.

Legal custody refers to the right of the parents to participate in decisions regarding the health, education and welfare of the child.

If a parent is awarded "sole legal custody", then that parent alone makes the above decisions on behalf of the child without the consent of the other parent.

If the parents are awarded "joint legal custody", then each parent possesses the rights above.

Once a divorce or legal separation action is initiated there are standard temporary restraining orders that apply to the parties which prevent either parent from removing a child from the state without written consent of the other parent or prior court order.

If more specific custody and visitation orders are necessary, a motion for temporary orders can be filed asking the judge to grant you the relief requested.

If you believe that there is an imminent danger that the children will be moved from California, you can file a twenty four hour noticed hearing (called "ex parte") asking to get immediate relief enjoining the other parent from moving with the children.

A parent entitled to custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child.

The court will look at a variety of factors to determine if the parent can move, including if the issue is an initial custody determination, whether the parties share joint custody, as well as the impact of the move on the child. In a matter involving immediate or eventual relocation by one or both parents, the trial court must take into account the presumptive right of a custodial parent to change the residence of the minor children, so long as the removal would not be prejudicial to their rights or welfare.

Most move-away cases are inherently fact-dependent and must be judged on a case-by-case basis.

California is what is called a "no-fault" state. This means that a person's morals cannot prevent him or her from getting custody of their children. As long as your behavior does not affect the well-being of your children, your behavior cannot be considered by the court.

If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child in making an order granting or modifying custody. Most judges will control how the testimony of the child proceeds and may even meet with the child privately to protect the child's best interest.

The Uniform Child Custody Jurisdiction Act (UCCJEA) was enacted to deal with our mobile society, and the UCCJEA deals with the specific question of where an action for custody should be heard. The general functions of the UCCJEA are:

1. To avoid conflicting orders in different states;
2. To promote cooperation between states to determine which state is the more appropriate state to make decisions affecting a child or children;
3. To make sure that custody litigation takes place in the state where the child has the closest connection and where the more significant evidence regarding the child's care, education, etc., exists;
4. To discourage continuing litigation over custody issues;
5. To deter abductions or the removing of children in order to obtain custody awards;
6. To avoid the relitigation of custody decisions of other states;
7. To facilitate enforcement of custody orders of other states; and
8. To promote and expand the exchange of information and other forms of mutual assistance between the courts.

In the State of California, the law provides that a parent, whether married or unmarried, shall have frequent and continuing contact with his or her child or children. A court may make a determination of custody and visitation in divorce, legal separation or nullity, paternity cases, and those involving domestic violence.

A parent, whether married or unmarried, also has the responsibility to support his or her children. The payment of child support however, is not a condition precedent to enjoying parenting time with your child or children.

Parentage is determined by either parent, mother or father, filing with the Court a Petition to Establish a Parental Relationship. If there is a question of whether or not true parentage exists between a father and a child, blood tests will be taken of the mother, child and alleged father. Blood tests are usually sufficient to determine whether or not there is a parent-child relationship; however, if it is unclear, there are more sophisticated testing that can be done. Prior to parentage even being determined, the Court may make orders as to custody, visitation and child support. Parents who marry after a child is born can have parentage determined in dissolution proceedings.

Where a step-parent requests visitation, each natural or adoptive parent, and the step-parent, will have the opportunity to be heard by a judge on the issue of visitation.

Child support is determined by a state mandated formula, and takes into account a number of factors. These include the amount of time each parent sees the child, the number of children, each party's income, and each party's tax filing status. Additional amounts may be ordered for child care expenses and health care costs (these are split 50-50).

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California law provides that both parents have a general obligation to support their minor children, both natural and adopted, whether or not the parents were married. Child support can be requested by one party from the other through an action for dissolution, legal separation, nullity, paternity or a domestic violence action.

In general terms, child support is based upon the incomes of both parties, which parent has custody and how much time the non-custodial parent has with the child or children. Once the information is collected, a computer program, used by both attorneys and judges, calculates support.

Child support is always modifiable and may be changed when either party's financial circumstances change or there is a change in the custody or visitation schedule. The revised law effective July 1, 1992 in most cases dramatically increased the level of support being ordered. A consultation with an attorney utilizing the computer program will give you an idea of the possible increase or decrease in the amount of support you are paying or receiving.

Generally, the duty to pay child support extends until the child reaches the age of majority, or age 18. However, if the child is unmarried and a full-time high school student, then support extends until that child completes high school or turns 19.

Payment of child support is considered a duty, so yes, you will have to pay child support. However, if the obligor's net monthly disposable income is less than one thousand dollars, then the judge may make a low-income adjustment to the guideline child support.

The court is empowered to impute income to a parent if the judge believes that the parent is capable of working, and that the labor market can provide such work.

The income of the parent's subsequent spouse or nonmarital partner shall not be considered when determining or modifying child support, except in extraordinary cases.

You have to file the appropriate papers with the court asking that the judge modify the existing order based on a change of circumstances. Usually this entails filing and serving on the other parent a new income and expense declaration along with a notice of motion or order to show cause. The other parent then has a certain amount of time to file their response. The court will give you a date and time for the hearing, at which point the judge will make a ruling. The modification is normally retroactive to the date the motion was filed, so if you believe that you are entitled to more child support, it is best to file as soon as possible.

Arrearages are support obligations that are past due. If a parent has been ordered to make child support payments, an action to recover an arrearage in those payments may be initiated.

Contempt and Wage Withholding
The non-custodial parent's duty to pay child support may be enforced by a contempt action, punishable by a jail sentence and/or a fine. In addition state law requires that child support payments be withheld from a non-custodial parent's paycheck from the time that child support is ordered.

Health Insurance Assignment
A health insurance coverage assignment is an enforcement tool for medical support that requires the non-custodial parent's employer (or other person providing health insurance to the non-custodial parent) to enroll the child in the parent's health insurance plan.

Personal Property Lien
A judgment lien on personal property is a lien on all interests in that property that are subject to enforcement of a money judgment, such as accounts receivable, equipment, inventory, chattel paper, farm products, and negotiable documents of title. The lien continues on the proceeds received upon the sale, collection or other disposition of the property subject to the lien.

Real Property Lien
The District Attorney will record support orders and judgments with the county recorder to create a lien against any real property in that county in which a non-custodial parent has or acquires an interest.

Franchise Tax Board Involvement
State regulations require the Family Support Division or local child support agency to refer delinquent child support obligations to FTB for collection. The FTB collects delinquent child support in the same manner and with the same force and effect as they are authorized to use in the collection of state personal income taxes. The system sorts through more than 200 million records to locate an individual's assets. Once assets are found, levies are issued that can attach wages, bank accounts (such as checking, savings, IRA and Keogh), rents, royalties, dividends and commissions. The FTB can also seize both real and personal property such as vacant land, cash, safe deposit boxes, vehicles and boats.

Other Enforcement Techniques
Other child support enforcement techniques include: liens, federal and state income tax refund intercepts, unemployment and state disability intercepts, lottery intercepts, writs of execution, contempt proceedings, suspension of professional licenses, driver's licenses and recreational licenses and also credit approval risk.

The court may order you to pay spousal support. The court will consider the extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account a variety of factors including, but not limited to the marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment; the length of the marriage; the extent the supported party contributed to the education of the supporting party; the obligations and assets, including the separate property of each party.

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Chances are if you make significantly more money than your spouse, you will have to pay spousal support. The general rule is that you will be expected to pay for one-half the number of years you were married, unless your spouse becomes self-sufficient, moves in with someone or remarries.

Depending upon the stage of the proceedings (e.g., whether the request is for temporary orders or permanent orders), each court utilizes a variety of factors. The judge will attempt to weigh all the factors specified by statute and appellate case law, and endeavor to make an order which will achieve "a just and reasonable result in each case". Some judges may compute 40% of the payor's net income less 50% of the payee's net income where only spousal support is an issue. If child support is an issue, then the judge may compute 35% of the payor's net income excluding child support paid by the supporting parent less 40% of the payee's net income.

The obligation to pay spousal support terminates upon the remarriage of the supported party unless the parties have agreed in writing to continue support.

The appropriate papers have to be filed with the court asking that the judge modify the existing order based on a change of circumstances. Usually this entails filing and serving on the other parent a new income and expense declaration along with a notice of motion or order to show cause. The other parent then has a certain amount of time to file their response. The court will give you a date and time for the hearing, at which point the judge will make a ruling. The modification is normally retroactive to the date the motion was filed, so if you believe that you are entitled to more spousal support (or should be paying less) it is best to file as soon as possible.

Unless agreed to by the parties there is a rebuttable presumption, affecting the burden of proof, of a decreased need of spousal support if the supported party is cohabitating with a member of the opposite sex. Upon a determination that circumstances have changed, the court may modify or terminate the spousal support.

The court has discretion in determining the duration of payment of spousal support. There is a goal that the supported party be self-supporting within a reasonable period of time. If the marriage was not a long-term marriage (usually one longer than 10 years), then a "reasonable period of time" is generally considered to be one-half the length of the marriage. If the marriage was a long-term one, then the court will look at a variety of factors in the determination of the duration of the spousal support.

The court may require the nonworking spouse to make reasonable efforts to provide for his or her own support needs. The court may order the nonworking spouse to submit applications for employment, attend job training seminars, etc. all as a condition of receiving support. The court also may impute income to the nonworking spouse as if the spouse was employed at a particular skill level. If the court believes that the nonworking spouse is a malingerer, the court is empowered to terminate or modify spousal support accordingly.

Separate property is all property owned by a married person before the marriage or acquired by gift, bequest, devise, or descent. Normally, upon dissolution of the marriage the owner of the separate property retains the separate property without division. This is in contrast with property that is treated as community property.

In addition, it is possible for a spouse to acquire separate property during the marriage. If the property acquired is characterized by the court as separate property, even though acquired during the marriage, then that property is not subject to division. The significant battles in division of property usually occur over the characterization of the parties' property. Often times the characterization depends upon a close factual scrutiny of the source of funds used to acquire the property, the intent of the parties in its acquisition, the subsequent use of the property, in what manner title is held to the property, and whether the property has been commingled with the community (e.g., bank funds), as well as other considerations.

Community property is all real or personal property acquired during the marriage while domiciled in California. In general, all property acquired during the marriage is subject to a 50-50 division upon dissolution of the marriage. Usually disagreements in the dissolution process arise when one party claims particular pieces of property (whether real or personal, including bank deposits, stocks, etc.) is separate property rather than community. If the property is characterized as "separate" then normally the property is not subject to a 50-50 division but rather the owner of the separate property is entitled to it without division.

The characterization of property as community or separate is complicated by many factors, not the least of which is the many exceptions that have been carved out of the standard definition. For example, if property is acquired as separate property during the marriage, then that property is not considered to be community property, and not subject to division. Questions of intent, title, source of funds, purpose of property all play a role in the property's characterization.

California is a community property state. This means that each party is entitled to one-half of any money or property that was accumulated during the marriage. For instance, if one party works and acquires a pension and a house while married to a stay-at-home spouse, the pension is equally divided and so is the equity in the house. However, if the one party received property or money as the result of a gift, personal injury settlement, or inheritance, that money remains the separate property of the party who received it.

If the property is considered to be separate property, then it will not be subject to division. However, it will be part of the community (that is, subject to a 50-50 division) IF it is considered to be "quasi-community property" ( and not separate property). "Quasi-community property" is all real or personal property, wherever situated, acquired by either spouse while domiciled elsewhere which would have been community property if the spouse who acquired the property had been domiciled in California at the time of its acquisition.

Pension and retirement benefits that are earned during the marriage are part of the community estate and hence subject to a 50-50 division. The pension or retirement benefits earned prior to the marriage or after the date of separation are not part of the community. Since only the amount of the pension or retirement benefit earned during the marriage is community property, when and how the pension or retirement benefit was earned, and how the pension or retirement benefit is to be paid, are all important issues that need to be addressed in the division of the benefits.

Premarital agreements, more commonly known as prenuptial agreements, are agreements that are entered into prior to marriage and dictate the distribution of property in the event of a dissolution.

The premarital agreement is a powerful tool. With it, the parties can override California's community property presumption and keep separate property separate. A good example of this would involve earnings. In California, wages and earnings acquired after the date of marriage (and before the date of separation) are community property. However, the parties can stipulate in a premarital agreement that all wages and earnings shall be separate property.

Another area where a premarital agreement is helpful is where one party owns a house prior to the marriage and this is where the couple choose to live after they get married. The house is the separate property of the person who bought it. However, the community can earn an interest in the house by virtue of making the mortgage payments with the couple's earnings. In order to avoid this outcome, the parties can stipulate in a premarital agreement that the community will not earn an interest in the house as a result of community earnings contributing to the mortgage payments.

Many parties want to address support with a premarital agreement. A waiver of child support is not enforceable.

There is a common belief in our society that only the wealthy can benefit from a premarital agreement; that is not true. Homeowners, single parents, business owners, grandparents and professionals are just a few who could benefit from a premarital agreement. Even individuals who are just starting out in life may choose to enter into a premarital agreement.

You should not enter into a premarital agreement until:

1. You have had an opportunity to read its contents;
2. You have consulted with an attorney who specializes in Family Law to find out whether the premarital agreement is right for you. This should not be the same attorney who drafted the document; and
3. You have had time to think about it.

Also unknown to most people is that, even though a Judgment of Nullity voids the marriage, you may be able to obtain support, a division of property and restraining orders. Children do not necessarily bar a party from obtaining a Judgment of Nullity.