There are certain divorce rules which you and your spouse must follow while the divorce is pending. California divorce rules prohibit both spouses from doing some things. Those rules are called temporary restraining orders and they take place automatically when the first set of divorce document is filed with the court.
The spouses will not be allowed to take their minor children out of state without each other written permission or a court order. The spouses will not be allowed to cancel or change the beneficiaries on the insurance. Any transfer property is prohibited as well. Any proposed extraordinary expenses must be communicated to your spouse at least five days prior to incurring these expenditures and be prepared to account for such expenses to a judge. These divorce rules are stated on the back of the divorce Summons.
Divorce grounds are regulations stated under which circumstances a person will be granted a divorce.
There are fault divorce and of no fault divorce jurisdictions. In fault divorces, the spouse is seeking a divorce because they stated the other spouse did something wrong that justifies a divorce. The examples of divorce Grounds under fault divorce are adultery, bigamy, cruelty, abandonment, criminal conviction.
California is non-fault divorce jurisdiction. There are two grounds for divorce in California: Irreconcilable differences and Incurable insanity. When you file for a divorce in California and you need to fill petition FL-100, section 6 (a) you need to mark box (1) Irreconcilable differences or box (2) Incurable Insanity. Most of the time it goes by Irreconcilable differences. For “Incurable Insanity” you need medical proof under Family Code §2312 (“…including competent medical or psychiatric testimony, that the insane spouse was at the time the petition was filed, and remains, incurably insane.”).
Couples and their mediator (or their attorney) will work on resolving the issues raised in the divorce. If the couple reached an agreement, they might not have to go to the court. If couple are unable to reach an agreement, they need to appear in court for the trial in which and a judge will make the decisions.
If your spouse injures you
If your spouse injures you or someone in your family, you should call the police immediately. The police can contact judicial officer to issue an Emergency Protective Order. Such order will prohibit your spouse from coming certain distance of you. The order will also prohibit spouse from staying in the family home. An EPO can be in effect for seven calendar days or five court days, whichever is earlier. After that you would need to file for a Temporary Restraining Order (also referred to as a TRO) from you’re the court of the county you live in. Our experienced paralegals can help you fill out the necessary forms.
After an Emergency Protective Order (EPO) expires, you may seek a Temporary Restraining Order (TRO), which is a more lasting measure of protection than the EPO. When applying for a TRO, detailed forms must be filled out, including the reason for requesting the order, which must then be filed with the court. It’s important to provide as much information and evidence as possible about the incidents of violence or threats, including dates, to increase the likelihood that the TRO is granted. The TRO may last for about 20 to 25 days until the court schedules a hearing for a more permanent order.
Child Custody and Support
During the divorce proceedings, decisions must also be made regarding child custody and support. These decisions will center around who will have legal and physical custody of the children and how much the non-custodial parent will pay in child support. California uses a guideline calculator to determine child support based on both parents’ incomes, the amount of time each parent spends with the children, and other relevant costs such as health insurance. When making custody determinations, the court always looks to the best interests of the child, which includes the child’s health, safety, welfare, and any history of abuse by one parent. Parents can agree on a parenting plan together or, if no agreement can be reached, the court will determine custody arrangements.
The Discovery Process
In California, both parties involved in the divorce are required to complete a process called “discovery.” This is the formal process of exchanging information pertaining to the spouses’ assets, debts, income, and expenses. Full financial disclosure is necessary to ensure a fair division of property and to calculate child and spousal support accurately. Forms such as the Schedule of Assets and Debts (FL-142) and the Income and Expense Declaration (FL-150) may be necessary during this process.
Once all the pertinent issues such as division of property, child custody, and support arrangements are settled either through mutual agreement or court ruling, then the divorce can be finalized. The final divorce decree includes all the terms of the divorce and is a legally binding document. In California, the divorce does not become final until at least six months after the process began, which is known as the “cooling off” period.
Spousal support, sometimes known as alimony, may be temporary or permanent, depending on the length of the marriage and other factors including the age and health of the spouses, and their respective incomes and assets. The court has considerable discretion in deciding whether to award spousal support and if so, how much and for how long.
Hiring an Attorney
Although it’s possible to go through a divorce without an attorney, in situations where there are significant assets, complex child custody issues, or any signs of contention between the spouses, it is advisable to seek legal representation. Lawyers can help navigate the legal intricacies, negotiate on behalf of their clients, and ensure that all paperwork is filed correctly and on time.
In some cases where a couple may not be ready to divorce, they may consider a legal separation. The process is similar to divorce, in that court orders regarding assets, alimony, child support, and custody will be made; however, the couple remains legally married. This option can be preferable for those who have religious or moral objections to divorce or need to stay married to retain benefits, such as health insurance.
It’s crucial to understand the specifics of divorce laws which may vary significantly by state. The rules and processes outlined above pertain to California, but those seeking a divorce in another jurisdiction should consult local laws or a local attorney to understand their rights and obligations.