Family Law Divorce Lawyers Tustin Orange County Attorneys California

There is a Distinction Between Obtaining a Divorce and Legal Separation:
Legal Separation does NOT dissolve the marriage; but is an avenue through which the parties may obtain judgments which determine custody, support, and property rights. [Family Code §2010, 2310, 2345, 2347]

Divorce on the other hand DOES dissolve the marriage and is referred to as the Dissolution of Marriage. It is an avenue through which the parties dissolve their marriage and restore their single status, while obtaining judgments which determine custody, support, and property rights.

Filing Requirements for the Dissolution of Marriage:
When one has decided to get a divorce, often you are at loss as to where to go and how to begin the process. In the State of California, to file for a divorce, residency requirements must be in order to ensure that the court has jurisdiction over your case. The courts cannot hear/rule on your case without proper jurisdiction.

A petition may be filed in the State of California and in the respective County IF at least one of the spouses has been: [See Family Code §2320]

a resident of California for six month

a resident of the county in which the case is filed for three months.

Please note however that if you are seeking legal separation or the nullity of marriage, there is NO residency requirement; however the court must have personal jurisdiction over the parties. [Forster v. Superior Court (1992) 11 CA 4th 782, 785-786; Whealton v. Whealton (1967) 67 C2d 656, 664]

The Parties - Petitioner v. Respondent:
Once you have decided to file for divorce, and know in what county and state to file in, it is important to take the next step and submit the actual Petition of Dissolution.
The party filing the procedure with the county’s family law divorce court is referred to as the Petitioner. Usually, it is the Petitioner who controls the speed of the process.
The party that is served with the divorce papers is referred to as the Respondent. The Respondent responds to the Petition of Dissolution in the form of an Answer.

Grounds for the Dissolution of Marriage: When submitting the Dissolution of Marriage Petition, you must state the correct California arguments upon which the dissolution of marriage is being sought after. However, it is important to understand that it does NOT matter who caused the divorce. California is a “No Fault” State; therefore someone who is committing adultery may submit a petition for dissolution without being penalized.
Divorce (break up of the union) or legal separation of husband and wife may be established on the following facts presented to the court:

Irreconcilable differences that have caused the irremediable breakdown of the union

Terminal insanity (not curable). [Family Code §§2300, 2310]

In essence, any facts brought before the court, which are significant reasons to end the marriage and appear unsalvageable, will aid in the granting of the dissolution of the marriage.

Issues that Will Be Heard:
The Superior Court of California, County of “? “, is the court that will oversee your divorce proceeding. A case number will be generated and this court will have jurisdiction over your case. Other matters associated with the breakup of the union will usually be heard in the same court. For instance, child and spousal support, visitation rights, children/child custody, property settlements and debt distribution, will be heard by the family law court in which you have filed your Petition.

Child Custody:
One of the most contentious issues that arise in a divorce is Child Custody matters. The term, Child Custody Battles, are too often descriptive of the manner in which this issue is dealt with. Too often children are put in the middle of the parties and used as pawns for financial and egotistic gains. At Yanez & Montes we are sensitive to the needs of children and always look out for their safety, health, and welfare. When children are involved in a divorce, it is their best interest that is put in the forefront.
California Courts, alike, try to keep the best interest of the children while making their rulings as to who shall be awarded custody. At times, the court may appoint an attorney for the children. This attorney is referred to as “minor’s counsel”.
Attorney Bettina Yanez is a court appointed minor’s counsel in Orange County, California, and represents those children the court feels need legal representation. Attorney Yanez as minor’s counsel, interviews all essential parties and makes a recommendation to the court as to who will provide the best welfare for the children. The court then establishes a custody order.
This experience is invaluable and helps Our Clients when preparing as to the custody portion of the case.
The following are some factors that the Court considers when deciding which parent is more suitable to care for the children:

The children’s overall safety, health, and welfare;
Either parent’s history of abuse;
Either parent’s criminal history;
The percentage of contact with either parent that the children have had;
Illegal use of drugs or alcohol abuse by either parent

Child Support:
Generally, once custody has been determined, a Court will award child support. California child support is calculated on a computer program available to courts and attorneys.
Several factors are entered into the program in order to determine the child monthly support. Some of the information entered is the parent’s income, and percentage of time spent with the children
Income is validated using present and prior w-2’s and income forms.
California’s uniform guidelines adhere to:

The parent's obligation to support their minor children
Responsibility falls on both parents for the welfare of the children
Parent's true income and degree of responsibility for the children is taken into account objective
Portion of child’s support is allocated based on parents ability to pay.
The children are the main priority
Standards of living of both spouses should be shared by the children

The guidelines try to find to reasonable and effective resolutions to disagreements between parents and attempts to avoid litigation
Sometimes special situations occur and the support falls short of the guidelines set by the formula. This is where you need your attorney to argue and present the facts before the court. Yanez & Montes are experienced to take on this task of getting what is fair and just for you and your children.

Distribution of Property/ Assets:
After one has decided to get a divorce, and the initial shock and pain has subsided, one must decide with their spouse how to distribute their assets. It is at this stage, where the combat of divorce often begins. If one is obtaining a Divorce in California, the words Community Property and Separate Property begin to become real concepts.

Here at Yanez & Montes, we offer guidance and support in distributing the assets in a fair and just way for Our Clients and in accordance with California Law. We do the investigating, negotiating, and settling and relieve Our Clients from the stress of fighting a battle.

The State of California is a Community Property State. This means that generally all property that was obtained throughout the marriage will be equally divided 50/50 between you and your spouse by the court. Separate Property Assets however will not be considered Community Property and thus will not be divided. Such Separate Property includes gifts, inheritances, or generally, things that you acquired prior to marriage.
To invalidate this community property presumption the following is commonly presented:

There is a valid pre-nuptial agreement and/or post-nuptial agreement, or other written contract in place that clearly outlines otherwise;
A spouse provides proof that the parties entered into a written contract, stating the property is separate and not joint;
A spouse provides an unmistakable declaration in the deed or additional document confirming the property was obtained as separate property and not community property.

Sometimes the court may grant the property of the community estate to one party in order to seek an equal distribution of the estate. This is often left at the discretion of the judge. Further, to counterbalance the court may award, from a party's share if it is deemed that there has been a deliberate misappropriation by one party to the leaving out the interest of the other party in the community estate. Therefore, presenting the proper evidence to the judge in a clear and reasonable matter is essential to getting your fair share.

The Following Property/ Assets Must be Distributed unless proved to be Separate Property:
The property/ assets of the parties generally fall within any of the following categories:

joint tenancy
property acquired during the marriage
property held in tenancy in common

When in the middle of a divorce, the parties often forget about their other valuable assets that may be worth more than anticipated. Such property includes the following:

pension plans
retirement plans
employment benefits
profit sharing

Debts Incurred by Both parties AFTER the Date of Separation:
In the midst of a divorce, Clients are often worried about the debts incurred by their spouses after the date of separation, but before the final judgment ruling. California Law is pretty precise: The party that incurred the expense generally shall be responsible if the expenses were of a non-essential necessity; therefore, the debt may not be offset by the court.
Common expenses incurred for the ordinary basics of life shall be confirmed and will be subject to the parties' individual needs and capability to pay at the time the debt was acquired

Spousal Support:
The court will use the following factors when assessing whether or not a party is entitled to spousal support:

the duration of marriage;
the financial situation of both parties;
the amount of time a party needs in order to get back on their feet;

This decision is usually left to the discretion of the court/judge, which they look at on a case-by-case basis. More modernly, males also are becoming entitled to spousal support.
It is important to note that some judges have the reputation of favoring a particular gender or the earning power of the spouses. Your attorney should be familiar with the judge’s past rulings. Remember, judges are also creatures of habit; therefore, their past rulings are usually a good gauge to rely on. Yanez & Montes have the familiarity, experience, and skill necessary to get you the spousal support you deserve.

Judge’s considerations before ordering spousal support?
The following factors are taken into consideration:

The earning capacity of each party required to maintain their standard of living
The aptitude of the supported spouse; the earning potential for those abilities.
The required timeline for the party to developed or polish their skills. This may encompass returning to school and seek new skills in order to better market themselves in the work force.
Time spent by the supported party dealing with domestic obligations that may have weakened their earning potential. For instance, a party that stood home for several years raising their children may be out of the loop with new procedures, technology and skills within the work force.
The sacrifice made by the supported party in order for the supporting party to achieve their career goals. For instance, a spouse waiting tables at a restaurant while the other attends law school or medical school.
The aptitude/skills of the financially stabled party to provide spousal support; this may also include future income, assets and standard of living
The standard of living recognized throughout the marriage
Responsibilities and assets of each party
Duration of the marriage
The supported party capacity to take on productive employment without excessively interfering with the welfare of dependent children
The health and age of the parties
The history of domestic violence, among the parties, for instance… any form of domestic violence originating from the supporting party.
The parties tax status
Hardships to each spouse

It is important to note that the court aims to have the supported party self-sufficient within a feasible time. Marriages of long duration are often taken into greater consideration, while criminal convictions may be grounds for eliminating or reducing the spousal support.

A Checklist of the Principal Documents Required in California:
To commence and end your Dissolution of Marriage and/or legal separation in California, the following documents are generally submitted:

California Divorce Law: