A dissolution of marriage means divorce. It is a legal process in which a marriage is dissolved or terminated. A final Judgment of Dissolution of Marriage terminates the marriage, determines rights to property and obligations for debts between the parties, and provides court orders for child custody, visitation, child support, and spousal support. In California, divorce is ‘no-fault’ and does not require the consent of the other party. A divorce can be final in as little as six months. Once the marriage is dissolved, the parties may remarry.
A legal separation is the same as a divorce except that at the end of the process, the parties are still legally married and may not remarry. Some parties elect this option for religious or cultural reasons or because one of the parties has significant medical needs and may not be able obtain health insurance once no longer married to the spouse. After a Judgment of Legal Separation is entered, either party may file a separate dissolution action to terminate the marital status (i.e., to become divorced) but may not reopen the issues already decided in the Legal Separation (such as property and debt division). Once a Judgment of Legal Separation has been granted, neither party may amend the Judgment for a Judgment of Dissolution (a separate action for dissolution must be filed).
A nullity (also called an “annulment”) is a legal status which, if granted, means the marriage ‘never existed.’ A nullity can only be granted if certain grounds exist which the party can prove to the satisfaction of the court.
Dissolution/divorce/nullity: A Final Judgment of Dissolution or Nullity may not be entered unless one of the parties has been a California resident for the last six months, and a resident of the County in which the Petition was filed for the last three months, prior to the filing of the Petition for Dissolution or Nullity. Venue is proper in the Superior Court for the County where the Petitioner or Respondent has resided for the three months prior to the filing of the Petition for Dissolution or Nullity. The residency requirements for same sex couples who married in California but reside in jurisdictions which do not dissolve same sex marriage are different. A Judgment for Dissolution, Legal Separation or Nullity may be entered even if neither spouse is a resident of, or maintains a domicile in, California at the time the proceedings are filed if (1) the marriage was entered into in California and (2) neither party resides in a jurisdiction that will dissolve the marriage. For these same sex spouses, venue is proper in the county in which the couple was married.
Legal separation: There is no minimum amount of time a party must reside in California before filing a Petition for Legal Separation. A party may file a Petition for Legal Separation in the Superior Court of the county in which either the moving party or the responding party resides. A party which does not meet the residency requirements to file for a Dissolution of Marriage may instead file a Petition for Legal Separation and then convert the action to one for Dissolution once the residency requirements are met.
If the RDP was established in California, neither party must be a resident or have a domicile in California in order to file a Petition for Dissolution, Legal Separation or Nullity. For RDPs established outside of California, the Petitioner or Respondent must be a resident of California for at least six months and of the county in which the Petition is filed for at least three months immediately preceding the filing of the Petition.
“Petitioner” and “Respondent” are the titles given to the parties in Family Law matters. The Petitioner is the party who opens the case and the Respondent is the opposing (or Responding) party. These titles are never interchangeable, so a Respondent who files for a hearing as the ‘moving party’ will still be the Respondent on all documents filed with the court, and the Petitioner who responds to a Motion or OSC will remain the Petitioner on all court documents.
The date of separation is the date when either party does not intend to resume the marriage and his or her actions demonstrate the finality of the marital relationship. This may not mean that the parties actually live separate and apart but there is an intention to not remain married and there are actions which support this intention. This date is important because it is the date that the community estate ends and all property or debts acquired after this date are separate.
Community property is generally any real or personal property, wherever located, which has been acquired by a married person during the marriage while domiciled in California. Both parties equally own community property. The same applies to debts acquired during the marriage.
Separate property is generally any real or personal property acquired by a party prior to marriage or after the date of separation. Separate property also includes any property acquired at any time by gift, bequest, devise or descent. The earnings and accumulations of separate property remain separate property. Separate property belongs to the party acquiring it.
Legal custody refers to the right and responsibility to make decisions regarding the health, education, and welfare of the parties’ minor child. A court order for joint legal custody means that both parties have the right and responsibility for making these decisions; joint consent is not usually required unless the court specifies circumstances requiring joint consent. A court order for sole legal custody means that only one party has the right and responsibility for making these decisions.
Physical custody addresses the period of time each party will have the minor child in his or her physical custody. A court order for joint physical custody means both parties have significant periods of physical custody so that the child has frequent and continuing contact with both parties. Joint physical custody does not necessarily mean that the parties have a 50/50 custody arrangement. A court order for sole physical custody means the child resides with and is under the supervision of one party, subject to the power of the court to order visitation rights to the other party.
Guideline child support is the amount of child support which is presumed to be correct. The court uses a software program called Dissomaster to determine the guideline amount of child support. Dissomaster uses many factors in its calculations including, but not limited to, the parties’ income, the amount of time each party spends with the minor child, etc. The Dissomaster program may also be used to calculate temporary spousal support but not ‘long-term’ spousal support.
Spousal support (aka alimony) is a series of payments made by one spouse to the other spouse. A court may order one party to pay the other party spousal support on a temporary (aka “pendent lite”) basis and/or permanent basis.
A pendent lite order is a temporary order issued by the court. These orders can be issued at any time after the Petition is filed and before the Final Judgment is entered. In general, these orders are designed to maintain the ‘status quo’ of the parties until a final judgment on all issues can be ordered with respect to issues of property division, child custody, visitation, child support, and spousal support.
‘Service’ or ‘service of process’ is the procedure in which a party is provided with copies of certain documents filed with the court or notice of hearings or orders requested. Service can be done personally on the other party or, in some situations, by mail, publication, or posting. For most court documents, service must be done by a person over the age of 18 who is not a party to the action. The person serving the documents completes a Proof of Service which identifies what documents were served, when they were served, and who served them. The Proof of Service is then filed with the court.
The jurisdiction date is the date that the Respondent was served with a copy of the Summons and Petition. This date is important because it is the date that starts the clock running for the thirty day default and six months waiting periods.
Six months is the earliest possible time the marital status of the parties can be terminated. This time period begins when the Respondent is served with the Summons and Petition or when the Respondent appears before the court, whichever occurs first. The marital status will not terminate automatically (a party must first serve a copy of his/her financial disclosure documents on the other party and file the final paperwork with the court before the marital status can be terminated). Sometimes six months is not enough time for parties to resolve all of the issues in their case. In such situations, parties can file for a ‘status only’ judgment which allows the marital status to terminate before the other issues in the case are resolved.
An Order to Show Cause (aka “OSC”) is a legal pleading (i.e., document) filed by a party which provides a hearing date for the other party to appear in court and show cause as to why the court should not issue the order(s) requested. The party who files the OSC is called the moving party, and the party receiving the OSC is the opposing party. An OSC is different from a trial in that only certain, specific issues are addressed and these issues may be decided on the documents filed or by evidence presented in court. A trial is the final resolution of all issues remaining in the case and is usually decided by evidence presented in open court.
A mandatory settlement conference (“MSC”) is a conference set by the court before a trial. The parties are required to appear in person and make an effort to settle their case by agreement. If no settlement is reached, a trial will be scheduled.
When a child’s parents are unable or unwilling to properly care for a child, a person may seek to become a child’s legal guardian which requires appointment by the court. The guardian is required to assume important duties and obligations. For example, the guardian:
- Has the care, custody, and control of the child
- Is also responsible for providing food, clothing, shelter, education, and all medical and dental needs of the child
- Must provide for the child’s safety, protection, physical growth, and emotional growth
A guardian has the full legal and physical custody of the child and is responsible for all decisions related to the child. The child’s parents can no longer make decisions for the child while there is a guardianship. The parents’ rights are suspended – not terminated – as long as a guardian is appointed for a minor. Even when the child has a guardian, the parents are still obligated to financially support the child. The guardian may take action to obtain child support.
A guardianship of the person automatically ends when the child reaches the age of 18, is adopted, marries, is emancipated by court order, enters into active military duty, or dies. If none of these events has occurred, the child, a parent, or the guardian may petition the court to terminate the guardianship. However, it must be shown that the guardianship is no longer necessary or that termination of the guardianship is in the child’s best interest.
We welcome you to reach out to us by email or telephone! Call us at 707.542.2889 or click here to email us.