In a California divorce, several key issues must be decided before the dissolution of the marriage is finalized. These decisions are typically addressed through negotiations, mediation, or, if necessary, court proceedings. Here are the main issues that must be decided in a California divorce:
1. Division of Property and Debts
- Community Property: In California, property and debts acquired during the marriage are considered community property and are generally divided equally between the spouses. This includes income, real estate, vehicles, retirement accounts, and other assets.
- Separate Property: Property owned by either spouse before the marriage or acquired during the marriage through inheritance or gift is separate property and is not divided in a divorce. However, any appreciation in the value of separate property during the marriage may be subject to division.
- Debts: Similarly, debts incurred during the marriage are generally considered community debts, and they will also be divided equally. Debts incurred before the marriage or after separation may be considered separate.
2. Spousal Support (Alimony)
- Temporary Spousal Support: The court may order temporary spousal support during the divorce proceedings to provide financial assistance to the lower-earning spouse while the divorce is being finalized.
- Permanent Spousal Support: After the divorce is finalized, the court may order spousal support based on factors such as the length of the marriage, the standard of living during the marriage, the earning capacity of each spouse, and the financial needs and abilities of each party.
- Spousal support is not automatically awarded in every divorce case; the court will weigh the specific circumstances before making a decision.
3. Child Custody and Visitation
- Legal Custody: This refers to the right of a parent to make important decisions about the child’s upbringing, including education, healthcare, and religion. Legal custody can be joint (shared by both parents) or sole (awarded to one parent).
- Physical Custody: This refers to where the child will live. Like legal custody, physical custody can be joint or sole. If one parent has sole physical custody, the other parent may have visitation rights.
- Parenting Plan: The parents may agree on a parenting plan that specifies the child’s living arrangements, school attendance, and visitation schedules. If the parents cannot agree, the court will make a decision based on the child’s best interests.
- Visitation: If one parent has sole custody, the other parent will typically be awarded visitation rights, and the court will establish a visitation schedule. Joint physical custody means the child will spend significant time with both parents.
4. Child Support
- Calculation: California uses a state guideline to calculate child support, which takes into account both parents’ income, the amount of time the child spends with each parent, the number of children, and other factors. Child support is designed to cover the child’s living expenses, healthcare, education, and other needs.
- Duration: Child support continues until the child reaches the age of 18, or 19 if they are still in high school and living at home. Support may also continue beyond the age of 18 if the child has special needs.
5. Health Insurance and Medical Expenses
- Health Insurance Coverage: The court will decide who will be responsible for providing health insurance for the children. If health insurance coverage is available through one parent’s employer, that parent may be required to continue providing it.
- Medical Expenses: The court may also order one or both parents to contribute to out-of-pocket medical expenses for the children, such as co-pays, dental expenses, and medical procedures not covered by insurance.
6. Retirement Accounts and Pensions
- Division of Retirement Assets: If either spouse has a pension or retirement account (such as a 401(k) or IRA), it may need to be divided as part of the divorce. This is often done using a Qualified Domestic Relations Order (QDRO), which is a legal document that allows the division of retirement funds without incurring taxes or penalties.
- Retirement accounts accumulated during the marriage are considered community property and are typically divided equally.
7. Tax Implications
- Filing Status: After the divorce, each spouse’s tax filing status will change. If one spouse is entitled to claim the children as dependents, they may be able to file as head of household, which could lead to tax benefits. The court may decide who gets to claim the children on their taxes or, if both parents share custody, create an alternating arrangement for tax purposes.
- Spousal Support Taxes: In California, spousal support is taxable to the recipient and tax-deductible for the payer (for divorces finalized before 2019). However, for divorces finalized in 2019 and beyond, spousal support is no longer tax-deductible for the paying spouse nor taxable to the recipient.
8. Name Change
- Restoring a Former Name: A spouse may request to restore their former name (before the marriage) as part of the divorce proceedings. If requested, the court will order the restoration of the name.
9. Domestic Violence Issues
- If there is a history of domestic violence, the court may issue a restraining order to protect the victimized spouse. Domestic violence can also impact decisions on child custody and visitation, as the court will prioritize the safety and well-being of the children.
10. Mediation and Settlement
- Mediation: Many California courts require mediation to help spouses resolve issues such as child custody and division of property before going to trial. Mediation involves a neutral third-party mediator who helps the couple reach an agreement.
- Settlement Agreements: If the spouses agree on the terms of the divorce, a settlement agreement may be created to outline how property will be divided, custody arrangements, and spousal/child support. If the agreement is accepted by the court, it will become part of the final judgment of divorce.
11. Post-Divorce Modifications
- After the divorce is finalized, either spouse can request modifications to certain orders (such as spousal support, child support, or custody) if there is a significant change in circumstances. For example, a change in income, a new job, or a change in the child’s needs could lead to a request for modification.
Conclusion
The key issues that must be decided in a California divorce include the division of property and debts, spousal support, child custody and visitation, child support, and any other financial or legal matters that arise during the divorce process. If you and your spouse can reach an agreement on these issues, the divorce process can be faster and less costly. However, if disagreements arise, the court will make decisions based on the best interests of the child and fairness to both parties. It’s important to consult with an attorney to ensure that your rights are protected and the divorce is handled correctly.