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San Jose Divorce Attorney Vivian C.
Carlson
Dissolution
Dissolution
in California is based upon the concept of "no fault".
This means that a party does not need to allege or prove
misconduct to obtain a divorce. Conversely,
misconduct such as adultery does not improve the
aggrieved spouse's position or entitle him or her to
more marital assets. There are two types of
marriages. A common law marriage is defined as one in which a
man and a woman live together for a period of time, (time varies
from state to state) hold themselves out as husband and
wife, and intend to be married. There is no civil
solemnization or licensing required. The second
type of marriage is a union between a man and a woman
licensed by the state of California and solemnized. In May, 2008 California marital law had been
changed to include same sex marriages by the California Supreme Court.
However, Proposition 8 has changed the California Constitution
to prohibit this judicially sanctioned union.
California does not recognize common
law marriages, still recognized in a handful of states,
unless a couple had a valid common law marriage in the
common law state in which they formerly resided before
becoming residents of California.
Closely related to marriage
is a domestic partnership. A domestic partnership is
defined as a union between a couple, regardless of gender,
that have registered their partnership with the California
Secretary of State. A domestic partnership must be
terminated by a dissolution in the same way that married
couples dissolve their union. The same laws of spousal support
and property division applicable to a marriage apply in a dissolution of a domestic
partnership. For same sex couples who are validly married
in other states their marriage proceeds by way of
dissolution of domestic partnerhip.
If you would like
further divorce information or have questions
about your marital status or domestic partnerships call
Santa Clara County divorce lawyer and mediator Vivian Carlson at (408)
287-3999 or (650) 941-3940 for a free consultation.
PROPERTY DIVISION
California is a community
property state. In California all property acquired
during marriage is presumed community unless it can be
traced to a separate property source. Upon
dissolution or legal separation, community
property is divided evenly between the spouses, with a
right to reimbursement for separate property
contributions. Separate property is property
acquired by a spouse before marriage or after the date
of separation or acquired during the marriage by devise,
inheritance or gift. The court will not divide separate
property of either spouse but there are exceptions
having to do with how the property was handled during
the marriage. The rules of separate property
division can be complicated. Please contact
Los
Altos divorce attorney and mediator Vivian Carlson for further
information.
CHILD CUSTODY
In California, there are two
kinds of custody, legal custody and physical custody.
Legal custody refers to the right of the parent to join in
major decisions regarding the child's upbringing and to have
access to various records. Physical custody, in
the traditional sense, refers to the right to have the
majority of time with the child, and to make the day to day
decisions involved in parenting. However, this
definition has lost this meaning. Parents who receive
joint physical custody in California
have
large periods of time with the
child, even though one parent may be the primary caregiver. If
you have questions regarding child custody please call San Jose Child Custody attorney Vivian Carlson
for a free consultation at her San
Jose (408) 287-3999 or
Los Altos office (650) 941-3940 or email her at
vivian@viviancarlsonlaw.com
CHILD
SUPPORT
In addition to property
division the superior court can award support.
Child support is based upon statewide guidelines with
the use of computer programs such as Dissomaster. These programs use complex algebraic
formulas to calculate support based upon the net,
after-tax income of the parties, factoring in the
amount of time the payor parent spends with the child.
There is some ability of the court to lower child
support if there are hardships of a narrowly defined
nature. The court usually divides the cost
of daycare necessary for a parent to work evenly between
the parties. If you would like to discuss child support
issues with San Jose child support attorney Vivian Carlson in
San Jose or
Los Altos please call (408)
287-3999 or (650) 941-3940 to set up a free initial
consultation.
SPOUSAL
SUPPORT
Spousal support is an area
that has fewer of the hard and fast rules that apply to
child support. There are two types of spousal
support in cases that go before a judge. Temporary spousal support
is set at the beginning of a case and lasts until the
end of the court proceeding. At that time,
permanent spousal support is set. The length and amount
of permanent spousal support depends upon several
factors, including the incomes and needs of the parties,
the length of the marriage, the standard of living
during the marriage, and the length of time necessary
for the supported spouse to become self supporting.
Efforts to become self supporting are required in most
cases. A vocational expert is sometime used to
assess the skills, education, and employability of the
supported spouse and help the parties fashion a fair
support award, both in amount and duration.
In regards to temporary and permanent spousal support
you are well advised to seek the counsel of a skilled
divorce lawyer to make this a fair and equitable amount,
for an appropriate length of time. Call San Jose
spousal support lawyer and Los Altos divorce mediator Vivian Carlson at (408) 287-3999 or (650)
941-3940 to arrange a free consultation regarding
spousal support.
As a San Jose Family Law
lawyer for over 24 years Vivian Carlson has seen the most
stress-free results from people who are prepared for the
dissolution process. If you are contemplating a
dissolution there are a few guidelines that will help
you prepare for the process emotionally, financially and
psychologically.
Before Proceeding
- Put your papers in
order. Keep copies of your important financial
documents, including tax returns, bank statements,
brokerage and investment accounts, wage statements,
employee benefit statements, etc.
- Establish credit.
Try to obtain credit cards in your own name.
- Have access to a car.
It is important to have a vehicle in good condition when
you separate, chiefly to get or maintain a job.
- Keep inheritances
separate. Try to keep money or possessions
inherited from others separate from your jointly owned
assets. Do not put title to these items in joint
accounts or on documents indicating ownership.
- Do not quit your
job. It is important to maintain your financial
and emotional independence in a dissolution
proceeding. On the other hand, if you have not worked
for long periods preceding a dissolution, and have been
supported by your spouse, you do not necessarily need
rush into employment.
- Keep an expense journal.
Keep a journal of all of your expenses, especially if
you think you may need spousal support.
- Keep your documents
secure. Make sure your documents are in a place in
which you have exclusive access. You may consider
a post office box.
- Prepare your spouse.
Discuss the reality of the situation with your
spouse. This may not apply if you are in an abusive
relationship and fear violence from your spouse.
Temporary restraining orders may be necessary for your
safety and that of your children. Please contact
San Jose and Los Altos attorney Vivian Carlson for
further assistance.
- Get support systems in
place. Try to get support from trusted
friends/family, spiritual and psychological advisors.
Keep the goal of divorce in perspective. Try to
terminate your union in a civil and respectful manner.
Obtain what is rightful under the law but remember that
compromise often enters into the process.
This list is not complete. Your
situation is unique to you. Consult an attorney before
making decisions.
The Process
A dissolution of marriage
can be obtained in an as little as six months or
it can take years, depending on the complexity of the
issues, the ability of the parties to exercise reason,
and the resources available to pursue the costs of
litigation. Attorneys fees for litigation, range
from a few thousand dollars to the tens of thousands of
dollars. The steps for contested divorce are: filing of
initial Petition and other documents, service of
documents, court appearance for temporary orders such as
spousal support, child
support, or restraining orders, mediation/evaluation
of child custody issues if any, filing and service of
Case Management Conference statement, attend Case
Management Conference, Judicial Custody Conference
(child custody), evaluation or assessment (child
custody), discovery, such as formal depositions,
service of Declaration of Disclosure, filing of
Declaration Regarding Service of Disclosure, filing of
Settlement Conference Statement, appearance at
Settlement Conference, filing and service of trial
brief, trial, Marital Settlement Agreement, Judgment,
entry of Judgment. This list may not apply in each
case and it does not include consultations and reports
from forensic experts, and legal research.
In addition to traditional
dissolutions in which each party is represented by
counsel, there are emerging alternatives:
Pro per dissolutions are
those in which parties proceed without a lawyer.
Self-help clinics are available to parties in pro per in
many counties throughout California.
Santa Clara County has a free clinic. The Family
Law Facilitator's Office, also known as the Family Court
Clinic, is located at 99 Notre Dame Avenue, San
Jose. It operates Monday through Thursday, 8:15
a.m. to 4:00 p.m. The staff at the clinic can help you
complete court papers, but they cannot go to court to
represent you or argue your case before a Superior Court
judge. If you wish to represent
yourself in court, you might sit in on a few of the
Superior Court Family Law "Law and Motion" sessions in
your county to understand how judges call the cases and
make their decisions. You can introduce
yourself to the Sheriff (bailiff) who is present at
every courtroom session and advise him or her that you
are there as an observer. All courtrooms are open
to the public and you have a right to be present (unless
are a witness in a case). You cannot bring minors
into a court.
Mediated divorces are those
in which both parties choose a trained neutral
professional known as mediators to help them settle all
of the issues of their case. There is no court
intervention or lawyers doing the bargaining for the
parties--the parties themselves negotiate the terms of
their divorce agreement, aided by a mediator. It works best if the parties are
reasonably certain of the extent of their marital
estate, and have mutual trust. Spouses often seek
the advice of an outside attorney during the mediation
process. More....
If you have further
questions about division of assets, child support or
spousal support, and whether or not you should proceed
in a mediated, pro per, or attorney assisted litigated
manner please contact the law office of San Jose
divorce attorney Vivian Carlson at (408) 287-3999 or
(650)941-3940 for a free consultation.
updated 1/2/2008
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