1.  Summary Dissolution (Summary Divorce)

A summary dissolution (summary divorce) for married spouses or registered domestic partners is available if the couple has no children, has lived together for less than five years, and owns no real estate together.  Each person must permanently waive any right to support by the other. Both persons must sign an agreement dividing their community property and debts, and sign any legal documents needed (for example, a title transfer for ownership of a car) to put their agreement into effect. 

Like a standard marital or domestic partnership dissolution, a summary dissolution requires you to wait six months from the day you file your dissolution request with the court.  Then you can file a set of legal documents asking for the court’s formal approval to end the legal relationship.  When the court signs these documents and they are stamped by the file clerk, your legal relationship is at an end. If you decide you don’t want to end the marriage or domestic partnership during the six-month waiting period, you can file papers to have your original request revoked. As with all dissolutions, it is best to consult an experienced lawyer about your rights before making any agreement ending your marriage or your domestic partnership.

2.  Annulment

An annulment – also called a “judgment of nullity” – is appropriate where the validity of the marriage or domestic partnership is in doubt.  This means that there was never any legitimate marriage or domestic partnership, because:

a.  The marriage or domestic partnership was void from the start.  There are three grounds under which it could be void:  incest, bigamy, or failure to follow the proper legal formalities. A void marriage never becomes valid over time.  

b.  The marriage or domestic partnership was “voidable.”  There are a variety of grounds for this.  They include one party being below the age of consent and having no parental consent, one party lacking mental capacity, and one party not divorced but in a situation where the first spouse is generally believed to be dead.  Other grounds include fraud, force, and lack of physical capacity. For most grounds, there is a four-year time deadline for having a “voidable” marriage declared void; when this time begins to run depends on the exact reason the marriage was voidable.  However, when the first spouse was believed to be dead but has not been proven dead, that marriage remains voidable.

A party to a void or voidable marriage or domestic partnership has “putative spouse” or “putative domestic partner” status if he or she believed in good faith that the marriage or domestic partnership was valid under California law.  In that case, the “putative spouse” may be entitled to property, support and attorney fees, just as though the marriage or domestic partnership had been valid.

3.  Dissolution

If the parties do not meet the requirements for a summary dissolution, and the legal relationship is not void or voidable, then the parties must proceed by a standard dissolution of marriage (divorce) or dissolution of domestic partnership.  However, the court will take the length of the marriage into consideration in deciding whether to award support to a former spouse or former domestic partner, and may occasionally consider the length in deciding how to divide community assets.  For example, if Kim Kardashian had not had a pre-nuptial agreement, the court may have chosen to give her more community-earned cash in lieu of her half of 72 days worth of her husband’s pension benefit accrual.

Every relationship is different, and you need to know your rights under California law to help ensure you get a fair divorce or dissolution.  If your marriage or domestic partnership is ending, the experienced divorce and domestic partnership dissolution attorneys at San Diego Law Firm can help you. We’ll discuss your options with you and help you get through all the complications of the process as smoothly as possible. Please call San Diego Law Firm’s experienced divorce and dissolution attorneys at (619) 794-0243 for an appointment. We look forward to helping you.

Currently, California is not issuing marriage licenses for same-sex couples.  While the Proposition 8 controversy is pending, though, same-sex couples can continue to form legally-recognized domestic partnerships.

Filing a Declaration of Domestic Partnership with the state provides couples with certain legal and financial advantages.  Among the benefits is the right of one partner to be covered under the other’s employer health insurance where the employer offers coverage to spouses.  Partners are also entitled to various property rights, inheritance rights, and state tax advantages. 

As one real estate expert notes, issues may arise when domestic partners jointly purchase real property without planning on how the property will be handled if the relationship ends.  In California, community property law applies to registered domestic partners, and most property acquired during the partnership will be equally owned by both partners.  However, property rights can be modified through a Domestic Partnership Agreement, which can specify how a couple’s assets and debts will be handled if they separate.  Couples may agree that if they separate, the home will belong to one or the other of them, or that one partner can buy out the other at an appraised price, or that the property will be sold and the net proceeds divided between the partners.

The attorneys at San Diego Law Firm have many years of experience in creating domestic partnerships.  If you are considering forming a registered domestic partnership, we can explain its benefits and potential drawbacks, help you decide whether a domestic partnership agreement is right for your situation, and, if you decide that it is right for you, we can draft a domestic partnership agreement that will protect all of your rights.  Please contact San Diego Law Firm today at (619) 794-0243 to arrange a consultation.

Under California family law, the most common legal basis for dissolution or for terminating a domestic partnership is “irreconcilable differences.”  This means that the marriage can’t be saved, because its breakdown is beyond repair.  After stating that irreconcilable differences have developed during the marriage, neither spouse needs to prove this in court, and there’s no need for both spouses to consent to the divorce.  Although, if it seems there’s a reasonable chance that the couple can reconcile, then the court must postpone the divorce proceedings for up to 30 days.  On the other hand, “incurable insanity” requires medical or psychiatric proof that a spouse was insane at the time of filing and remains incurably insane.  Even though California doesn’t allow fault based divorces, infidelity and other actions during the marriage may still be relevant, but for other reasons.  For example, if one spouse wasted significant marital money and other assets as a result of the affair, then sometimes that money may need to be accounted for.  This has nothing to do with placing the blame on one spouse or punishing his or her conduct, instead it’s about each spouse’s community property rights and responsibilities.  Meanwhile, adultery does live on as a ground for divorce in many other states.  An AP article published by MSNBC reports that in New Hampshire (which allows both fault and no fault divorces), adultery is not only a ground for divorce, but is still a crime despite past efforts to take the 19th century law off the books. 

For some, it may come as a disappointment that blame can’t be legally placed on one spouse for the divorce, but by eliminating the need to prove fault, California has also eliminated unnecessary delays, costs, and even the blocking of divorce actions through defenses to fault allegations.  What’s more, a no fault divorce prevents the added emotional turmoil that comes with putting one another’s conduct on trial, even when both spouses agree to the divorce.  We’ll guide you through the steps of divorce and help you in taking the best approach when resolving important questions of child custody and visitation, child support, spousal support (alimony), and property division.  If you’ve decided that you will need to file for divorce or legal separation, or are facing a divorce action, contact San Diego Law Firm’s family law and divorce attorneys as early as possible to preserve your family security and better protect your financial well being.  We can be reached at (619) 794-0243.

Even though California did away with common law marriage, couples who live together may still have rights to financial support and property division as if they had been legally married, but only under strict circumstances.  In these cases, if one or both persons in the relationship had a reasonable and good faith belief that they had entered into a valid marriage, but it turned out the marriage was void, then that person can be considered a “putative spouse.”  To be given the status of a putative spouse, it’s legally not enough to say that you simply believed you had a common law marriage.  Instead, the couple must have actually gone through the motions to get married, yet had something go wrong when trying to comply with the legal requirements for marriage (often this happens when one person was in a prior marriage and mistakenly thought that he or she was legally divorced).  Not only that, but this good faith belief that you’re married must continue throughout the marriage, if you find out that the marriage is invalid, then you lose putative status.  Recently, it was also established that these same principles can be applied to couples who were in an unregistered domestic partnership.  A person with putative spouse status will be entitled to share in property acquired during the invalid marriage or domestic partnership under our community property laws, and to any spousal support that’s required once the relationship is terminated.  A putative spouse may also have marital-type rights in other situations as well, such as workers compensation or retirement benefits.

A second category involves the rights of unwed couples who aren’t putative spouses (because they never tried to get married), but had an agreement to treat assets like community property or promised lifetime support, despite the fact that both partners knew they were not married.  Here, no one is entitled to support or property rights under California family law, but there can be rights created under the oral or written contract.  One person may have promised to provide support for the other that’s similar to spousal support (alimony), and this has come to be known as “palimony.”  These palimony actions started in the early 1970s after actor Lee Marvin (think The Dirty Dozen and Cat Ballou) broke up with his girlfriend Michelle Triola who he had lived with for several years.  After the break up, Triola took Marvin to court claiming that he had orally promised to financially support her for the rest of her life in exchange for her giving up her own acting career to take care of him.  Marvin denied he ever made that promise, and in the end, Triola lost her case, but in the process, the California Supreme Court had established the rights of unmarried cohabitants.  The problem for Triola, and many since, is that it can be very hard to prove the terms of an oral agreement.  For this reason, it’s important to put promises into writing and couples who live together without getting married or entering into a domestic partnership should be forewarned.  Many of these troublesome issues can be resolved with a written “cohabitation agreement” to help protect your interests if the relationship dissolves.  As the two of you contribute toward your financial future together, a cohabitation agreement can set out fair arrangements regarding property ownership and division, and any support, similar to how a prenuptial agreement works.  If you lived together before getting married, then both a civil palimony lawsuit and family court divorce (dissolution) action may be necessary, but note that palimony suits must be brought within a certain time period after the agreement is broken to prevent your claim from being barred.  Our skilled family law attorneys can prepare an effective and comprehensive cohabitation agreement, or pursue your rights and protect your assets in a putative spouse partition action or a palimony lawsuit.  To reach San Diego Law Firm, call (619) 794-0243.

Even if there aren’t any financial battles in your household, you may have other reasons for wanting a postnup.  Here are a few common reasons why couples get a marital agreement:

• To change the terms of a prenuptial agreement created before getting married
• To prevent your ownership in assets from being controlled by California’s community property laws
• To gift property to your spouse that would otherwise be only yours or shared by both of you
• If one or both of you has children from a prior marriage, to resolve inheritance concerns
• To account for significant changes in finances post-marriage, e.g. a spouse earned a degree, or put his or her career on hold to raise the kids

Not all marital agreements are created equal, and not all are valid under the law.  First and foremost, under California law, spouses are held to be in a fiduciary relationship with each other.  To be enforceable, a marital agreement will have to meet stricter standards than will a prenuptial (or premarital) agreement, as California’s family laws expressly prohibit a spouse from taking any unfair advantage of the other.  Among your many obligations is the duty to fully disclose all assets and their value, as well as to disclose all income, liabilities, and any rights that will be given up if a marital agreement is signed. 

As with any contract, a marital agreement can’t violate public policy, such as by taking away the family court’s ultimate authority to decide child support and custody matters.  Forcing a spouse to sign under duress, or as a result of fraud or undue influence are other clear examples of conduct that will make the contract unenforceable.  Also note that different California and federal laws apply to different types of transactions that may be covered by your marital agreement (e.g. changing rights to pension benefits or to inheritance and similar rights).  These laws must be complied with in order for your plans to be enforceable.  When writing your marital agreement, we’ll take precautions throughout the process to strengthen the contract, and to help ensure that your interests have been handled fairly.  Get your financial goals in order with a marital agreement by contacting San Diego Law Firm’s family law attorneys at (619) 794-0243.

At least for now, the uncertainty surrounding same-sex marriage continues, but committed couples can secure many important rights and benefits by forming a California domestic partnership. These rights and protections include family rights, the right to make medical care decisions, property rights, and inheritance protections. We’ll discuss the pros and cons in forming a domestic partnership so you and your partner can make the best decision for your relationship. Based on that, our family law attorneys can help you create a domestic partnership, or carefully prepare a cohabitation agreement that will meet your goals. Couples should also create documents such as a will and living trust to provide further financial and legal protection. Speak with our attorneys at San Diego Law Firm by calling (619) 794-0243.