Getting divorced: What does it all mean?

Here are some terms you will hear and read if you are beginning a divorce or custody case in the California courts.

Dissolution: The legal term for divorce in California. It means the legal end to a marriage or domestic partnership. Division of property and/or child custody and visitation are usually part of a dissolution. Depending on the level of agreement between the parties, a dissolution can take as little as six months or as long as several years. You start a dissolution by filing a Petition for Dissolution on Judicial Council form FL-100 [] and summons FL-110 [].  You respond to a petition by filing a Response. [] If you and your spouse/partner have children, you will also need to fill out and file a Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) to show that the court has jurisdiction to make orders on custody or visitation.  Most mediators, including North Star Mediation Partners, will assist you in completing and filing the documents.

Legal Separation: Where parties live legally separate lives with no shared assets, but remain legally married. This may be appropriate where one partner carries the other on his or her insurance or where a partner’s religion prohibits divorce. A legal separation can be converted to a divorce by either party.

Date of Separation: This is an unsettled area of the law. It is generally understood to be the date a couple starts to live separate and apart and there is a complete and final break in the relationship. There must be both an intent to end the marriage by one party and  some action consistent with that intent. It is not enough to say “this marriage is over” if you continue to live as a couple after that. You must take some action to separate. Recent legislation has clarified that people may be considered separated even if they still live together under certain circumstances.

Community Property: All property acquired during the marriage/domestic partnership except gifts or inheritances given to one spouse. It includes all salaries, pensions, bonuses and cash payments to each spouse/domestic partner. Each spouse/domestic partner is entitled to half of the community property in a dissolution proceeding, even if the spouse did not earn the money.  Rather than splitting each asset down the middle, couples will often negotiate so that they each end up with assets roughly equal to half the value of the total value of all community property.

Separate Property: Property that either spouse/domestic partner had before the marriage, and any gifts or inheritances received by a spouse during the marriage.  Each spouse/domestic partner is entitled to keep all of his/her separate property at the time of dissolution.

Right of Reimbursement: Each spouse entitled to reimbursement from the community property for any separate property that was mixed into community property during the domestic partnership as long as the separate property can be traced or tracked The party claiming reimbursement has to show that the separate property can be traced.  This is a complicated process and often requires the hiring of a forensic accountant.

Legal Custody: The right and responsibility to make decisions related to the health, education and welfare of your child.

Physical Custody: With whom your child actually lives.

Joint Custody: Both legal and physical custody can be joint. Joint legal custody means that both parents have the right and responsibility to make decisions about the health, education and welfare of the child. Joint physical custody means that each parent has significant periods of physical custody, shared in such a way as to assure the child of frequent and continuing contact with both parents.  It does not automatically mean an exact 50/50 split of time with each parent. The best interest of the child(ren) governs the parenting time schedule.

Sole Custody.  Like it sounds, sole legal custody means that only one parent has the right and responsibility to make decisions for the child.  Sole physical custody means that  the child lives with and is under the supervision of one parent, subject to the power of the court to order visitation of the non-custodial parent.

Best Interest of the Child: The standard courts are supposed to use to make decisions about parenting time and decision making. If  there is a disagreement about who should have custody of a child, or how much time a child should spend with each parent, the court will make that decision based on what is best for the child, not what is best for either parent. There is no automatic preference for parents of one gender or the other in making custody determinations.

Mediation: Where spouses/domestic partners meet with a trained mediator outside of court to help them reach agreement on the terms of their dissolution.  Mediation is far less expensive and emotionally damaging than court proceedings. It works best when both partners want to reach agreement and agree that they do not want to resort to litigation.

Court-ordered Child Custody Mediation: In any dissolution where there is a dispute about child custody and visitation, the parties are required to go to at least one session with a court-employed mediator.  Depending on the county you are in, the mediator may make a recommendation to the court about custody and visitation in your case. That recommendation will carry a lot of weight with the court.

Litigation: The process of settling any disputes in your dissolution in court. The parties bring their disputes to a judge and the judge decides happens in your case. Court dockets are crowded and a judge is usually unable to spend more than 15 minutes on your case unless you have a long and expensive trial. Family court judges will be the first to tell you that going to court should always be a last resort to try to work out your family’s conflicts.

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