I am thinking about getting divorced. What are my rights?
There are so many possible questions YOU may have! Please feel free to contact our office to discuss your personal situation, and to see how we can best assist you with your specific needs.
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California is a community property state.
When you get married you create a community. What this means is that the stuff you acquire when you are married, including all the money you earn from your job or business, all the money put into a 401K or some other retirement fund, real property, and all the other things that you buy or accumulate belongs to the community.
Look at it like a big box that everything that goes into. All the money and all the things in the box belong equally to both of you.
So when you separate from your spouse, all the money and other assets you acquired during your marriage gets divided equally between the two of you. Or as equally as possible.
However, you and your spouse can decide how to divide your property. If you want, you can divide it unequally, as long as both of you agree. If you cannot agree on how to divide your assets, then the Judge will divide it all for you. You should be aware that the Judge is required by the law to divide everything as equally as possible.
If you owned something prior to getting married, then it remains your separate property and your spouse does not get half. For example, if you had contributed to a 40IK plan, or had an investment account before you got married, then it remains yours.
But be careful. If you contribute additional monies to your 401K after you get married, then what you contribute during the marriage belongs to the community and half belongs to your spouse. So if you owned something prior to marriage, try not to put any community monies into it. That way, you keep your separate property separate. If you get divorced it remains your separate property and your spouse does not get one-half.
What about the kids? Hopefully, the two of you will not put the kids in the middle of your divorce. Working together to decide when the children are going to be with each parent is best for the children. If you cannot agree, there is a mediation office in the Courthouses. You can make an appointment with a mediator to assist you with reaching a custody agreement. If you cannot agree at the mediation, then the Judge will decide for you.
Custody of the kids breaks down into two parts, legal and physical. Legal custody is the overall management of the children's lives. Physical custody is the breakdown between the parties of the days and times each parent will have the children with them.
Depending on your particular situation, you may have to pay your spouse support (formerly called "alimony"). Calculations about how much temporary spousal support will be ordered by the Court are done by a computer program. However the parties are free to reach their own agreement on the amount of support to be paid. Permanent spousal support is determined by the court looking at 13 different factors, and depends on the length of the marriage, and the circumstances of the parties with an umbrella factor of marital lifestyle. Again the parties can reach their own agreements on permanent spousal support. Note, if you are married more than 10 years, the law considers this a long term marriage, and a party could be ordered to pay support for the lifetime of their spousal depending on the circumstances of the parties.