“I Want a Divorce, but Then What?” As a family law attorney, I tend to see a spike in divorces around the holiday season. Perhaps it’s because of all the extra stressors that come with holiday parties, family gatherings, gift giving, and social interactions. Regardless of the specific reasons, many married people desire to end their marriages, but fear what will happen to them after they ask for a divorce. This brief article provides an overview of the rights and remedies available under California law to spouses while a marital dissolution proceeding is pending.
1. No Fault Divorce. In California, public policy provides for no-fault divorce. Anyone who wants to end their marriage may do so on the basis of irreconcilable differences, regardless of whether there is any fault or misconduct by either party. There are also protections available to prevent spouses from being trapped in abusive marriages (or simply undesired ones) for lack of an alternative.
2. Support. Spousal support can be ordered to allow both parties to maintain their living conditions pending the final judgment in the matter. Most courts have adopted a formula approach to temporary spousal support based primarily on the income of each party.
If there are children of the marriage, child support can also be ordered. Child support is determined by a “guideline” formula based primarily on the income of the parties and their relative custodial timeshare.
3. Custody Orders. Parents often express fears that the other side will somehow obtain orders depriving them of all custody and visitation rights. However, unless there is a showing of immediate harm or immediate risk that the child will be removed from the state, custody orders can only be made after the parties participate in a mandatory custody mediation, and after both sides have had an opportunity to be heard by the court.
4. Attorney’s Fee Awards. In order to ensure both parties have equal access to legal representation, the court can order one party to pay any amount reasonably necessary for the other party to have legal representation. All that is required is a finding by the court that there is a disparity in access to funds to retain counsel, and that one party is able to pay for legal representation of both parties.
5. Domestic Violence. Restraining orders (including orders excluding a party from the marital residence) can be issued if the court finds there is reasonable proof of past acts of abuse, including abuse short of physical violence.
Conclusion: This has been a brief overview of the safeguards available under California law to prevent parties from being trapped in marriages for lack of an alternative. However, just as each unhappy family is unhappy in its own way, each divorce has its own unique circumstances. Patients who wish to explore ending their marriage should be encouraged to consult with a family law attorney to understand how the law may apply to his or her specific situation.