No Fault and Fault Divorce Laws

By Allysyn Overton, Esq.

California is a no-fault divorce state. This means that it does not matter whose fault it is that you are seeking a divorce. Well, it matters to you and your family on an emotional and social level, I’m sure, but it doesn’t matter to the divorce court. The divorce court will still follow laws of equitable division, standard support calculations, and best-interest-of-the-child standards in making orders in your divorce case. There are exceptions, of course. For example, I represented a woman whose husband had been having an affair for years, in her divorce. Her husband spent tens of thousands of dollars on his extra-marital affair, while my client and her husband were still married. We were able to get the divorce court order that he reimburse the community piggy bank every last cent he spent on his mistress during the marriage. Then, the divorce court divided the total of that. This meant that my client received a much larger equalization payment from the property order, because her husband breached his fiduciary duties to his wife, by spending their community money on non-community ventures. There are specific divorce laws against this. These laws require spouses to hold the same fiduciary duties to one another as they would a business partner. I’ve also had many divorce cases in which a person’s domestic violence perpetrations or substance abuse problems meant that that person started with supervised visitation of children. So, behaviors during the marriage can affect some of the orders the divorce court makes, but it will never affect whether the court will order a divorce or not. So long as there are differences that one person states cannot be fixed, the divorce court will likely grant the divorce.

A caveat to this is if the wife is pregnant. Because a child born to a marriage is deemed to legally be the child of the married partners, a court may not want to grant a divorce until after the child is born. It is too dangerous to do a paternity test while the child is still in utero, so waiting until after birth is best. At that time, if either party believes the child is not the husband’s, a paternity test can be done to confirm or deny paternity, and then the divorce court can make its orders about the divorce and any subsequent divorce issues, like child custody and visitation and child support.

All states recognize no-fault divorces, but some states require that the spouses live separately for a designate period of time, before either of them can file for divorce. In California, there is no requirement that the parties live separately before they file for divorce, but a court will wait at least six months and one day from the day the divorce petition was filed to sign the divorce decree. This cooling-off period was designed by the legislature with the idea that the parties might reconcile instead of getting divorced, during this waiting period.

Fault Divorce

Fault divorces are rare. Most states do not even recognize them. In the states that do recognize them, one of the spouses requests that a divorce be granted based on some fault of the other spouse. The most common required grounds for granting a fault divorce are

Infidelity

Abandonment of the other partner
Imprisonment
Incurable sexual disfunction
Cruelty or domestic violence

No state requires the spouses seeking a fault divorce to live apart for a specific period of time, before filing for divorce, like in a no-fault divorce. If the party is able to prove the other was at fault, he/she/they can often gain a larger equalization payment or support payment from the faulting party in their divorce decree. When both spouses in a fault divorce proceeding, prove the other is at fault, the divorce court may decide which one is least at fault and award a better financial outcome to the lesser-at-fault party and a divorce.

Divorce courts do not want to force anyone to stay in a marriage they don’t want to be in, and so, will almost always grant a divorce to the petitioner when requested.

Residency Necessary Before Filing for Divorce

Each state has its own divorce and property laws, so it is super important to determine where you are able to file for divorce. In California, you must be a resident for at least six months before filing for divorce, and a resident of your county for at least three months before filing for divorce. However, Washington, South Dakota, and Alaska do not require their residents to have lived there for any length of time before they can file for divorce. To file in one of those states, you merely need to be a resident of that state at the time you are filing for divorce.

Because divorce proceedings can take up to a couple years, it is best to file for divorce in your county of residence. That way, you can more easily navigate the courthouse and your divorce filings. However, sometimes, it is important to compare the different states’ laws to see which would be better for your circumstances, and file for divorce in that state. For example, California uses a “best interest of the child” standard in making child custody and visitation orders. It may find that a parent should only have weekend visitation for a while. However, in another state, it is standard that each parent has at least two consecutive weeks in the summer time. So, it may be better to file for divorce in that other state so that you can get more visitation. Keep in mind though, that in most situations, the divorce court that is deciding the divorce will also decide other matters related to it, such as property division and custody matters. That includes any changes in divorce orders. So, if you live in California, but file in Utah, hoping for a better outcome there in your child custody matters, you have set yourself up for a lot of inconvenience until your child reaches the age of 18.

Full Faith and Credit Among States

Courts honor the divorce orders of courts in other states. So, if you have a divorce judgment in California, and then move to Indiana, Indiana should honor whatever orders, whether about the divorce itself or issues subsequent to divorce, you obtained in California.

Personal Jurisdiction

Personal Jurisdiction refers to the court having any power over the person about which it is making orders. A court gains personal jurisdiction over someone by that person being in the state when he/she/they is served with court papers, or if that person appears at a court hearing, signs off on having received court papers, or abides by the court’s orders. A lack of personal jurisdiction means that although the divorce decree is valid, other related decisions, such as child custody, support, and property division, may be invalid. A divorce court cannot make orders about a person it does not have personal jurisdiction over.

Consulting a divorce attorney about these matters, or if you are served with divorce papers is always best, especially if you receive them from a foreign state. A divorce lawyer will be best suited to explain to you any jurisdictional issues that are relevant to your divorce, such as where the parties lived, where the children live, and what country or state is involved in your divorce.

To set up a free consultation with the author, visit https://calendly.com/legallyoverton/20min

Or email us at legallyoverton@gmail.com

Child Custody and Visitation in California

By Allysyn Overton, Esq.

Understanding these different terms is important when navigating your court proceedings. Below are the definitions of each and how they are typically handled in court. There are two types of custody, which are different than visitation. People often misunderstand child custody and visitaiton. They may say “custody” when they really mean “visitation.” So, it is important to understand the legal terms of child custody and visitation before you start a child custody and visitaiton court case, so that you are asking for the correct child custody and visitaiton orders in your court documents and at your child custody court hearing.

Legal Custody

Legal custody refers to who has the decision-making power over the child(ren). What school is chosen, what pediatrician, glasses or contacts, etc. The parents can have joint legal child custody, or the court can award one parent sole legal child custody. Typically, courts want to see both parents involved in the decision-making for children, but exceptions, so will issue joint legal child custody orders. However, courts will consider multiple factors in deciding child custody, like a history of domestic violence, substance abuse, or other behaviors that render one of the parents incapable of engaging in joint legal child custody are common.

Physical Custody

Physical Custody refers to with whom the child resides. Like legal custody, parents can share joint physical custody, or the court can order that only one parent maintains sole physical custody. Typically, parties who share an even or close-to-even timeshare of the child(ren) will share in joint physical custody. When one parent has the majority of the timeshare, courts typically grant that parent sole physical custody. Physical custody does not have a whole lot of power like legal custody does, but can be useful in choosing a school, as the child’s residence will determine what school district is applicable. Physical custody also is important if one parent wants to move further away from the other. If the parent with sole physical custody wants to move, the court will usually side more with a parent who has sole physical custody when deciding whether the move-away is appropriate or not.

Visitation

Visitation refers to the timeshare of the child(ren) and parents, or how often the child will visit each parent and when. There are a number of common visitation scenarios:

2-2-3 visitation: The child visits parent 1 for two days, then switches to visit parent 2 for 2 days, then goes back to visit parent 1 for 3 days. This ends up creating an alternating weekend scenario. This visitation schedule is best for children under ten, as children of that age should not go too long without visiting the other parent. This visitation schedule looks like this:

2-2-3 visitation schedule

Monday Tuesday Wednesday Thusday Friday Saturday Sunday

Parent 1 Parent 1 Parent 2 Parent 2 Parent 1 Parent 1 Parent 1

Parent 2 Parent 2 Parent 1 Parent 1 Parent 2 Parent 2 Parent 2

Parent 1 Parent 1 Parent 2 Parent 2 Parent 1 Parent 1 Parent 1

Parent 2 Parent 2 Parent 1 Parent 1 Parent 2 Parent 2 Parent 2

2-2-5 visitation: with a 2-2-5 visitation schedule, the child visits with parent 1 for 2 days, parent 2 for 2 days, then parent 1 for 5 days. This visitation schedule is best for children over ten, as they do okay not having visitation with the other parent for several days at a time. This visitation schedule allows each parent to have full weekends, but also sometimes split their weekends with the other parent. This visitation schedule can sometimes make planning ahead hard, as the parents have to sit down with a calendar and mark out their visitation timeshare. It looks like this:

2-2-5 Visitation Schedule

Monday Tuesday Wednesday Thursday Friday Saturday Sunday

Parent 1 Parent 1 Parent 2 Parent 2 Parent 1 Parent 1 Parent 1

Parent 1 Parent 1 Parent 2 Parent 2 Parent 1 Parent 1 Parent 2

Parent 2 Parent 2 Parent 2 Parent 2 Parent 1 Parent 1 Parent 2

Parent 2 Parent 1 Parent 1 Parent 1 Parent 1 Parent 1 Parent 2

Week on/Week off visitation: A week on/week off visitation schedule is great for teenagers, as teens tend to do just fine going a full week without seeing the other parent, and do better with fewer transitions. With all of the activities keeping teens busy these days, many parents of teens, like this visitation schedule. Week on/week off visitation looks like this:

Week on/Week off Visitation Schedule

Monday Tuesday Wednesday Thursday Friday Saturday Sunday

Parent 1 Parent 1 Parent 1n Parent 1 Parent 1 Parent 1 Parent 1

Parent 2 Parent 2 Parent 2 Parent 2 Parent 2 Parent 2 Parent 2

Parent 1 Parent 1 Parent 1 Parent 1 Parent 1 Parent 1 Parent 1

Parent 2 Parent 2 Parent 2 Parent 2 Parent 2 Parent 2 Parent 2

The 2-2-3, 2-2-5, and week on/week off visitation schedules are all used when the parties are ordered to have even timeshares. Absent a finding of domestic violence, substance abuse, or abandonment by one of the parties, courts will be inclined to order even visitation timeshare schedules. But what about situations where uneven visitation timeshare is appropriate? Just like with even visitation, there are a number of uneven visitation schedules courts can order.

Supervised Visitation

When a finding of any concerns about one of the parent’s parenting abilities, such as in cases of domestic violence, substance abuse, or not being in the child’s life much, the court may want to see that parent have a few supervised visitation sessions first. This ensures there is a responsible adult present for the visitation just in case the parent becomes inappropriate or abusive with the child(ren), the parent appears to be under the influence of substances, or the child experiences anything untoward during the visitation. That other adult can intervene if necessary and terminate the visitation whilst ensuring child safety. Then, that adult can report back to the court about how the visitations went. From there, the court can make further visitation orders. If the visitation supervisor reports back that the visitations all went well, the court will be inclined to order unsupervised visitation for that parent. However, if the visitation supervisor reports any concerns to the court, the court can terminate the visitation, order visitation or reunification therapy for the parent and child, or that the parent’s visitation maintain being supervised. Typically, the schedule of supervised visits is limited to the availability of the supervisor. Sometimes supervised visitation is ordered to be done by a professional visitation supervisor, and other times, the parties agree on a friend or family member to supervise the visitation. Supervised visitation rarely includes overnights, unless the overnights can take place at the visitation supervisor’s residence.

Every Weekend Visitation

This type of visitation is common as a next step after a parent has graduated from supervised visitation, or in cases where one parent cannot for whatever reason, have visitation during the week—perhaps their rigorous work schedule doesn’t allow it, or perhaps, the parties live too far apart for the child to make it to school in the morning. This visitation is usually not for a very extended period of time, as the other parent is not getting any weekend time at all.

Alternating Weekend Visitation

This type of visitation is also common as a step up from supervised visitation, or is ordered when one parent cannot have visitation during the week. This visitation ensures that both parents get some weekend visitation timeshare with the child(ren).

Visitation Exchanges

Visitation Exchanges is an important concept in any custody/visitation matter. Visitation exchanges refers to how the child(ren) is/are exchanges between the parents. In supervised settings, the exchanges takes place at the supervision center. If the visitation is being supervised privately, the exchange may take place at the supervised parent’s home. If the parties’ relationship is still relatively contentious, it might be best to have visitation exchanges take place in a public place. I worked on one case where the father was always twenty, even thirty minutes late to the visitation exchanges, but denied being late to the court. As a way to track whether he was on-time or late, the court ordered the visitation exchanges to take place at a starbucks between the homes, and each party had to buy something from inside and get a receipt. Then, the court reviewed all the receipts and noted that the father indeed had been very late to most of the visitation exchanges. Thus, the court ordered that if he was more than fifteen minutes late, he forfeited his visit.

School visitation exchanges is also a great and easy way for the children to travel back and forth. School exchanges have parent 1 drop off the child(ren) at school, and the parent 2 picks up that day from school. Keep in mind that this forces everyone to consider what the child(ren) should pack before school on visitation exchange days, as whatever the child(ren) need(s) for the other parent’s home will need to travel with him/her/them on exchange days. Parents often enjoy school visitation exchanges as they are a bit easier to fit into work schedules, and they mean not having to interact with the other parent as much, which is very helpful in contentious cases.

Holiday Visitation Schedule

Planning out a holiday visitation schedule is very important. Without one, you are stuck with whatever days fall on your regularly schedule visitation, no matter what holiday it happens to be. Common

holidays to consider are any days your child(ren) has off from school, important religious holidays, mother’s day, father’s day, and birthdays. California has a great court form that makes it easy for you to plan out a holiday schedule and request it from the court. This is form FL-341(c), and can be found here: https://www.courts.ca.gov/documents/fl341c.pdf

Visitation Mediation

In California, parties are required to attend mediation with the court’s own mediators to see if they can reach an agreement about visitation. The court will usually (absent any emergencies) not make any visitation orders until this is done. Remember, that you and the other parent know your lives and children better than a stranger in a black robe. In my experience, parties that reach visitation agreements end up having healthier and happier coparenting arrangements with the other, and tend to have an easier time in court. Of course, this is not always possible or even appropriate. For example, in situations of domestic violence. However, even then, the court will order you to attend mediation. In domestic violence cases, the mediator will meet with the parties separately. You should be willing to settle, but do not have to settle just for the sake of settling. The visitation terms should be something you can live with. They might not be exactly what you want, but a little compromise can go a long way. Settling also means less time in court and often fewer attorney’s fees.

To set up a free consultation with the author, visit https://calendly.com/legallyoverton/20min

Or email us at legallyoverton@gmail.com