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Uncontested Divorce


Introduction of uncontested divorce

While no divorce is truly "uncontested" in the sense that there are no disagreements, these disagreements do not always have to be resolved in court. That's what we mean by an uncontested divorce ?a one where the spouses can reach a decision as to the terms of the divorce without going to trial.

Uncontested divorce must accord to three preconditions:

(a) You and your spouse must agree to divorce;
(b) You and your spouse must use all means possible to work out mutual terms (such as: community property and debts, child custody and visitation, child support, spousal support, and so on.) for the separation on your own, without going to court;
(c) If you and your spouse cannot work things out on your own, you must reach an agreement of all terms about your divorce by arbitration and mediation, with or without attorney representation.

Property & Debts

California is a "community property"state. Any jointly-held property is presumed to be "community" property, unless it is clearly stated in a deed or written agreement that the property is"separate"property. Unless you and your spouse agree otherwise, all community and quasi-community property is divided equally between the spouses. If economic circumstances warrant, however, the court may award any asset to you or your spouse on such conditions as it feels proper to provide for a substantially equal distribution of property. In addition, if you or your spouse has deliberately misappropriated community property, the court may make an unequal division of your community property. Marital contributions to the education and training of the other spouse that substantially increases or enhances the other spouse? earning capacity are reimbursable to the community property.
Each of you shall be responsible for the following debts:
(a) those incurred prior to marriage;
(b) any separate debts during the marriage that were not incurred to benefit the community or marriage;
(c) their equitable share of any community debts made during the marriage;
(d) any debts incurred after separation and before dissolution of marriage if the debts were for non-necessities and an equitable share of debts incurred during this period if the debts were for necessities.

Child Custody & Visitation

There is probably nothing as emotionally charged, or where parents become as emotionally invested, than the issue of child custody and visitation. This is a very tough time for parents, because each parent is trying to fight for their rights when it comes to the custody and/or visitation of their children.
Joint or sole custody may be awarded based on the best interests of the child and the following factors:
(a) the preference of the child, if the child is of sufficient age and capacity;
(b) the desire and ability of each parent to allow an open and loving frequent relationship between the child and the other parent;
(c) the child's health, safety, and welfare;
(d) any history of child or spouse abuse by anyone seeking custody or who has had any caretaking relationship with the child, including anyone dating the parent;
(e) the nature and amount of contact with both parents;
(f) any habitual and continued use of alcohol or illegal controlled substances; and
(g) marital misconduct may also be considered.
Custody is awarded in the following order of preference:
(a) to both parents jointly;
(b) to either parent;
(c) to the person in whose home the child has been living; or
(d) to any other person deemed by the court suitable to provide adequate and proper care and guidance for the child.

When one parent is awarded sole or primary custody of the child, the other parent is granted the right of visitation. Visitation plays a role in almost all custody arrangements unless deemed not in a child's best interest.The guidelines for visitation should be agreed upon promptly to prevent any future misunderstandings. It is the responsibility of the parents to arrange for a reasonable schedule of visitation.

Child Support

Both the custodial and non-custodial parent have a legal responsibility to financially support your children. Child support payments may be awarded on a temporary basis during custody or child support proceedings. There is a mandatory minimum amount or child support which is outlined in the state guidelines, and this amount will be apply unless there is a reasonable agreement between the parents providing otherwise that states that:
(a) the parents state that they are fully informed of their rights regarding child support under California law;
(b) that the child support amount is being agreed to without coercion or duress;
(c) that both parents declare that their children's needs will be adequately met; and
(d) that the right to child support has not been assigned to the county and that no public assistance is pending.

California's state child support guidelines consider such things as the current income of both parents and the amount of time the children spend with each parent.

Spousal Support

It is important to know that either spouse may be entitled to spousal support under the California Family Law. The amount and period of support is determined by several factors:
(a) whether the spouse seeking support is the custodian of a child whose circumstances make it appropriate for that spouse not to seek outside employment;
(b) the time necessary to acquire sufficient education and training to enable the spouse to find appropriate employment and that spouse's future earning capacity;
(c) the standard of living established during the marriage;
(d) the duration of the marriage;
(e) the comparative financial resources of the spouses, including your comparative earning abilities in the labor market;
(f) the needs and obligations of each spouse;
(g) the contribution of each spouse to the marriage, including services rendered in homemaking, childcare, education, and career-building of the other spouse;
(h) the age and health of the spouses;
(i) the physical and emotional conditions of the other spouse;
(j) the tax consequences to each spouse;
(k) the ability of the supporting spouse to pay, taking into account that spouse's earning capacity, earned and unearned income, assets and standard of living;
(l) the balance of hardships to each party;
(m) any other factor the court deems just and equitable.

Marital misconduct is not a factor to be considered in determining the amount of support, except for a criminal conviction of an abusive spouse.

 
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