This article helps you understand:

  • How you can weather the financial storm of divorce.
  • What you are entitled to under California law, from the division of assets to child custody.
  • Whether you have to pay your attorney’s fees.

Is There Any Benefit To Being The Person Who Files For Divorce In California?

Legally, there is no difference whether you or your spouse files for divorce – or, who is the “petitioner” – in California. Being the petitioner does bring some procedural benefits that can sometimes impact a case, namely, establishing the court’s location. However, being the respondent, (the party who did not file the divorce), does not forfeit any legal benefit.

If I Leave My Spouse, Am I Allowed To Take My Children Under California Law?

California law does not allow for self-help, meaning you are forbidden by law from taking a child away from their other parents prior to filing for divorce.

The State of California prefers you to file either before or simultaneous to leaving. Immediately after that, request emergency custody orders for either primary physical custody, sole physical custody, or joint custody. This is so the court can best oversee the case, specifically concerning who will have custody of the children and assist in planning subsequent visitation.

Generally speaking, parties that leave their spouse and take the children are legally at a disadvantage when the other party files for divorce and emergency custody. This is because the parent that left and took the children did not follow the law and obtain an order for primary physical custody, depriving the other parent of custody and visitation of their children.

I Am A Non-Working Spouse Going Through A Divorce And My Spouse Wants A Divorce. My Working Spouse Controls All The Finances. How Do I Ensure I Will Be Able To Afford A Qualified Divorce Attorney?

To ensure you can get a qualified divorce attorney, you can apply to have your spouse pay for your attorney’s fees. Unfortunately, this is decided by a judge and not always upheld. Judges tend to consider each spouse’s income and ability to work when making this determination.

Once a divorce is initiated, the court may require you to obtain employment if you can otherwise work. Child care can also be arranged. Several conditions cause this to vary on a case-by-case basis.

Still, the courts generally recognize that when one spouse is the primary earner, and the other is primarily a stay-at-home parent, orders need to be made for the support of the stay-at-home parent, as well as payment for their legal fees throughout the entire process.

Is The Working Spouse Required To Pay The Attorney’s Fees For The Non-Working Parent In A Divorce? Does It Matter Who Initiated The Divorce?

Whether a working spouse is required to pay for the attorney’s fees for a non-working spouse is ultimately up to the judge.

However, courts generally recognize that when one spouse is the primary earner and the other is primarily a stay-at-home parent, orders need to be made for the support of the stay-at-home parent, as well as payment for their legal fees throughout the entire process.

As A Stay-At-Home Parent Who Is Now Facing A Divorce, Will I Receive A Fair Division Of Assets And Financial Support For Myself And My Children Even If I Didn’t Financially Contribute To Our Income?

Whether you receive a fair share of assets and financial support depends on several factors in California.

Under California Community Property Laws, all earned income and assets acquired during the marriage are generally considered community property. Therefore, when settling a divorce, earned income is split between spouses regardless of who worked for it. The only exception is income on property or businesses that were the sole possession or ownership of one of the parties prior to the marriage.

For example, if one of the parties owned something like a stock or an apartment building individually before the marriage, the income that that asset generated during the marriage might still be considered separate property. This, again, depends on numerous factors that may impact that general rule.

However, in a typical situation where one parent works and the other stays at home as a homemaker, the salary earned by the employed spouse is community property. Therefore, it belongs to both, even though one earned it. Thus, the court will consider the income earned by the working spouse as community property and split the assets for proceeds of that income equally.

Courts also generally order some spousal support depending upon the length of the marriage and the ability of the non-working spouse to obtain employment after the divorce.

Is A Stay-At-Home Parent Automatically Favored In Custody Arrangements In A Divorce? Is The Parent Who Works Outside Of The Home At A Disadvantage When It Comes To Custody Matters In A Divorce?

The State of California does not automatically favor stay-at-home parents in custody arrangements. Generally, joint custody and equal custody arrangements are favored.

There may be some advantages to the stay-at-home parent for a short period to promote stability for young children. If the children are accustomed to being with one parent during the day while the other parent works, the court may order that the custody arrangement continue to reflect that arrangement.

Over time, the court will typically move to a fifty-fifty physical custody arrangement where children spend half the time with one parent and half the time with the other, factoring in issues relating to school and what is in the best interest of the child.

How’s The Value Of What The Caretaker Spouse Provides The Family Determined In A Divorce When It Comes To Division Of Assets And Support Matters?

Since the income generated by an employed spouse is joint community income, and each of the parties has an equal share of it, California courts do not determine a valuation of caretaking services provided by a stay-at-home spouse.

Typically there is no determination of the value of caretaking services by a stay-at-home parent that is not typically a factor that the court monetizes or considers when determining the division of assets or subsequent support.

With the guidance of a skilled attorney for Family Law Cases, you can have the peace of mind that comes with knowing that we’ll make it look easy.

For more information on Family Law Cases in California, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (661) 270-7858 today.

Lustgarten Law

Call Us To Schedule A Consultation
(661) 270-7858

Accessibility Close Menu
× Accessibility Menu CTRL+U