Divorce: A California State of Mind

Divorce. It’s an ugly word for a difficult, emotion-laden process. It also describes what is, for many, their only contact with the judicial system.

Resources are available to help guide people through the process, however, and there are some basics that can be described here.

California has a “no-fault” system of divorce. Traditionally, in most states, one spouse had to prove that the other spouse was at “fault” to obtain a judicial divorce decree. That meant proving that your spouse was guilty of such unpleasant things as adultery, bigamy, cruelty, desertion, drunkenness, drug addiction, impotence, communicable venereal disease, willful neglect or insanity.

Of these, only incurable insanity remains as a ground for divorce in California, and it is rarely used. Instead, the husband and wife need only show that there are “irreconcilable differences” as the basis for the “dissolution” of the marriage.

In a dissolution in California, community property--all the property acquired during marriage as a result of your labor or skills--is divided equally. Separate property, that which you owned prior to the marriage, and gifts and inheritances you received either before or during the marriage, generally remains yours alone.

Spousal support, what was once called alimony, may be awarded depending upon the standard of living to which you are accustomed and the earnings potential of the spouse seeking the support, among other things. The court will also determine who gets custody of your children, and the amount of child support.

Of course, you and your spouse, with your respective lawyers--if you have them--can agree upon these issues and not fight it out in court. Another option is to use a mediator, who will help the two of you reach an agreement. You can do this whether or not you are each represented by counsel. The agreement you’ve reached must be approved by the court.

The State Bar of California publishes two pamphlets about divorce and child custody: “What should I Know About Divorce?” and “Who Will Get Custody of Our Children?” Both are free. Send a stamped, self-addressed business envelope to State Bar Pamphlets, 555 Franklin St., San Francisco, Calif. 94102.

One of the most challenging tasks is finding the right lawyer to represent you. Try to find someone who specializes in and is experienced at handling family law matters. The State Bar does certify specialists in this area. Use a referral service certified by the State Bar. Ask divorced friends whether they were satisfied with the legal services they received. Counselors, mediators and clergy may also be able to offer references.

Then again, there are those who urge lawyers be kept out of family squabbles. The lawyers at Nolo Press, for instance, write in one of their books on child custody that: “Lawyers are trained to do legal battle, to be hard-nosed and crafty adversaries. While these characteristics may be quite valuable in certain kinds of legal disputes, we believe they are often better avoided in family matters.”

Then, again, that may be exactly what you need.

For the record: There was an error in last week’s column. Gifts in excess of $10,000 in one year are generally taxable, but the tax liability is on the giver of the gift, not the recipient.