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Common Questions About Divorce
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Common Questions About Divorce In San Bernardino

  1. My spouse cheated on me.  Can I get a divorce?
  2. Will I get more in the divorce settlement because my spouse cheated on me?
  3. How long does it take before the Dissolution of Marriage to be granted?
  4. How long do I have to live in California before I can file for a divorce?   
  5. What is Collaborative Law?  
  6. How can I protect certain assets (family heirlooms, personal items, etc.) from being taken by my spouse in a divorce proceeding?
  7. What is the 10-year Rule?
  8. How is child custody and visitation determined?
  9. Who gets to claim the children as dependents on their tax returns?

1.  My spouse cheated on me.  Can I get a divorce?
Yes, but note that California utilizes what is referred to as the “no-fault divorce” concept.  This means that under California law you do not need to have “grounds” for a divorce and the act of adultery simply does not factor in when it comes to ending a marriage in California.  One can simply state irreconcilable differences in order to be granted a divorce in the state of California.

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2.  Will I get more in the divorce settlement because my spouse cheated on me?
As stated above, adultery is more of a moot issue when it comes to divorce.  Only in very narrow circumstances will the fact that your spouse cheated have an impact on your divorce proceeding. For instance, if you have a prenuptial agreement that specifies that if either of you cheats, then the “cheater” will relinquish his or her interest in certain assets or have to pay the other a certain sum (commonly referred to as the “bad-boy/bad-girl” clause), then you might be able to “get more” in the divorce settlement, especially if you have valid proof of the affair.  

Furthermore, if your spouse cheated on you openly in front of your minor children, then you may be in a better position when it comes to being awarded child custody.  Additionally, if your spouse used any community-property funds during the affair, then you may be able to claim a breach of fiduciary duty and the court may award you more in light of this.  For instance, if your spouse took money from a joint checking account to buy his or her lover jewelry or pay for a hotel, apartment or condo for the lover, then you would be able to claim the breach and be entitled to reimbursement.  There are very specific laws that address the issue of one’s fiduciary duty and any breach therein.  These laws are somewhat complex, and it is wise to consult with a skilled San Bernardino divorce attorney if you face such an issue.  

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3.  How long does it take before the Dissolution of Marriage to be granted? In California, there is mandatory six-month waiting period from the time the respondent party is served with the Summons and Petition.  Thus, a judgment dissolving the marriage cannot be granted before that time period ends.

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4.  How long do I have to live in California before I can file for a divorce?          
In order to file for a Dissolution of Marriage in California, you must have resided in the state for at least six months. In addition, you must have resided at least three months in the county where the petition is to be filed. If there are children of the marriage, then the divorce petition must be filed in the county where the children have resided for the previous three months.

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5. What is Collaborative Law?  
Collaborative Law is a fairly new method of settling family law disputes in many jurisdictions.  It is a preferred method in terms of settling matters and tends to be much more humane.  Collaborative law methods typically provide win-win solutions for both parties.  In a collaborative-law divorce, both parties, along with their San Bernardino divorce lawyers, agree to make complete voluntary disclosure of all assets and to negotiate in good faith.  Through a series of meetings, both parties and their divorce lawyers work together to achieve the best possible settlement.  Child support and spousal support issues, along with division of property agreements, are all resolved during these meetings.  In a collaborative-law divorce, both parties avoid lengthy and expensive discovery proceedings and are able to move on with their lives amicably. 

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6.  How can I protect certain assets (family heirlooms, personal items, etc.) from being taken by my spouse in a divorce proceeding?
Unless the family heirlooms were given to both you and your spouse, they generally will not be considered as marital property and you will be allowed to keep them.  In as much as you would like to protect personal items from being removed from the marital home prior to the finalization of the divorce, you should begin by making a list of such items and taking pictures of them or making a videotape of them in your home.  Next, you should remove the items from your home and put them in a secure place.  If there is a dispute between you and your spouse over who owns the items, then you should have an experienced San Bernardino divorce lawyer file for an immediate asset protection order which would allow you to remove the items and store them in a safe place until the matter can be settled. 

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7.  What is the 10-year Rule?
California has what is known as the “ten-year rule” in regards to marriages that have lasted ten years or more.  Such a marriage is considered a “lengthy” marriage.  In such a marriage, the court may order that alimony be paid to the lesser-earning spouse for as long as he or she needs it and so long as the other spouse has an ability to pay.  California statutes state that in marriages that are not deemed to be lengthy, alimony should be paid for only one half of the time that the marriage lasted.  Note too that the Social Security Administration also considers a marriage that lasted ten years or more as a lengthy marriage.  In such cases, parties may be eligible to collect derivative Social Security benefits even after the finalization of the Dissolution of Marriage when they reach retirement age and so long as the recipient party is not remarried to someone else.   Derivative benefits are equal to one-half of the amount that the former spouse is eligible to receive.  If you are considering divorce and you are close to the ten-year mark, you may want to consider sticking it out in order to delay the finalization of the proceeding until after the ten-year mark just for this reason alone. 

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8.  How is child custody and visitation determined?
In California, the courts strive to provide joint custody to both parents. Parents are encouraged to share the responsibilities of child rearing. California law provides that judges award primary custody and visitation according to the “best interests of the children” and their health, safety, and welfare.

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9.  Who gets to claim the children as dependents on their tax returns?
There are several tests that a parent must meet that are outlined by the IRS that allow one to claim a child as a dependent on his or her tax return.  Generally, the parent who provides more than one-half the child’s support qualifies as “head of household” for income tax purposes and is allowed to claim the child as a dependent on his or her return.  The primary custodial parent typically is considered to be the one who provided most of the support.  If the divorce decree or custody agreement does not clearly establish which parent has primary custody, then the parent who exercised physical residential custody of the child for the greater part of the year is the appropriate parent to claim the exemption.  Note that if the custodial parent chooses, he or she can release his or her exemption to the non-custodial parent by making a written declaration (IRS Form 8322).  

Furthermore, it should be noted that child support payments are not deductible for the payor spouse or taxable to the recipient spouse.  However, maintenance payments made to the spouse pursuant to a marital settlement agreement are tax deductible by the payor spouse and taxable to the recipient spouse.  In addition, unallocated maintenance awards that are commingled with maintenance and child support as one monthly figure are also deductible. 

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