Identify where you want to live. You might want to stay in your house because you have a job nearby or for another reason. If you want to move, figure out where. Come up with a budget. As best as you can, you should estimate your expenses and compare the amount to your expected income.
Separate property is not community property. It can include anything you acquired before the marriage. Gifts or inheritances are separate property as well. Anything you acquire after separation is also separate property. For example, the money you earn after you separate from your spouse is your separate property. If you aren’t sure what is community or separate property, you can ask an attorney.
You can get a referral to a divorce attorney by finding a certified referral service. Call toll free 866-442-2529. If you are outside the state, call 415-538-2250. [2] X Research source Also ask any divorced acquaintances if they would recommend their divorce lawyer.
Approach your spouse and say, “We really need to talk about where the children will live and child support. When are you available?” If possible, meet in person and not over the phone.
Child custody. There are two kinds of custody: legal and physical. With legal custody, you get to make decisions for the child, such as where they go to school, what medical treatment they get, etc. Physical custody means the child spends time with you. [3] X Research source One parent can have primary physical custody and the other can have visitation. Be as detailed as possible about your parenting plan. Child support. You can agree to a child support amount, but realize that the judge must approve the amount. A judge always decides what is in the best interests of the child, and you’ll need to research California’s guidelines on child support. Division of property. Sit down and come up with a list of everything you own. Each person should fill out a Schedule of Assets and Debts, which you’ll have to file with your divorce petition. [4] X Research source You can get the form from your court clerk or download it from online. Division of debt. Decide who will handle the debt and whether you will transfer it into one person’s name. For example, a joint credit card debt could be transferred to a credit card in the name of only one person. Spousal support. You might want to seek alimony, called spousal support. In California, you probably won’t get support for more than half of the years you were married if married for less than ten. However, if you were married for more than 10, then the court won’t set a definite termination date. [5] X Research source
Sit with an open body style. Don’t cross your arms and legs or angle your body away from your spouse. [6] X Research source Face him or her and sit naturally. Make eye contact. You want to show your spouse that you are listening and take what they say seriously. Avoid talking over each other. Mirror what your spouse is saying. If your spouse says she needs full-time custody, say, “I definitely hear you want John and Mary to live with you. But since I’m not moving far away, I think we should consider splitting physical custody. ”
Assign one person to draft the divorce settlement agreement based on the notes. Don’t take too long drafting an agreement. The longer you wait, the more of a chance your spouse has to change their mind.
Find mediators in your phone book or on the Internet. Alternately, you could contact your local bar association or stop into court and ask if they have a roster of mediators. [8] X Research source
The California Courts has a model marital settlement agreement you can use. You can download the document here: http://www. courts. ca. gov/partners/documents/marital_settlement_agreement. pdf. Use this as a model for your own agreement.
Names of the spouses. You can write, “I, Allan Jones, Husband, and I, Rachel Jones, Wife, agree as follows…. ” Dates of marriage and separation. Write something like, “We were married on the 3rd day of May, 2001, and separated on the 15th day of January, 2016. ” Why you are divorcing. Include a line or two about why the marriage is ending. Generally, most people divorce for “irreconcilable differences,” which is a catch-all. Also mention the marriage has “irretrievably broken down. ”[9] X Research source
For example, you could write: “Allan and Rachel shall jointly share physical and legal custody of the minor children. Our relationship will be guided by the following terms and conditions…. ” Then insert the information from your parenting plan. [11] X Research source If you drafted a visitation schedule, then you can attach it to your settlement agreement. Direct the reader to the attachment. For example, you could write, “Allan Jones shall have visitation with the minor children as follows: See Attachment ‘A,’ consisting of 10 pages, incorporated herein by reference. ” This is probably the easiest and cleanest way to refer to the visitation schedule.
Sample language could read, “A child support order was filed on January 22, 2016 in the parties’ dissolution case. This child support, in its entirety, shall remain in effect and is hereby incorporated by reference into this agreement. ”[12] X Research source
If a child support hearing hasn’t even been scheduled, then you can reserve the issue of child support. The California marital settlement agreement has sample language you can use.
For example, you could write, “Allan agrees to pay Rachel a total of $2,300 per month, payable on the 15th of each month. Child support payments will continue until each child marries, dies, becomes self-supporting, reaches age 19, or reaches 18 and is not a full-time high school student, whichever comes first. ”[13] X Research source
Include a provision that the parent who incurs health care expenses will provide the parent who pays it with an itemized bill. Also provide a deadline for paying the health care bill. For example, you might state that it should be paid within 30 days.
Explain the amount. If one spouse is paying support, then explain how much will be paid and for how long. You could write, “Allan Jones shall pay to Rachel Jones for spousal support the amount of $2,000 per month, payable on the 15th of each month, commencing on June 1, 2016, until either party’s death, Wife’s remarriage, or modification by further court order. ”[15] X Research source State no support will be paid. It’s better to explicitly state no alimony is paid than to leave the issue out of your divorce settlement agreement altogether. Write something like, “Husband and Wife hereby waive and release all rights and claims to receive support from the other party. No court shall have jurisdiction to order spousal support payable from either spouse to the other at any time, regardless of circumstances. ”
Write something like, “The following property is the Husband’s separate property, and Wife confirms it, waiving any claim or interest in it. ” Then list the property. [16] X Research source Include the same provision for the other spouse, listing their property. Get legal counsel when you’re drafting a separation agreement to make sure it’s accurate.
Also describe any payment to balance the division. For example, some assets (like houses) can’t be divided easily. In that case, one spouse can write a check to the other so that they end up with equal amounts of community property. Sample language could read, “to achieve an equal division of community property, Allan Jones shall pay Rachel Jones $50,000 on June 15, 2016. If Allan Jones does not pay this sum in full, then interest of 10% will accrue annually from the due date. ”[18] X Research source
Whether you are transferring the house from joint tenants to tenants in common. Who will live in the house, if anyone, and for how long they can live there. For example, you might agree that one parent will live in the house until the last child graduates high school and moves out. Who will pay for maintenance and repairs. Who will pay for taxes and insurance.
A sample provision could read, “When due, Allan Jones will pay the following debts promptly and indemnify and hold Rachel Jones harmless therefrom. ” Then list the debts. [20] X Research source
You warrant that you have fully disclosed your assets: “Each party warrants that he or she has fully disclosed all community assets and does not have any knowledge of any community assets apart from those listed in this agreement. ” You warrant that you have disclosed all liabilities: “Each party warrants that he or she has not incurred and will not incur any liability not disclosed in this agreement. ”
For example, you could write, “This agreement contains the entire agreement of the parties on these matters and supersedes all previous agreements. This agreement may be modified by a subsequent agreement in writing signed by both or by an oral agreement made into an order by a court. ”[23] X Research source
A sample mediation clause might read: “We agree to make a good faith effort to resolve any dispute in mediation. Either party may request mediation. Within thirty days of receiving a written request, we will submit our dispute to mediation with a mediator agreed to by both of us. We will divide the cost of mediation in half. ”[24] X Research source
Ask the lawyer if anything should be added, removed, or revised. [25] X Research source You should meet with your own lawyer, who can protect your rights. Don’t meet as a couple with the same attorney.
Remember to submit the agreement to the judge. Your agreement doesn’t become valid until a judge signs off on it. [27] X Research source You should have your lawyer submit the agreement to the court with the appropriate divorce forms.
