With over 50 years of combined Family Law and Estate Planning experience, the attorneys at Candelaria PC compiled this list of questions frequently asked by our clients seeking legal advice.
Do you have to be separated to get a divorce?
You can file for a divorce the day you determine the marriage is over, even if you are still living with your spouse. However, you must have a date of separation to obtain a divorce, which could be the date you file for a divorce or a date before then. Your “date of separation” is the date that a complete and final break in your marriage occurred. This is shown by both (1) expressing your intent to end the marriage to your spouse, and (2) you take some action that is consistent with ending the marriage. (Family Code §70). Some examples of actions taken that are consistent with ending the marriage include moving out of the family home, telling family and friends about the separation, or ending intimate relations.
What is a no-fault divorce?
In California, all divorces are “no fault.” This means that irreconcilable differences have led to an irremediable breakdown in your marriage. The court will not entertain the reason you are getting a divorce or place blame on one spouse or the other.
What is an uncontested divorce?
An uncontested divorce occurs when you and your spouse are able to reach a full agreement, resolving all issues in your divorce, such as custody and visitation, child support, spousal support, and division of assets and debts. If your entire divorce action is uncontested, you will not need to appear in court. In some cases, parties will start their divorce action contested on certain issues, for example, custody and visitation and child support. However, the parties will work together to reach a final agreement called a Marital Settlement Agreement to resolve the remaining issues in their case.
How long does it take to get a divorce in California?
Getting a divorce takes at least 6 months. It depends on a number of factors, such as the complexity of your matter. At minimum, California’s mandatory “cooling off” period requires that a status termination cannot occur until six months after the date the summons and petition are served. A status termination restores each person back to the status of single person.However, if the parties can reach a full agreement on all matters before the cooling off period ends, then a Judgment of Dissolution can be submitted to the court for approval, with a status termination date after the six-month period expires.
Will I have to go to court?
It is possible to get divorced or legally separated without going to court. A divorce or legal separation can be granted by declaration if an agreement on all issues can be reached. Then, a written agreement can be drafted, signed by both parties, and submitted to the court for approval. Unfortunately, court may be unavoidable if interim agreements regarding custody, visitation, property, and other pressing issues cannot be reached.
What do I do about custody, visitation, property, and other issues while the divorce is proceeding?
Whenever it is reasonable or possible, it is usually beneficial if the parties can reach a fair interim agreement on the issues of custody, visitation, support, and property. If an agreement cannot be reached on one or all of the issues, then either party has the option of filing a Request for Order with the court. The Request for Order should specify the orders that the requester wants the court to make (for example, to award child support or to set a parenting schedule). The Request for Order will set a court date. If the request is related to custody or visitation, the parties will need to attend mediation before the hearing. Also, the parties may still be able to reach an agreement prior to the court date.
How will our property/assets be divided?
In a divorce or legal separation case, both parties are required to complete financial disclosures to inform their spouse about their community and separate property. California is a community property state, so typically, community assets and debts will be divided equally. Exceptions may apply, especially if either party has signed any pre-marital or post-marital agreements. It is important for anyone in a divorce or legal separation to seek legal advice on this very important topic.
Who will have to pay off our debts?
Any debt, such as credit card debt or a mortgage, that is incurred during your marriage is treated as community property. Even if the debt is in your spouse’s name, that is still considered joint debt. Unless there is an agreement to divide the debts in a particular way, the courts will typically make both parties responsible for one-half of the debt. Sometimes the debt can be offset against an asset. For example, if you take the vehicle that has a certain value, you and your spouse may agree that your spouse take on less debt, whatever that may be.
How is alimony (spousal support) determined?
Spousal support is commonly referred to as ‘alimony.’ There are two types of spousal support: temporary and permanent (also known as post-judgment spousal support). The purpose of temporary spousal support is to assist spouses during the divorce proceeding as they transition to separate households. Temporary spousal support is discretionary. In calculating temporary spousal support, a court may use a computer program, such as Dissomaster or XSpouse. Permanent spousal support is calculated by considering the 14 factors set forth in Family Code Section 4320 listed below:
(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.
The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
(b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.
(c) The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.
(d) The needs of each party based on the standard of living established during the marriage.
(e) The obligations and assets, including the separate property, of each party.
(f) The duration of the marriage.
(g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
(h) The age and health of the parties.
(i) All documented evidence of any history of domestic violence, as defined in Section 6211, between the parties or perpetrated by either party against either party’s child, including, but not limited to, consideration of:
A plea of nolo contendere.
Emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party.
Any history of violence against the supporting party by the supported party.
Issuance of a protective order after a hearing pursuant to Section 6340.
A finding by a court during the pendency of a divorce, separation, or child custody proceeding, or other proceeding under Division 10 (commencing with Section 6200), that the spouse has committed domestic violence.
(j) The immediate and specific tax consequences to each party.
(k) The balance of the hardships to each party.
(l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration, as described in Section 4336, a “reasonable period of time” for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.
(m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4324.5 or 4325.
(n) Any other factors the court determines are just and equitable.
How is child support determined?
In California, child support guidelines are based on each parent’s monthly income, deductions and the amount of time a parent cares for a child. The court will consider all sources of income regardless of whether the income is taxed or reported on taxes. You cannot waive child support, but if you reach an agreement, you can deviate from guideline child support as long as the child(ren) will be adequately financially provided for and the child is not receiving governmental assistance.
Do I need a divorce lawyer?
It depends on your situation. In less complicated divorces with no children and very few assets and debts, divorcing spouses may not need a divorce attorney. If you have children, property, a long-term marriage, reimbursement claims, a business, high net worth assets, or other complicated issues, you would probably benefit from having legal counsel. A divorce is one of the number one stressors in one’s life next to a spouse’s death. A lot of that stress comes from the unknown and not knowing what tomorrow looks like (i.e., how often will I care for my child, how much money will I have, what does my future look like?). Talk about your issues with a divorce attorney should alleviate some of your concerns or at least provide you with a better understanding of what your tomorrow looks like.