Frequently Asked Questions
The following Frequently Asked Questions and corresponding answers address common aspects of family law in California. The answers provided below are for general information purposes only. Please consult an attorney regarding how the law applies to your particular situation and circumstance.
What is a Prenuptial or Premarital Agreement? Do I Need One?
A prenuptial agreement, also known as a premarital agreement, is discussed and prepared by and among future spouses before getting married. By preparing and signing a premarital agreement, spouses decide various issues in advance of marriage, which are predominantly financial. For instance, many typical premarital agreements identify, establish, and designate separate property of spouses, limit potential spousal support orders, and otherwise make the separation of property and other financial considerations simpler in the event of divorce. Although no one hopes their marriage ends in divorce, divorces are common enough that many couples enter into a premarital agreement, so that, if they unfortunately end up divorcing, the process is simplified with fewer contested issues which were resolved before the marriage by their premarital agreement.
Does California Recognize “Common Law” Marriage?
No, California does not recognize “common law” marriage. A “common law” marriage is where a couple, who intend to get married but do not follow the legal requirements for a marriage, are still considered to be married. Many states recognize common law marriages, but California does not.
Can I Obtain a Divorce Without a Lawyer?
Yes, you can obtain a dissolution of your marriage (divorce) without an attorney. This is known as filing in pro per, that is, representing yourself without the representation of an attorney. There are family court advisors at the courthouse who may be able to assist you in this process, especially if your divorce is relatively uncomplicated and amicable.
However, divorce often involves complicated issues of child custody, spousal support, asset separation and property division, and other financial matters. These issues require technical and thorough knowledge of family law to properly protect your interests.
In addition to the complexity of the legal aspects of divorce, most people are also dealing with the emotional and psychological challenges that divorce involves. That is why it is advisable to be represented by an experienced family law attorney who will help you professionally navigate all the difficulties that arise during a divorce.
If My Spouse Will Not Agree to a Divorce, What Are My Options?
California is a no fault state, which means that a divorce may proceed with or without the consent of the other spouse. While a disagreeable spouse can make the process difficult or lengthy, eventually the court will intervene and enter judgment for dissolution of the marriage. If the responding spouse does not answer the Petition for Dissolution, as your attorney, we can move for a default judgment, and you will be divorced in as few as six months.
If I Was Not Married in California, Can I Still Obtain a Divorce Here?
Yes, you can. No matter where the marriage ceremony took place, you can file for a divorce in California as long as you have been a resident of this State for at least six months and a resident of the County of filing for at least three months before you file your divorce petition.
How Long Does a Divorce Take?
In California, there is a 6-month waiting period before a divorce may be finalized. The 6-month period starts from the date the dissolution petition is served on the spouse. This 6-month timeframe is intended to be a “cooling off” period so that couples do not rush to divorce. Accordingly, even if both parties reach an agreement and all formalities are completed soon after the divorce petition is filed and served, the dissolution will not be entered and become final for at least 6 months out.
However, if a divorce is contested or disputed, meaning that the spouses fight over finances and assets, issues of child support, child custody and visitation, or spousal support, the dissolution process may take much longer than 6 months. Indeed, the more things that there are, the longer the divorce will take to complete.
What is the Procedure for a Divorce?
After a Petition for divorce or legal separation is filed, the Petitioner has to serve the Petition and supporting documents on his or her spouse. After service is complete, the Respondent has 30 days to respond. The parties must then disclose all assets and debts to each other either voluntarily or through discovery.
You then address issues requiring immediate attention, such as child custody and visitation schedules, child support, spousal support, and other aspects of the divorce. These arrangements are temporary and are often negotiated. If the Parties agree, they sign a stipulation and submit it to the court for approval so that the terms are enforceable. If the other side is not willing to compromise, our firm files a motion on your behalf, seeking court intervention to obtain temporary orders regarding custody, support or anything else that needs immediate resolution.
After everything has been properly disclosed, and we have conducted all necessary due diligence on your behalf, we will try and reach a permanent agreement. If necessary, we will go to trial with issues that cannot be resolved amicably.
Can I Change the Terms of the Divorce Order After the Divorce is Completed?
Yes, but court approval is required. Once the divorce is finalized, the parties must follow the court’s order closely. If a party needs to change something about the court’s order post-dissolution, that party must go back to the court and request a new court order. Otherwise, the changes will not be enforceable. It is common for one of the parties to request a change to either child support, child custody, or spousal support, and a knowledgeable family law attorney can provide you valuable assistance.
While there is no set definition as to what qualifies as a change in circumstances, there must be a significant change to warrant modifying your existing divorce terms. These include changes in income for one of the parents, for instance, caused by loss of or reduced employment, relocating to a different city caused by a job transfer, remarriage by one of the spouses, or increases in the expenses of raising a child, for instance caused by increased school tuition or increased medical expenses. A number of changed factors in your life circumstances could impact the terms of your divorce. Call us today so we can help you determine if your particular changed circumstances could serve to modify your existing dissolution court orders.
What is “Community Property” vs. “Separate Property”?
California law defines community property as any asset acquired or income earned by a married person while living with a spouse. Separate property is defined as anything acquired by a spouse before the marriage, during the marriage by gift, devise, or bequest, and after the parties separate. Community property can be either real property (houses, land, a condominium, townhouse, etc.) or personal property (cars, furniture, jewelry, bank accounts, investments accounts, life insurance, artwork, paintings, partnership interests, etc.). Community property includes the employment earnings of either member of the couple, items purchased or otherwise acquired with such earnings, and the appreciation in value of these items.
The theory underlying community property is analogous to that of a partnership. Each spouse contributes labor and finances for the benefit of the “marital community.” Each spouses accordingly shares equally in the profits and income earned by the community. This means that each spouse owns an automatic 50% interest in all community property, regardless of which spouse originally acquired the community property. Spouses may also hold separate property, which they solely own and control.
How Will the Court Divide Our Property?
The law requires that the marital community estate be divided equally if there is no written agreement requiring a particular division of property, such as a premarital agreement. To do this, the total fair market value of the community assets is added up, from which the joint obligations of the parties are subtracted, thus yielding the net community estate. Unless agreed otherwise, each spouse must receive half of the net community estate.
For assets that are easily divisible, such as bank accounts, the court will divide and order the distribution of those funds equally. For assets that are not readily divisible, the court’s overall goal is to ensure each spouse receives half of the entire community estate, which it keeps in mind when assigning market values and deciding who will take what community piece of property. So in the case of larger assets, such as a home or vehicle, both spouses will be awarded equalized assets by the end of the division process. For example, if one spouse gets a $20,000 car and the other receives a house valued at $50,000, the first spouse is required to “equalize payment” of $15,000 to the other to make up the allocated difference ($30,000 divided by two).
If I Move Out of Our House, Does That Mean That I Cannot Claim an Ownership Interest in the House?
Even if you move out of your family house, you still retain your ownership interest in the home and its value. If you continue to contribute toward the mortgage and maintenance of the property after you have moved out, you may also be entitled to credits and reimbursements.
CHILD CUSTODY, VISITATION & SUPPORT
In any action where the parties have minor children, it will be necessary to obtain court orders pertaining to the custody and/or visitation rights of each parent. Every family is strongly encouraged to work out a shared parenting plan among themselves. However, in many cases, and for many different reasons, the parties are unable to reach an agreement on their own. If this is true in your case, it will be necessary for a trained professional, such as a child custody counselor, to assist you and the other parent in reaching a resolution together with your attorney.
What Does the Law Say About My Rights to Custody and Visitation?
The law begins with the presumption that both parents have an equal right to time with the minor children. California has no law that favors either mother or father to have custody or visitation. The policy of the law in this state is to allow the children frequent and continuing contact with both parents, so long as the children are safe in each parent’s care.
What is meant by Child Custody and Visitation?
In a divorce or paternity action, the court has the authority to decide which parent a child will live with after the divorce. The court also has the authority to decide how much time each parent will spend with the child. This is usually the most difficult part of any family separation. The courts therefore encourage parents to work out these issues on their own because the parents know the child best and should be in a position to determine what is in the child’s best interest. However, if you are unable to work out a plan for the custody and visitation of your child or children, then the court will make legal orders and determine whether a parent shall have joint or sole legal custody and/or primary physical custody.
What is Joint Custody vs. Sole Legal Custody?
California law encourages a form of custody called joint legal custody, giving both parents the right and responsibility for decisions about the child’s health, education, religious upbringing, and future welfare. If a particular situation requires that one parent make these decisions, then the court can make an order giving that parent sole legal custody of the child or children. The factors that go into those decisions are too complex to state here, but your attorney will be able to provide you with further information.
What is Legal Custody?
When parents are unable to agree upon custody, the court will make a ruling by which the court grants one parent primary physical custody, while secondary custody to the other parent. These court orders can take many forms depending on the needs of the children and parents. A common physical custody order is for the children to reside with one parent during the week, and spend alternating weekends with the other parent. However, there can be many variations of a custody arrangement to suit each situation.
The court also has continuing authority to modify custody orders as the circumstances of parents and children change over time. For instance, although the child does not have the right to decide which parent to live with, the court is likely to consider the child’s wishes, especially if the child is older.
What if I Do Not Think That My Spouse is a Good Parent, and the Children are Better Off With Me?
There are times when the children’s health, safety, and welfare require that they be with one parent more than the other or exclusively with just one parent. In these cases, there is strong evidence that one of the parents is either neglecting the children or subjecting them to physical, emotional or mental harm while in that parent’s custody. However, more often than not, it is the breakdown in the parents’ relationship that leads one spouse to feel strongly that the other spouse is a “bad parent.” In this case, it is extremely important for each parent to examine their own intentions during their quest to limit the other parent’s custodial/visitation rights.
An overwhelming majority of studies show that children experience far less damage as a result of the breakdown in their parents’ relationship if they are able to maintain a constant and ongoing relationship with both parents, and the children are not subjected to the criticism that one parent expresses about the other. So even if your relationship with the other parent is strained, the children will still substantially benefit if you conduct yourself in a respectful and professional manner throughout the divorce process.
This includes (a) being the best parent you can be during your custodial time, (b) encouraging the children to spend time with the other parent, (c) not speaking negatively about the other parent in front of the children (regardless of whether you are right or wrong), and (d) always reminding the children that they have 2 parents who love them very much.
Maintaining civility and respect during a contested divorce may be challenging and difficult. It is natural to experience extreme emotions during the pendency of these proceedings, but for the sake of your children, and your own sanctity, it is the best approach.
What if My Children are in Danger in the Custody of the Other Parent as a Result of Abuse or Neglect?
Discuss these concerns with your Attorney immediately. There are emergency orders which your Attorney may seek from the court. But keep in mind that these requests are reserved for situations where a child is suffering from actual abuse or is in imminent danger of being harmed.
Can I Force the Other Parent to Take Parenting Classes or Undergo Anger Management?
A request for parenting classes and/or anger management classes may be appropriate under certain circumstances. The reasons for your request should be discussed with your Attorney and also discussed in mediation. The mediator has the ability to recommend to the court that one or both parents participate in programs or classes that will benefit your children.
If We Have an Agreement on How We Want to Share Custody, Do We Need to Go to Court?
No. If you and the other parent agree on the timeshare schedule that works best for your family, notify your Attorney and we can prepare the agreement for everyone to sign. That agreement can be filed with the court and signed by the judge as the Court’s order.
What If We Cannot Agree on a Shared Custody or Visitation Schedule for Our Children?
If you and your former spouse are unable to reach an agreement with regard to custody or visitation of your children, your Attorney may file a motion with the court on your behalf for child custody and/or visitation. This motion will advocate for an appropriate division for custody and visitation from your standpoint. A hearing on such a motion is usually held approximately 6-8 weeks from the date of filing.
How is Child Support Calculated?
Child support is usually calculated based on a mathematical formula based upon percentage of custodial time, the income of each parent, and other factors including any extraordinary needs of the children, such as special medical or educational needs.
Can I Change the Child Custody/Support Order After the Divorce?
Yes. In the event your or your former spouse’s life circumstances change, you can request the court to change or modify the child custody and/or support order(s). Life circumstances that may warrant such changes can include remarriage of a spouse, changes in income, or relocation of a spouse.
SPOUSAL SUPPORT OR ALIMONY
What is Spousal Support or Alimony?
Alimony, spousal support and spousal maintenance are all different terms for the same thing. Spousal support is money paid by one spouse to the other after the divorce for the purpose of maintaining the former spouse’s standard of living during the marriage. For many spouses spousal support is often their primary financial security going forward after the divorce is finalized, especially if that spouse was the non-earning or homemaker spouse. The issue of spousal support is often one of the most disputes aspects of a divorce.
Spousal support laws are complex and can require detailed analysis. The applicable laws, calculations, enforcement aspects, modification issues, and tax reporting issues, must all be considered and taken into account.
How is Spousal Support Calculated?
Generally speaking, the court will use a mathematical formula as a guideline to determine spousal support, but the actual amount of spousal support ultimately depends on a number of factors that the court will weigh and assess. These include, by way of example, the following factors: how long the couple has been married, age and health of each spouse the past income and earnings of the spouses, the potential earning capacity of both spouses, their respective expenses, whether there are minor children at home, contributions of both spouses to the marriage, and other relevant factors.
How Long Will a Spousal Support Order Last?
The length of the marriage impacts the duration of spousal support. For a marriage of less than 10 years, considered a “short-term marriage,” the standard period of spousal support is one-half the length of the marriage. For example, if you were married six years, support would be paid for three years. For a marriage of 10 years or more, considered a marriage,” the court has discretion to award spousal support for a fixed period of time, with a conditional termination date or an indefinite period of time, subject to modification. Long-term marital support could also be based on the parties’ agreement. Of course, duration may be modified upon a change of circumstances such as remarriage, unemployment, salary increases, etc.
What Are the Tax Implications of a Spousal Support Order?
Assuming that spousal support is a part of the written agreement or judgment, spousal support is taxable to the recipient and deductible to the party responsible for payment.
What are the Health Insurance Implications of a Spousal Support Order?
Once a divorce is finalized, medical insurance is no longer available to the spouse whose health insurance benefits were derived from the other spouse’s health insurance plan. Under COBRA, however, a divorced spouse may continue with insurance for a period of 36 months under the same coverage benefits as when married. COBRA stands for the Consolidated Omnibus Budget Reconciliation Act of 1985, a federal law which enables individuals to continue health insurance coverage during a transitional or temporary period.
Since COBRA benefits are meant to be short-term, you should obtain another health insurance policy suitable to your needs. If you can obtain coverage through your own employer, you should find out the process from your workplace. You may immediately obtain health insurance through your own employer and do not need to wait for an open enrollment period.
It is important resolve matters of health insurance while going through divorce, especially when it comes to children, so you are not without necessary health care benefits after the divorce is finalized. We can help you with this as well.
Can I Change the Spousal Support Order After the Divorce?
Yes, as long as the court’s original order awarding support does not include the phrase “non-modifiable.” As such, in the event your or your former spouse’s life circumstances change, you can request the court to change or modify the spousal support order. These include changes in income, for instance, caused by an involuntary loss of or reduced employment, remarriage by one of the spouses, or other factors which significantly affect finances.
Can I Adopt My Spouse’s Children?
Yes, step-parent adoptions are fairly common and not that difficult. However, it is advisable to hire an attorney knowledgeable in the adoption legal process to guide you through the paperwork, to insure that all of the necessary legal documents are prepared correctly and properly filed with the court.
How Can I Adopt a Child?
There are many options for adopting children both domestically and internationally. Many people go through licensed private adoption agencies or public agencies, which place children from foster care with adoptive parents. Surrogacy is another option, which involves partnering with a gestational carrier or a surrogate. A surrogate is a woman who carries a child for an individual or a couple, usually called the intended parents. Surrogacy can involve substantial financial agreements and arrangements. Private party or direct adoptions are also common. For example, family adoptions are a common type of private party adoptions, where one relative adopts a relative child in their extended family. Each type of adoption has its own unique requirements and challenges, and should be handled by an experienced attorney.
We Were Never Married and Have a Child. What Should We Do?
If you were not married to the person with whom you have had a child, then you will need to file a paternity action, which is a legal proceeding to determine and confirm the child’s father. The court will then be able to issue any orders regarding custody, visitation and/or child support.