What starts my divorce?
Your divorce will begin when a petition for dissolution of marriage is filed with the court and served on the responding party, your spouse.
Is there an advantage to being the person who files for divorce?
It does not matter in the court's eye which spouse files for divorce. Occasionally there are strategic advantages to filing first.
What does it mean to be separated?
Many people think of separation in physical terms, i.e. when you no longer live together. However, legally this is not the definition of separation. A separation occurs when one spouse reaches the conclusion that the marriage is over and communicates that to the other spouse. If there are acts of marriage between the parties after that communication, the court may believe that separation did not occur and the parties were merely having marital difficulties. An act of marriage is any act which is inconsistent with the final breakdown of the marriage.
How can I get my spouse to move out of the house?
Your spouse can be ordered to move by the court if you are able to demonstrate that good cause exists for the move, and/or there is financial ability to relocate without hardship. If domestic violence has occurred, contact the police. More immediate action to move the offending spouse will be taken by local law enforcement.
I heard that divorce in California is considered no-fault. What does that mean?
Divorce in California will be granted if you and your spouse have irreconcilable differences or if one of you is incurably insane. The court does not look at who may have been at fault in a marriage.
How long does it take to get a divorce?
Depending on your situation, the divorce process typically takes between 6 months and two years to complete.
What will the divorce cost?
The cost of a divorce is seldom known in advance. The primary factors in the cost of a divorce are court hearings, depositions, expert witnesses, motions, ex parte applications, and trials. When divorcing parties disagree on issues and a judge is asked to make the decision, costs increase.
My spouse has significantly higher income than me. How can I get help with the legal fees?
When the income of the two parties is not equal, the court will usually order a contribution from the higher earning party to the attorney fees of the lower earning party. The court also has the power to order a contribution to the attorney fees of the party who has reasonably tried to settle or against the party who was unreasonable in the matter.
For years I have been a homemaker. Should I start working now or will that negatively affect my settlement?
You will ordinarily be better off financially if you start working. Typically, you will keep your earnings and will risk losing only a small portion of possible spousal support. As each case is unique, speak with your attorney about your specific situation, and he or she will advise you accordingly.
What is community property?
First, you must realize that recognizing community property may be complex. Generally, community property is defined as all property acquired during marriage. This includes retirement accounts and real property even if your name is not on the title, unless you agreed that the property would belong solely to your spouse. The court will divide all community property equally in your divorce.
What is separate property?
Separate property is property owned prior to your marriage. Property acquired during your marriage using your separate property to make the acquisition may be considered separate. Rent, interest, and profits received during marriage from property you owned before is separated. Earned income after your date of separation and property you purchased with the earned income is yours. Lastly, separate property includes gifts and inheritances received during marriage, as well as property you have designated to be your spouse's separate property. In some cases, there are mixed assets. An example of this is if you owned your home before marriage, sold it, and used the proceeds to purchase a community property home. The amount you received from the sale of your pre-marriage home may be reimbursed to you as your separate property from the value of your community property home.
What about pre-marital agreements?
Pre-marital agreements are useful, and if properly prepared, will generally be upheld. However, these agreements are frequently disputed and result in additional litigation. Presently, California law permits the waiver of spousal support obligation under certain conditions. The rule is not absolute, however, and the court may or may not enforce this provision.
What if the judge awards me a financial judgment, but my ex-spouse has hidden all the assets?
Your attorney will help you to uncover hidden assets when needed by preparing an audit of your spouse's spending habits, income, and debt. Forensic accountants and appraisers are called upon to locate and value assets, which will be brought to the court's attention and will be included, when possible, in your settlement.
What can I do if my spouse does not pay me the support I am entitled to receive?
Some jurisdictions have relatively simple means of garnishing part of a spouse's wages so that the spouse's employer pays the wages directly to you. In areas where this is not available, your lawyer can return to court and make a motion for a financial judgment for the sums owed.
What are ATROS?
ATROS is an acronym for "automatic temporary restraining orders." These orders affect both you and your spouse when the divorce documents are served and the divorce process begins. These restraining orders prevent each of you from removing minor children from the state of California; canceling or changing insurance policies; or hiding, borrowing, or transferring assets. These orders are printed on the reverse side of the summons.
At what point am I considered single again?
You are considered single after your dissolution settlement. However, you may have your attorney file a request for bifurcation of status, which the court typically will grant, permitting you to be single before your divorce settlement.
When is it appropriate to seek a change in my child custody agreement?
The court approaches custody issues from the standpoint of the best interest of the child. If you can demonstrate that a parent is truly unfit, ignores the children, is neglectful, uses or permits drug use, or is physically or emotionally abusive, then a child custody change is warranted. Also, a child who expresses strong interest in moving to the other parent's home is an acceptable reason for assessing the current agreement and making changes.
When is my child declared independent?
A child becomes legally independent at age 18 (or in some states, age 21). Some factors may contribute to a child's obtaining independence before their eighteenth birthday, including entering into the United States Military Service, getting married, becoming financially independent, or obtaining a permanent residence away from either parent.
How much influence does my child have in the custody declaration?
Much of this depends upon the child's age. The older the child, the more influence he or she will be able to exert. Although the court does have the final say, the testimony of a child often places significant weight on the judicial scales.
What if the wife is pregnant at the time of separation and divorce?
The unborn child is treated no differently than any living child.
Who normally gets physical custody?
In the majority of the cases, the mother is granted physical custody. However, in some instances, the mother works nights or is heavily involved in an educational pursuit. In cases of this sort, physical custody is often granted to the father.
Does there need to be custody agreements?
It is required by law for at least one parent to always be legally responsible for the child. Any change in the status of custody rights must also always be made in concern with the judicial system.
Can a non-parent obtain custody of my child?
It is possible. However, the court must be petitioned with the case being presented that the non-parent has a meaningful relationship with the child, and that the welfare of the child is best in the non-parent's hands.
Can my child be used as a witness in court?
If the child is deemed to be of mature age and able to give reliable and consistent testimony, then eligibility to testify with respect to grounds and custodial issues can be granted.
How long does the child custody evaluation process take?
Any evaluation should be initiated at least six weeks prior to the court date. This process should never be hastened or undergone without full intentions of completion. A full evaluation takes about four weeks, assuming relative distance proximity between both the parents and the evaluator
I am involved in a divorce and I do not think that a child born during the marriage is mine. Can I have blood testing done to determine paternity?
Yes. In fact, if you go through the divorce and do not contest paternity once a final decree is entered, you will have waived your right to contest paternity. The court order will contain a declaration that the child is a child of the marriage, meaning your and your wife's child.
What is the legal process for finding out if a child is my child?
A petition for paternity must be filed, requesting that the court order HLA or DNA testing of you, the child, and the mother.
How much does paternity testing cost?
Depending on the type of testing and the facility, paternity testing can range from $200 to $1,000 per person.
What can I do if I am abused?
Call the police. Charges may be filed if the abuser's attacks constitute a crime. You may also apply for a protective order. In Orange County, California, the following domestic violence assistance programs are available to help:
What is a protective order?
A protective order is a civil court order that can be issued by a judge if probable cause is found to believe that the applicant has been abused, or is threatened with abuse from another person. Violation of a protective order is, in most cases, a criminal offense.
What does a protective order do?
It is a court order directing that the offending party refrain from abusing or threatening you. In the order, the court may also require both parties to obtain counseling or other social services, including domestic violence education or anger management counseling.
How do I know if I am eligible for a protective order?
If you are in fear because your spouse or partner has threatened you with bodily injury, caused you bodily injury, or attempted to do so, you may be granted a protective order. There is no requirement that the other person live in the same household or be married to you.
How do I get a protective order?
Contact your local law enforcement for guidance on securing a protective order.
How long does it take for a protective order to take effect?
Depending on the seriousness of the allegations in the application, the protective order may be issued immediately, without a hearing. This type of order is temporary, and will be followed by a court hearing where both parties must be present. If abuse is proved by a preponderance of evidence, the court will issue a permanent protective order (valid for one year) ordering the offending party to refrain from abusing, harassing, or disturbing the peace of the victim, either directly or indirectly.
What if a violation takes place?
Call the police. A knowing or intentional violation of a protective order is a criminal offense punishable by imprisonment and/or fine. A police officer need not witness the violation in order to make an arrest, as long as there is proof that the protective order has been served on the offending party, and there is probable cause to believe that the other person committed a violation.
What if I decide not to follow-up on a domestic violence report I had to make?
Once domestic violence has been committed and a police report made, it becomes a matter for the courts. Domestic violence is considered a crime against the state and the abuser may be prosecuted without your participation.
What is a QDRO?
A Qualified Domestic Relations Order (QDRO) is a legal document that tells the retirement plan administrator how to divide the retirement benefits that were acquired during the marriage between the parties. It is an order of the court, and is served upon and is binding upon the administrator of the retirement plan.
A QDRO identifies the type of retirement plan in place, the percentage of the plan to which each party is entitled, the details of any survivor benefits, and the earliest date of release of the funds in the plan.
Why do I need a QDRO?
The IRS will consider the transfer and division of the retirement benefits as a taxable event unless a QDRO is created and filed. A QDRO preserves the right to elect surviving beneficiaries for each party's portion of the plan. It will also ensure that the non-employee spouse will receive a portion of benefits if the employee spouse dies.
If no QDRO is filed, the plan administrator may not allow the employee spouse to retire until the division is completed, thereby delaying and freezing the benefits. A QDRO will ensure that the non-employee spouse will receive the benefits to which they are entitled, upon the eventual retirement of the employee spouse in the future.