Frequently Asked Questions about California Divorce and Family Law Here are some answers to common questions about family law issues that many of our clients face. Please contact our attorneys for advice on your particular situation.
What are Valid Grounds for a Divorce in California?
California is a “no-fault” divorce state. The only two grounds for a divorce in California are “irreconcilable differences” or “incurable insanity.” Irreconcilable differences allows either party to file for divorce if either one believes that the marriage cannot be reconciled, even if the other party does not want a divorce.
How Long Does it Take to Get a Divorce?
You cannot file a petition for dissolution of marriage (divorce) in California unless you have been a resident of the State of California for at least six months and a resident of the county in which you are filing for three months. If you have satisfied these requirements, you can get a divorce six months from the date the respondent is served with the petition. However, the divorce is not automatic, and all legal requirements must be satisfied prior to getting a judgment dissolving your marriage. At the Law Office of Barbara J. May, we can help you navigate the divorce process and paperwork to obtain your judgment as expeditiously as possible, given the circumstances of your case.
Can I Get Spousal Support?
In order to request temporary support after separation, you must file a Request for Orders with the court. The matter is then set for a hearing and the court will decide whether or not to award temporary support based upon the circumstances of the parties. Temporary spousal support is often based on a guideline calculation. Support that is not temporary (awarded after a judgment becomes final) is based on different factors identified in Family Code section 4320. These factors include:
- The standard of living during the marriage
- The marketable skills of the supported party
- The extent to which the supported party’s present or future earning capacity was impaired by periods of unemployment during the marriage
- The extent to which the supported party contributed to the attainment of an education or training by the supporting party
- The ability of the supporting party to pay spousal support
- The needs of each party
- The obligations and assets of each party
- The duration of the marriage
- The age and health of the parties, etc.
- Whether or not the court will award spousal support is highly dependent upon the specific facts of the case. The court has a wide range of discretion when awarding spousal support.
How Can I Get Child Support?
California law provides that both parents have a general obligation to support their minor children, whether or not the parents were married. Child support can be requested by one party from the other through an action for dissolution, legal separation, nullity, paternity or a domestic violence action. Child support is based upon guideline calculations established by the State of California. Factors used in this calculation include the income of both parties, the amount of time the children spend with each parent, the parents’ tax filing status, and certain allowable deductions. The calculation is made by a computer program used by attorneys and judges. The Department of Child Support Services offers a guideline child support calculator that you may use to get a rough calculation for support at www.childsup.ca.gov/Resources/CalculateChildSupport. Whether you are the parent seeking support or the parent to be paying support, the attorneys at the Law Office of Barbara J. May can help you navigate through the child support process.
Can I Have the Court Change the Amount of Child Support I Pay?
Child support is always modifiable and may be changed when either party’s financial circumstances change or there is a change in the custody or visitation schedule. A consultation with an attorney utilizing the computer program for calculating support will give you an idea of the possible increase or decrease in the amount of support you are paying or receiving.
How Will Property Be Divided?
California is a community property state. This means that all property acquired during the marriage is community property. There are exceptions such as property received by gift or inheritance which are the separate property of the spouse receiving them. The court will split community property evenly in a divorce. Generally, this means that if one party receives a particular asset, the other party should receive an asset or assets of equal value.
Will the Court Give Me Custody of the Children?
There are two types of custody in California, Legal and Physical. “Legal Custody” gives the parent or parents the right and responsibility to make the decisions relating to the health, education and welfare of a child. A parent who has “Physical Custody,” is the parent with whom the child resides with and is under the supervision of, subject to the power of the court to order visitation to the other parent. There are two ways to award custody: sole and joint. Sole custody means custody to one parent; joint means that the parties share custody. California law provides that in making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the other parent. When custody of a child is in dispute, the parties must attend mediation. It is the mediator’s role to use his or her best efforts to encourage an agreement on these issues in accordance with what the mediator feels is in the best interest of the child or children. In Monterey County, if an agreement is not reached in “first tier mediation,” the mediator may only report to the court that the parties did not reach an agreement. The parties may then attend “second tier mediation.” If an agreement is not reached in second tier mediation, the mediator will make a recommendation to the court. At that time, either party may request that the recommendation be made an order of the court. Either party may also dispute the recommendation and request a hearing where evidence and testimony are offered to the court. No agreement or recommendation is legally effective between the parties unless it has been made an order of the court.
Will the Court Let My Child Live Where He or She Wants to?
California law provides that if a child is of sufficient age and maturity and can form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child in making an order granting or modifying custody. This does not mean that a child can choose where he or she wants to live. How Is Parentage Determined? Parentage is determined by either the mother or father of the child filing a Petition to Establish a Parental Relationship with the court. If necessary, blood tests will be taken of the mother, child and alleged father. Blood tests are usually conclusive in determining whether or not the father is the true father of the child. Prior to parentage even being determined, the Court may make orders as to custody, visitation and child support.
What Are My Rights as an Unmarried Parent?
A court may make a determination of custody and visitation in parental rights cases, and those involving domestic violence, based on the best interests of the child. A parent, whether married or unmarried, also has the responsibility to support his or her children. However, you need not be current on child support payments to be able to have parenting time with your children.
What if We Already Have an Agreement about How to Share the Kids?
If you already have an agreement about how to share the children, you should put it in writing and file it with the court. If your agreement is not made into a court order, you will not be able to enforce the order
Can I Make My Spouse Pay for My Attorneys’ Fees?
If you request an order from the court that your spouse pay for your attorneys’ fees, the court will look at the differences in income of each party. The court has broad discretion to make an award for attorneys’ fees, and if the court makes an order, it is oftentimes not for the entire amount of a party’s fees. Even if the court makes an order that your spouse pay your fees, you are still responsible to pay your own fees until your spouse actually pays the fees ordered.
Can My Spouse and I Use the Same Lawyer?
The law only allows both parties to use the same attorney if they are advised of the conflict of interest and if they agree to sign a waiver, waiving the conflict of interest. Very few attorneys, however, will agree to represent both parties because of the high potential for a conflict of interest. A mediator does not represent either party, but assists the parties in reaching an agreement and drafting documents.
What Is a Retainer and How Is it Used?
The Law Office of Barbara J. May uses a “retainer” as an advance payment toward fees and costs. The “retainer” is deposited into the firm’s attorney trust account and the fees are deducted from the remaining balance in the retainer account each month. A quote we may give you for a retainer amount is not a set fee to represent you. If the case is completed before the entire retainer is used, you will be refunded any unused amount. If the retainer is depleted before your case is complete, you may be required to provide an additional retainer.
What Is A Legal Separation?
A legal separation is much like an action for dissolution of marriage, except that the parties do not return to the status of unmarried persons and are not free to remarry. A judgment for legal separation usually settles all property, support, custody and visitation issues. Oftentimes a person will file a legal separation action initially because they have not met the residency requirements. Once the residency requirements are met, an action for legal separation can be amended to become an action for dissolution of marriage. A legal separation should not be confused with the date of separation. You do not have to obtain a “legal separation” before filing for divorce.
Can I Modify the Custody Order for My Children?
A party seeking to modify an existing child custody order must file a Request for Orders with the court to ask for a change. The party bringing the request must show the court that there has been a change in circumstances that would justify the requested modification.
Can I Modify an Order for Spousal Support?
A party seeking to modify an existing spousal support order that is not a temporary order must file a Request for Orders with the court to ask for a change. The party bringing the request must show the court that there has been a change in circumstances that would justify the requested modification.
Contact a skilled family law attorney today If you need legal assistance with a family law case in Monterey County, call the Law Office of Barbara J. May today at 831.649.1253 or contact us online to schedule a reduced-fee initial consultation.