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Frequently Asked Questions

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How Long Does It Take to Get a Divorce in California?

The short answer to this question is: a minimum of six months. But that answer requires a little more explanation. In order to start the divorce process in San Diego County or elsewhere in California, you must file a petition for dissolution of your marriage with the court, and then serve it on your spouse. The six month waiting period runs from the date the petition is served on your spouse, not the date the petition was filed.

Because divorce is a life-changing decision, this six month period gives you the opportunity to be sure that you really do want the divorce you've petitioned for. If you and your spouse agree on the terms of the divorce, you can use this time to reach a settlement agreement to submit to the court. The Judgment can be approved by the courtbefore the end of the six month waiting period and returned to the parties but the Judgment will indicate the date that the parties are officially "single" which is the end of the six month period.  All orders in the Judgment are effective upon the parties signing the agreement and become orders of the court once the court approves the Judgment, even if that is before the six month period.  If you do not reach an agreement or otherwise resolve the issues until after the six months, the date the court approves the Judgment is also the date that the parties are returned to the status of "single" persons.   

What is the Process for Getting a California Divorce?

There are different options for divorce in California, depending on your circumstances. The process is the same in San Diego County and all other California counties.

The California divorce or dissolution process proceeds by one person filing the initial divorce Petition.  It does not matter which spouse (or domestic partner) files the initial Petition in terms of any legal advantage.  Once it is filed, it is served to the other spouse along with the other required court documents.  That person then has 30 days to respond to it.  In California, you may have a contested divorce or an uncontested divorce.

You or your spouse may ask the court to enter temporary orders regarding things like child support and custody. You and your spouse will have the opportunity to conduct "discovery," which means to exchange information and documents that pertain to your divorce. Both spouses must complete financial disclosure forms prior to a judgment being entered by the court.  

You, your spouse and your attorneys then discuss settlement. If you reach an agreement, then one of the attorneys will draft a detailed Marital Settlement Agreement. If you can't agree on all the terms of your divorce, there will be a mandatory settlement conference wherein all parties attempt to resolve the issues with the assistance of a pro tem judge.  If that attempt fails, then the court will set a trial on the contested issues. Based on the settlement agreement or trial outcome, one of the attorneys will prepare a Judgment of Dissolution of marriage—your final divorce judgment. The judge signs the final Judgment, it is filed with the court, and notice is sent to all parties, which concludes the divorce process. 

How is Child Custody Decided in California?

In California, courts are willing to allow parents to reach their own agreements as to child custody in almost all circumstances. Of course, parents are sometimes not able to reach agreement, in which case the court must decide.

California child custody law is guided by the principles that children benefit from regular, frequent, and ongoing contact with both parents, and that the court's primary concern should be the health, welfare, and safety of children.  California law specifically states that neither parent should be given a preference in custody considerations based on their sex. Both parents are presumed at the outset of the custody determination to have equal rights to custody. 

Within this framework, courts in San Diego and other California counties must take into account all circumstances of each case, and may consider any relevant information. Factors which may be considered include whether either parent has a history of substance abuse or of committing domestic violence or child abuse; which parent is more likely to encourage a positive relationship between the child and the other parent; the child's preference if the child is mature enough to express a preference; and the stability of a proposed living environment. 

What Does Legal and Physical Custody Mean?

In a California child custody case, "legal custody" refers to which parent has the right to make major life decisions for a child, such as decisions about medical treatment, religious upbringing, and education. Courts in San Diego County and other California counties generally favor joint custody arrangements, which means both parents share in these decision making rights and responsibilities. This does not mean that you must reach agreement with your child's other parent on every single decision, but you should attempt to reach a consensus regarding major decisions. Bear in mind that good communication makes co-parenting much easier, not just on you, but on your child. Communicating in advance also reduces the likelihood that you and your child's other parent will end up in court arguing about the decision.

"Physical custody" simply refers to the parent with whom a child physically resides. Like legal custody, joint physical custody may be agreed to by parents or ordered by California courts in divorce or custody matters. With joint physical custody, your child spends an approximately equal amount of time at your home and the home of the other parent.  This allows regular, frequent, and ongoing contact with both parents, which California courts encourage. Joint physical custody does not mean that both parents have exactly equal parenting time with the child. Oftentimes, children will reside primarily in one parent's home and have a visitation schedule with the other parent that is consistent.

Under some circumstances, a parent will be ordered to have only "supervised" contact with their child or children.  This means that the parent must have another person present during the time they spend with their child or children due to possible issues of physical or verbal abuse.  

When circumstances change, either parent can seek modification of the parenting orders and the Court will consider whether those circumstances warrant a change in the current orders.

Can Alimony Be Modified in California?

California alimony, also known as spousal support, can be modified. There is one important caveat to this: if you and your ex-spouse agreed in your settlement agreement that spousal support would be non-modifiable. If the term "non-modifiable" is in your agreement, then the court is without jurisdiction to modify or change the ordered spousal support amount. Assuming no such wording is in your court order or judgment, you and your ex-spouse  can agree to modify or even terminate spousal support whenever you wish, but a modification of spousal support in California typically takes place when there has been a change in circumstances for either of the parties. 

One common change in circumstances leading to a modification of spousal support is when the spouse receiving support begins living with a person of the opposite sex. California law presumes in this case (though the presumption can be rebutted) that there is a decreased need for spousal support. Other common changes of circumstances include an increase in income of the party receiving support, or a job loss or decreased income on the part of the person paying the support.  An increase in the income of the person paying support after the divorce, however, does not necessarily warrant an increase in spousal support. Because spousal support payments are typically paid through wage assignment directly from a person's paycheck, it is important to submit a new wage garnishment to the employer if a court order is made modifying the amount of spousal support to be paid.   

Spousal support terminates automatically on the death of the spouse receiving support and if the supported spouse remarries.

What is Marital vs. Separate Property in California?

Only marital (or referred to as "community") property is subject to division in a California divorce, so it is essential to determine what property is considered separate and what is considered marital before attempting to divide property.

Marital property includes all assets acquired by a couple from the date of their wedding to the marital cut-off, or separation date. There are limited exceptions to this rule, such as assets that were gifted to, or inherited by, one party during the marriage. Such property is considered "separate," but may be converted into marital property by commingling, such as when a wife who inherits money from a relative deposits the funds into a joint bank account and the monies are spent jointly by the couple.  

Property belonging to one party before marriage is considered separate property, as is property acquired or earned after the couple's date of separation. However, if an asset was earned during the marriage, but paid after the date of separation, such as a performance bonus at work, it is considered marital and thus subject to division as community property. There are many nuances to what constitutes marital versus separate property and oftentimes it is not a clear cut issue.  Obtaining legal advice with respect to your particular situation is vital. 

The date of separation does not necessarily mean the date one party moved out of the marital home, but when one or both spouses decide the marriage is over, as determined by their words and actions. If the date is unclear, courts in San Diego and elsewhere in California tend to err on the side of a later separation date, so that more property will be considered community property.

Couples can agree, either in a prenuptial or postnuptial agreement, or in a divorce settlement agreement, to consider certain property either marital or separate, even if a California court would decide otherwise.

Do I Really Need a Prenuptial Agreement?

Not all California couples planning to marry need a prenuptial agreement, also known as a "prenup" agreement. However, you don't need to be wealthy to have a prenuptial agreement. Many couples who could benefit from a prenuptial agreement don't consider one. Here are a few reasons they should:

First, California is a community property state. Everything that goes into the marital pot is subject to equal division at divorce, whether that would be fair or not. Let's say your parents gave you and your spouse, as a wedding gift, a brand new car worth $30,000. If you divorce in a year or two, logic dictates that the car should be yours, but under California law, you and your spouse have an equal interest in it. There are numerous other examples where parties could dispute what truly is community property versus separate property.  A prenuptial agreement simply allows you to plan for property division based on what you and your spouse would consider fair and address the property items you both have prior to marriage and what would happen to those items in the event of a separation or divorce.  

The second reason to consider a prenuptial agreement in California is simply that it's far less expensive and stressful to agree on something now than it is to fight about it later. This is especially true in the case of businesses or other complex assets. Rather than spending thousands, or tens of thousands, of dollars on appraisals and legal fees in a divorce, for far less you can reach a reasoned, logical agreement on many issues to avoid potential litigation.  

Lastly, prenuptial agreements can actually help a marriage succeed. If you and your intended spouse learn to negotiate financial issues and agreements before marriage by creating a detailed agreement, you've created a blueprint for successful financial communication during marriage.

How Can I Make Sure My Prenup is Enforceable?

In order for a California prenuptial agreement to be enforceable in divorce, it needs to comply with the California Premarital Agreement Act. The Act requires three things: a prenuptial agreement must be entered into voluntarily; it cannot be unconscionable or fail to meet the disclosure requirements of the Act; and it must not be against public policy. 

"Voluntary" has a specific legal meaning: the person against whom enforcement of the agreement is sought must have had independent legal counsel before signing, or must have waived that right. In order to waive the right, the person must have received complete written information about the terms and effect of the agreement, and signed a separate document acknowledging receipt of that information and waiving the right to an attorney.  There must be a minimum of seven days between the date the agreement is presented to the person being asked to sign it and the day it is actually signed. Other circumstances may also be considered when determining whether a prenuptial agreement was signed voluntarily, such as whether the party who presented the agreement threatened to call off the wedding if it was not signed. 

"Unconscionable" means that enforcing the agreement would be very unfair; just how unfair may require a court to decide. "Against public policy" means something that violates the interests of society, such as enforcing a prenuptial agreement that would cause one spouse to become homeless or an agreement that would leave the couple's child without support. The rights of a couple's children or future children cannot be waived in a prenuptial agreement or otherwise.

The best way to make sure a California prenuptial agreement will be enforceable is to have it prepared by a qualified California family law attorney well in advance of the proposed wedding, and to be sure the person being asked to sign it chooses his or her own attorney to review it.

What Legal Rights Does a California Domestic Partnership Create?

When California first created the legal relationship of "domestic partner," domestic partners had relatively few legal rights. Today, two people who commit to a California domestic partnership have the same legal rights, protections, and benefits, as well as the same responsibilities, obligations, and duties that married couples have. 

These rights include being allowed to make health care decisions for each other in circumstances in which married couples would be able to do so. Domestic partners in San Diego County and throughout California are also granted hospital visitation rights, and may take family leave to care for an ill domestic partner as for a spouse. They may access health insurance and other insurance through their domestic partner's employer.

Of tremendous significance are the rights domestic partnerships convey with respect to children. Domestic partners are both presumed to be the parents of a child born into the partnership, and for those whose partners have children from a previous relationship, domestic partnership grants the ability to adopt under stepparent adoption procedures. In essence, California domestic partners have the same parental rights and responsibilities as spouses in any marriage, including the right to parenting time for children if they were born or adopted during the marriage.  The issues of both child and spousal support arise in domestic partnership matters.    

Domestic partnerships also provide numerous financial benefits. Domestic partners have the same rights as spouses regarding inheritance, whether or not an estate plan is in place. They receive access to survivor benefits from a partner's pension, and have legal standing to sue for the wrongful death of a domestic partner. Domestic partners are treated the same as spouses with respect to property tax provisions, and are required to file California state tax returns as a married couple.

How Do I Register a California Domestic Partnership?

A California domestic partnership is a legal contract between committed couples that conveys most of the same rights as marriage. While most registered domestic partners are same-sex couples, couples of the opposite sex may register as domestic partners if one partner is 62 or older. It's essential to register a domestic partnership so that the partners have the legal protections that married couples often take for granted. 

Registering a domestic partnership is actually relatively straightforward. Both partners must complete a "Declaration of Domestic Partnership" form, sign the form and have their signatures notarized. The form must then be submitted to the California Secretary of State along with the appropriate fee, which includes a $10 filing fee and a fee to support a training for service providers regarding lesbian, gay, bisexual, and transgender domestic abuse, and to provide educational materials on domestic abuse. In some circumstances, there may be an additional $15 processing fee for the form. 

Declarations of Domestic Partnership become a searchable part of the public record. Couples who do not want this information available to the public may complete a Confidential Declaration of Domestic Partnership instead, which will mean their partnership documents are accessible only to them.

Unions contracted in other states that are similar in substance to a California domestic partnership, such as civil unions from other states, may be registered in California. Couples need not be California residents in order to register a domestic partnership in San Diego or any other California county, but should be aware that their home state may not recognize the domestic partnership.

Can I Modify a California Divorce Judgment?

Life changes after a California divorce, and sometimes those changes make an existing divorce judgment unfair or impractical. Fortunately, it is possible to get a post-judgment modification under certain circumstances. 

The simplest of these is if you and your ex-spouse agree that something in your judgment should change. A very common example is parenting time, as parents' and children's schedules may change and a new parenting time schedule may work better for everyone. If you and your ex-spouse can agree on a modification of your divorce judgment, you can submit your proposed modification to the court and the judge will likely order the change you request. 

If you and your ex-spouse disagree on the need for a modification, the party who seeks the change will have to file a motion with the court and demonstrate a significant change in circumstances, especially with regard to child custody and parenting time. This is necessary in order to provide stability for California children whose parents are divorced, so that their living situation is not constantly changing. Child support can also be modified post-judgment according to the California child support guidelines. If custody or parenting time changes significantly, a change in child support is probably also warranted and appropriate.

A property settlement in a final judgment of divorce cannot generally be modified, but if an asset was not disclosed during the divorce, courts in San Diego and other California courts allow you to return to court to address the undisclosed or omitted asset or debt.  

How Do California Courts Determine Alimony?

Alimony, also called spousal support in California, is payment from one party to the other, either during or after a divorce. Temporary spousal support is paid to a lower-earning spouse by the spouse who earns more, while a divorce is pending. Permanent (more appropriately called "long-term") spousal support is awarded when a divorce is final, with the intention that it will restore the receiving (payee) spouse to a financial standard of living close to the one established during the marriage. 

As with many aspects of your divorce, you and your spouse may agree on alimony. If you cannot reach agreement, the court will decide whether to award spousal support, how much, and for how long. Factors that courts in San Diego and other California counties must consider include:

  • the length of the marriage
  • the age and health of the spouses
  • the marketable skills of the payee spouse, or how long it would take him or her to obtain marketable skills
  • the extent to which the payee spouse contributed to the payor spouse’s attainement of an education, training, career, or license
  • the extent to which the payee spouse's future ability to secure employment is likely to be affected by periods of unemployment during the marriage to attend to domestic obligations
  • each spouse's assets and debts
  • whether the payee spouse could work outside the home without excessive disruption to the care of dependent children in his or her care
  • each spouse's financial needs, based on the standard of living established during the marriage
  • tax consequences of an alimony award to each party
  • the payor spouse's ability to pay
  • the balance of the hardships to each party.

The court may also factor in any other information it deems just and equitable to consider.

Spousal support is one of the most frequently litigated issues in family court.  The judge has great discretion to award support, and how the relevant factors are presented to the court can make a significant difference in the orders that are made.  Our firm has extensive experience litigating and negotiating spousal support for our clients on both sides of this issue.  It is imperative that your attorney understands the dynamics within your particular matter to be able to fully present all relevant factors on this highly-debated issue.  As always, our goal is to reach an agreement without the necessity of litigation.  However, if that is not possible, we are ready to argue the matter before the court to ensure that your position and supporting facts are skillfully presented.

What Does "Community Property" Mean?

California is one of a minority of "community property" states. In most states, property is divided in a divorce according to principles of "equitable distribution." Community property states divide all marital property equally between the parties, without regard to other issues. (Equitable distribution, on the other hand, strives to arrive at a division that is fair under all the circumstances, but not necessarily equal.)

In a community property state, each party is considered to own one-half of all marital property and to be responsible for one-half of all marital debt. Even if property is clearly traceable to one party, if it is acquired during the marriage (with very limited exceptions) it is community property. For example, if you open a savings account after you are married and deposit your weekly paycheck into that account during your marriage, those funds are still community property even though they were earned by you and put into an account in your sole name.

"Quasi-community property" is property that was acquired by either or both spouses (or domestic partners) while living in another state that, if it had been acquired while living in California, would be considered community property.  For example, if you and your spouse lived in Florida for a year during your marriage and bought furniture there, it would be quasi-community property. Quasi-community property is treated by courts as community property in a California divorce.

Most divorces in San Diego County and elsewhere in California are resolved by settlement, not by trial. This means, as with many other aspects of divorce, that couples have the freedom to agree on property division between themselves rather than allow a court to divide their assets. Couples may reach agreement as to property division during their divorce, or may have done so earlier in a prenuptial or postnuptial agreement.

Can I Move Away With My Kids After Divorce?

The short answer is, "Maybe." California values children having strong relationships with both parents, and when one parent wants to move away with the children after divorce, maintaining those relationships can be difficult. This is a particularly complicated area of California family law, and the law is constantly evolving. It is best to consult a family law attorney who is well-versed in the law of custody and parenting time so that they can advise how current law applies to your specific set of facts. 

In general, if one parent has primary physical custody, also known as sole physical custody, that parent has the right to move away with the children, unless the parent who is opposing  the move can show the court that the move would not be in the children's best interests, or would be detrimental to the children. However, if parents share joint physical custody, the parties both must argue what they believe to be in the children's best interests.

In such a situation, the court is faced with determining which parent should now be granted primary physical custody as one parent is moving.  These cases rely very heavily on the actual facts and circumstances surrounding the parenting of the children.  The court will look at how long the children have lived here, if they are involved in extracurricular activities or have other family members whom they are close to that also remain here.  Any and all relevant factors can be considered by the court.  These cases rarely resolve themselves and typically end up in court at a contested hearing.  

If one parent has sole custody, a "move away" situation requires the parent who wants to move to file a motion with the court for a modified custody order, or the opposing parent to file a motion for change of custody so the child can remain with him or her. At a hearing on the issue, If the parent opposing the move can provide sufficient evidence that the move would be harmful, the judge can order that the children remain here with the parent who is not relocating and make orders for visitation with the relocating parent.  

At the evidentiary hearing on move-away cases, the judge would receive testimony and evidence regarding whether the move would be in the best interests of the child, or whether the non-custodial parent can provide the court with enough evidence to show that the move would be detrimental to the children.  These cases are very difficult for the parents, and also for the courts.  Regardless of the court's ultimate orders, the children's lives will be altered and they will not maintain the same relationship they were able to prior to a parent moving.