Common Divorce Questions
What is the first step?
The first step to obtaining a divorce in California is to file a Petition for Dissolution. Once the Petition is filed, it must be personally served on the opposing spouse or “Respondent” (unless the opposing spouse agrees to accept service by mail and acknowledges receipt of the Petition). The Respondent then has 30 days during which to file a Response.
Many divorces are very simple and can be done relatively quickly—often without the assistance of a divorce lawyer. However, if there is significant property involved, children of the marriage or one spouse makes a significantly greater level of income than the other spouse, it is always wise to at least consult with an experienced California Divorce Lawyer before proceeding on your own.>
How long does it take to get divorced in California?
The State of California imposes a 6 month jurisdictional time period in all divorce cases. This means that you cannot officially be divorced at any point sooner than 6 months from the service of the Petition for Dissolution on the Respondent. However, many cases will settle prior to the six month period.
If your divorce case comes to resolution prior to the 6 month period you can have a judgment for divorce entered that states a marital termination date at some point in the future. All of the terms of your settlement including property division, debt division, child support, spousal support, child custody and visitation etc…will go into effect upon the execution of o the agreement. Your marital status will not change to “single” until the date specified in the judgment.
Who gets to live in the house during a divorce?
In some cases, the parties will decide that they can cohabitate during the divorce process. Perhaps if the house is big enough one spouse will move into a separate room. However, most divorcing couples do not wish to continue to live together and the parties are faced with the dispute over who gets to remain in the house.
If there is no agreement with respect to who gets to remain in the marital residence, one party can request form the court what is called “exclusive use and possession” of the marital residence. If the court orders exclusive use and possession to one party, the opposing spouse can no longer reside or enter the marital residence without the express permission of the in-spouse or a court order.
When children are involved, the best course is to keep as stable an environment possible for the benefit of the children. Therefore, in cases wherein one parent has primary custodianship of the children, that parent would most likely receive exclusive use and possession of the residence.
What is the difference between divorce and legal separation?
There is one major difference between a divorce and a legal separation: A divorce terminates marital status and returns both parties to “single” status while a legal separation preserves the status of the parties as a married couple.
Every issue adjudicated in a divorce is also adjudicated as part of a legal separation. Property is divided, debts are divided, child support and spousal support orders are made, and child custody orders are made as part of a legal separation. Legal separation is a good alternative for those couples that know that they can no longer live together, but are unsure as to whether or not reconciliation is a viable option ion the future. A legal separation once complete can easily be converted into a divorce down the road.
How expensive is it to get divorced?
Divorces can be very inexpensive or they can be ridiculously expensive depending on many variables including the reasonableness of the parties and unfortunately, the willingness of the attorneys chosen by each party to work together toward an inexpensive solution.
I always encourage settlement first. Divorce lawyers are known for running up the bill and over litigating divorce cases for no good reason. In my experience almost every case is a few candid conversations away from full settlement. Unfortunately, in many cases motions are filed and contentious issues are brought before the court before the parties and their attorneys ever discuss settlement. In my opinion, this type of practice is doing a disservice to the client.
Can I have my ex pay my attorney fees?
The general attorney’s fees statute used by divorce lawyers in California Is Family Code Section 2030. This authority allows the court to order an attorney’s fees contribution based upon the need of the requesting party for a contribution and the ability of the requested party to pay while looking at the disparity or difference between the incomes of the parties.
Most divorce lawyers will request an upfront retainer deposit in order to begin your case. They will then request that your spouse reimburse you for the attorney’s fees paid up-front. In cases wherein I believe that there is a good chance for an attorney’s fees contribution from the opposing spouse, I will take the divorce case for a very low upfront retainer and put the client on a manageable payment plan until we can get some relief from the wage earner on the other side.