Frequently Asked Questions
We understand that there are a lot of questions and concerns when it comes to divorce and family law, and every situation is unique. To shed some light, we’ve compiled a list of answers to the questions we receive most frequently from current and prospective clients. We hope that this provides some clarity and helps set your mind at ease about the process ahead.
DIVORCE FAQ
What is the first step in divorce?
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. If your spouse, as the Respondent, fails to meet this deadline, you can request that the court enter a default against your spouse.
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 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 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 may decide that they can cohabitate during the divorce process. If the house is big enough, one spouse may choose to move into a separate room. However, most divorcing couples do not wish to continue living 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 “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 as 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 divorce and 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 who know they can no longer live together but are unsure as to whether or not reconciliation is a viable option ion the future. Once complete, a legal separation can easily be converted into a divorce down the road.
How expensive is it to get divorced?
Divorces can be very inexpensive or 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.
At Griffith, Young & Lass, we always encourage settlement first. Divorce lawyers are known for running up the bill and over-litigating divorce cases for no good reason. In our experience, almost every case is a few candid conversations away from the 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. At GYL, we are of the opinion that 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 upfront. In cases wherein we believe that there is a good chance for an attorney’s fees contribution from the opposing spouse, we 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.
What if I have a prenuptial agreement?
If you have a prenuptial agreement, the first issue to address is whether or not the agreement is valid and thus enforceable in family court. Either you or your spouse may wish to challenge the validity of the agreement. If the prenuptial agreement is either not challenged or found to be valid after it has been challenged, your divorce just became a whole lot simpler. Depending on the terms of the prenuptial agreement, there may or may not be additional issues to address in your divorce.
How are businesses divided in a divorce?
It depends on whether the business was started during the marriage or prior to marriage. Depending on the type of business and facts relevant to the management and investment sources related to the business, there are different formulas that your divorce lawyer will use in order to determine your respective rights concerning the business. This is a complex area of the law and it is very important that you understand your rights and obligations related to the business.
SPOUSAL SUPPORT FAQ
What is temporary spousal support?
Temporary spousal support is spousal support ordered and paid during the pendency of a proceeding for divorce. Some counties in California adhere to a guideline calculation when ordering spousal support. Temporary support in these counties is calculated much like child support with the family court judge plugging numbers into a calculator and ordering what the computer says they should order. San Diego County does not necessarily adhere to a guideline calculation. However, divorce lawyers who practice in San Diego will use a guideline calculation as a guide when advising their clients. Often, the court will use the guideline as a starting point as well.
How much spousal support will I have to pay / will I receive?
The amount of spousal support is determined by looking at the need of the supported spouse and the ability of the supporting spouse, as well as several other factors codified as part of Family Code Section 4320. The purpose of spousal support is to ensure that the supported spouse is able to maintain as close to the marital standard of living as possible for a reasonable time and until that spouse can become self-supporting.
If spousal support is an issue in your case, call GYL and we can give you an estimate for the level of support based on the factors that the court will consider.
How is spousal support decided?
California family court judges consider many factors when making a final spousal support determination, including: the marital standard of living; the earning capacity of each party; the requesting party’s need for support; the supporting party’s ability to pay; the age and health condition of each party; the length of marriage; each party’s access to assets, including separate property assets; any equitable consideration related to one party having forgone career opportunities in order to rear children of the marriage.
How long will I have to pay spousal support?
The general rule is that for marriages of short duration (less than 10 years from the date of marriage to the date of separation), spousal support lasts for one half the term of the marriage. For marriages of long duration (over ten years from the date of marriage to the date of separation), the term of spousal support is indefinite and the court will not set a cut-off date during the initial divorce proceeding.
There are many ways to negotiate settlement when it comes to spousal support. Often, parties will agree to a lump sum buyout in exchange for a termination of spousal support obligation. At GYL, we will often negotiate a step-down approach to settling spousal support disputes.
Generally (but not always), temporary spousal support is less than the permanent spousal support order made upon either settlement or trial. The reason for this is that when considering permanent spousal support, the family court looks at many more factors, including but not limited to the division of property and debts and each party’s prospective earning potential.
Can spousal support be modified?
Spousal support can be modified any time there is a change in the circumstances of the parties. For marriages of long duration, wherein a cut-off date for permanent spousal support is not negotiated, the supporting spouse has the affirmative obligation to seek a downward modification or a termination in support. If he/she does not obtain an order for a reduction or termination in support, the previous order stands. Spousal support does not automatically change when the supporting spouse loses his/her job, retires, or receives a pay cut.
As a supporting spouse, it is always wise to revisit the financial circumstances of the parties every year by requesting that the supporting spouse submit an Income and Expense Declaration.
PROPERTY DIVISION FAQ
How do California Divorce Courts divide property?
California adheres to what is known as the “community property law.” Community property states generally treat a marriage much like a business and the spouses as partners in the business. As such, divorce is much like the dissolution of a partnership when it comes to dividing property.
Community property law says that all assets, debts, and accumulations on those assets or liabilities associated with the debts acquired after the date of marriage and prior to the date of separation are considered to be community assets and debts. The exception is gifts and inheritances that are presumed to be the separate property of the spouse receiving the gift or inheritance.
Where California divorces get complicated is when separate property is “comingled” or mixed with community property or vice versa.
How do California Courts divide debts?
The general rule is that all debts acquired after marriage and prior to the date of separation are community debts to be divided equally between the spouses. However, some exceptions apply with respect to characterization of a debt acquired during the marriage, as well as the allocation of true community debt upon dissolution. It is possible to have more than one half of the community debt ordered against one spouse.
Are my spouse’s student loans considered community debt?
Generally, student loan debt is considered to be the separate debt of the borrowing spouse. However, depending on whether the student loan proceeds were used to acquire property or to help support the family, these debts may be allocated and treated as community debt.
What do we do if our house is upside down?
This is a common problem in today’s market. Years ago, divorce lawyers were helping their clients divide the equity in the community residence. Now, it seems that every client who walks in the door has a house that is worth less than they owe. To make matters worse often there is a hefty second mortgage attached. In a case like this, the house is considered to be a community liability rather than a community asset. You have two choices: one party can keep the house and assume the debt along with it, or the parties can either attempt a short sale or allow the house to go into foreclosure. The caveat in a situation wherein one party decides to keep the house is that the party keeping the house is going to have to find a way to refinance in order to remove the other spouse from the loans associated with the house. This is increasingly difficult with a house that has no value.
At GYL, we have helped many clients come up with some creative solutions when it comes to dealing with an underwater community residence. Sometimes it takes some creativity and willingness on both sides to sacrifice and bend a bit, but the problem of the upside-down house is not unsolvable.
Is a gift between a husband and wife considered community property?
This is an interesting and evolving area of family law practice in California. The short answer is that it depends. Current case law in California says that whether a gift between spouses is considered to be a “transmutation” of that property from community property to separate property depends on the value of the gift compared to the overall value of the marital estate.
If the gift is substantial compared to the value of the estate, then the gift will probably be deemed community property. Conversely, if the gift is relatively inconsequential when compared to the value of the marital estate then the court will probably find that the gift is the separate property of the giftee.
Who gets to keep the engagement ring upon divorce?
An engagement ring is a gift given in contemplation of marriage and considered to be a conditional gift. The condition is satisfied upon the marriage taking place. If the wedding is canceled and the engagement terminated, the one “calling it off” is the loser. In other words, the woman gets to keep the ring if the man calls off the engagement. Once the parties are married, the engagement ring is just like any other piece of property brought into the marriage—it is the separate property of the party bringing it into the marriage (generally the wife).
We realize that you likely have many more questions in addition to the ones listed above. We would be happy to sit down with you and answer them during a consultation. Contact us online or call (858) 371-5569 to get started.
