BAY AREA DIVORCE LAWYERS | SILVA & ASSOCIATES
Understanding the California Family Law Process: Our Bay Area Divorce Lawyers, here at Silva & Associates, put together this list of the most frequently asked questions when considering a divorce in California. The Complicated Divorce also known as a complex divorce in the Bay Area, requires a Divorce Lawyer with more experience than might usually be needed for a simple, amicable divorce. The Complex Divorce typically involves reserved stock units (RSUs), privately held companies, mental health issues or addiction, international assets, income or custody conflicts, or your case has just been going on for an extraordinarily long time.
California is a community property state, meaning that both parties have an interest in property that existed during the marriage. Determining community interest in any asset is a complicated process. If you own a small business, have unvested RSUs or stock options, have multiple properties, or simply need to determine the other party’s income, these issues can complicate a divorce. You need a Divorce Lawyer who has the experience and the depth of knowledge to identify potential problems and help you avoid them. Here at Silva & Associates, we have a team of highly skilled Bay Area Divorce Lawyers with over a combined 50 years of experience to help you with your complex divorce.
How long will a divorce take?
Every divorce is different and can take anywhere from 6 months to 2 years or more. A case is initiated when a divorce complaint, called a Petition for Dissolution of Marriage, is filed with the court. This document must be served on your spouse or domestic partner, who then has 30 days to file a response. Under California law, a divorce can’t be final until at least 6 months and one day after the spouse or domestic partner receives the Petition.
What are the steps in a divorce case?
Filing a Petition is the first step in a divorce case. It is like opening the door to the court. If the other party files a Response, they open the door to the court, as well. This is called a contested action. If the other party does not file a Response, the door to the court, for the most part, is closed. This is called a default.
The next step in a divorce is the exchange of financial information. Both parties are required to exchange income information and to identify any bank accounts, retirement accounts, business opportunities, and other assets and debts. Some parties are more open than others. When one party does not want to fully disclose what assets they have, or how much they are worth, your Divorce Lawyer will help you figure out exactly what they are hiding. This includes routinely bringing in experts to find assets and determine their value to ensure you know what is at stake in the divorce so you can make an informed decision.
Sometimes, parties do not want to disclose what their earnings are, or artificially decrease their earnings to keep the other spouse from receiving the support they are entitled to. This is not uncommon, and it is not acceptable. Your Divorce Attorney won’t let the other party intimidate or bully you into walking away with less than what you are entitled to.
A divorce case ends when a Judgment is filed, though some issues may continue for many years after the Judgment is entered. A Judgment can either be reached through an agreement of the parties, often after a settlement conference at the court, or through trial. You can resolve all issues at any time if both parties agree, but if a trial is necessary, often a divorce case can last a year or longer to get a decision from the court.
How will the property be divided?
California is a community property state, meaning that both parties have an interest in property that was acquired or that existed during the marriage. Before the property is divided it must be identified, valued, and classified as marital or separate. How the property gets divided depends on the duration of the marriage, when the property was acquired, how the property was purchased, tax consequences, and any separate agreements the parties may have made, like a pre-nuptial or pre-marital agreement.
How to Prepare for Your First Meeting WITH OUR BAY AREA DIVORCE LAWYERS
Our Family Law Attorneys will need different information for different cases. Below is a simple outline for what you should bring to make the first meeting with our Bay Area Divorce Lawyers as productive as possible.
- Make a list of specific questions you want to be answered or issues that are most troubling to you. What most worries you about the divorce?
- Any documents that have been filed with the court. However, if the case has been going on for a while, we don’t need the last few years of documents, only the most recent documents or any pending actions.
- A general idea of what assets you own. Do you own a business? Do you have stock options? Do you have multiple bank accounts, credit cards or investment accounts? Do you have a retirement, 401k or pension plan? Because different assets require different approaches, it is helpful to know what assets you have.
- A general idea of your income, and the other party’s income. The more specific information you can provide, the better we can advise you, but we don’t need paycheck stubs or tax returns if you do not have these available to you at the first meeting. If you are retired, or are retiring soon, information about your retirement funds will be helpful. This is important to determining support issues.
California Divorce Law FAQs (Frequently asked Questions)
You don’t need an attorney to get divorced in California, but it’s advisable to have one. Having a lawyer can give you a sense of security that you won’t be taken advantage of. Getting a divorce involves many factors other than just appearing in court. There are financial matters, property division, retirement accounts and other holdings, and sometimes children that must be addressed, so it’s always recommended to have a licensed, professional lawyer representing your interests in court.
If you have considerable assets that you’re seeking to protect as you head into a marriage, consider a prenuptial agreement, or “prenup.” Although once looked upon negatively, pre-nuptial agreements have become commonplace in today’s world. A prenuptial agreement is a written contract entered into by two people prior to marriage or a civil union that enables them to determine what happens when their marriage eventually ends, either by death or divorce. The agreement can address a few issues – like child support, spousal support, retirement accounts, property ownership and savings – or it can specifically address only a few important items.
You don’t need a prenuptial agreement, but if you are entering a marriage with significant assets that you want to protect, it is highly advisable. Having a prenuptial agreement can keep the court from deciding what happens to your property obtained during your marriage. You can also protect yourself against your spouse’s debts with a prenuptial agreement. Without a prenuptial agreement, creditors can go after your marital property even if only one spouse is the debtor. A prenup helps limit your debt liability.
In California, it depends. The state’s Uniform Premarital Agreement Act governs prenuptial agreements and will allow a spouse to waive their rights to spousal support in a few instances. It is the duty of the court to determine if the provision isn’t unconscionable.
It depends on your agreement. If you are considering a prenuptial agreement prior to your marriage, it’s best to consult with an attorney. Having an attorney review and make recommendations based on their experience can ensure that you receive a fair shake in court. If you and your spouse or domestic partner own significant assets, it’s highly advisable to have an attorney representing your interests.
Yes. In most cases, you can modify an existing prenuptial agreement at any time. However, a prenuptial agreement must be signed by both you and your former spouse or domestic partner, so both parties will need to sign off on any changes made.
Spousal support in California is presumptively 40 percent of his or her net monthly income, reduced by one-half of the receive spouse or domestic partner’s net monthly income. Spousal support for short-term marriages less than 10 year will last for half the length of the marriage, as defined as the time between the date of marriage and the date of separation. Longer-term marriages are different and can be awarded for an indefinite period.
There are some general guidelines for spousal support in California. The paying spouse or domestic partner’s support is 40 percent of their net monthly income, presumptively, reduced by one-half of the receiving spouse or domestic partner’s net monthly income. For shorter marriages less than 10 years, support should last for half the length of the marriage from the date of marriage to the date of separation. Marriages that were for a longer time frame are handled differently and can be assigned for an indefinite amount of time.
There are a few things taken into consideration when determining child support in California, like the income of each parent, how much time each parent spends with the child(ren), and if there are any tax deductions available for either parent. Under state law, the court will use “net disposable income” figures from each parent to determine the amount. Net disposable income is the parent’s net income after state and federal taxes, Social Security, health care and fixed union fees are calculated. If child support is involved in the divorce, then spousal support is calculated after the child support is determined.
How much you pay monthly for child support will depend on a few factors: Each parent’s income, the amount of time each parent spends with the child(ren), and any tax deductions that might be available. The court uses net disposable income to calculate how much is owed. Net disposable income is the net income after taxes (state and federal), Social Security deductions, health care costs and fixed union fees. If child support is needed, spousal support is calculated after the amount for child support is determined.
Having an attorney can help you ensure all assets are identified. Community property is defined as all property, real or personal, wherever situated, acquired by a married person during the marriage while living in the state of California. Separate property is any property acquired separately before the marriage or after separation. In California, community property is divided equally, while each spouse keeps his or her separate property. Experienced divorce attorneys possess a variety of skills to help uncover hidden assets.
Each divorce is unique. Some divorces are straightforward and move along smoothly. Others take considerably more time. It all depends on specific issues like property, finances and children, and how long it takes to come to an agreement with your former spouse or domestic partner. If you can work with your former partner on some things, it can go quickly. More contentious divorces can drag on for years. Under California law, you must wait 6 months from the time the papers are filed until your divorce is finalized.