The answers to the Frequently Asked Questions (FAQs) provided in this section are intended to be general in nature and educational, they are not intended to create an attorney-client relationship or to replace specific legal advice.
A person does not have to obtain a “legal separation” before filing a divorce. It is another type of action, separate from a dissolution. A legal separation action resembles an action for divorce except that the parties are not free to remarry. An advantage of filing a legal separation action is that, unlike a dissolution, there are no residency requirements. We do not recommend a legal separation in most circumstances, though, because it costs more to terminate the marriage later if you do not reconcile.
A legal separation is not to be confused with the ‘date of separation’ which is an important fact established in every dissolution as that date has a bearing on financial issues.
Much of what happens in a divorce is governed by court order(s). A modification is a change of an existing order. A party who wants to modify a court order generally must follow the same rules as in the initial action and file a motion with the court asking for the change. In general, the party bringing the motion has the burden of demonstrating a change in circumstances that would justify the requested modification.
Many people believe that only the wealthy and the powerful benefit from premarital agreements but such is not the case. Individuals who are just starting out in life may benefit by entering into a premarital agreement. Particularly when one party comes to the relationship with a home, other property, a business, other assets, and/or children, many individuals could benefit from a premarital agreement.
A premarital agreement is a very important legal document. You need to have the opportunity to carefully read its contents and consult with an attorney who specializes in Family Law to find out whether the premarital agreement is right for you. It is important that you consult with an independent attorney not the same attorney who drafted the premarital agreement. It is a very serious matter. You should not sign the agreement out of fear that the wedding will be postponed, because you feel you have to, or on a whim.
Premarital agreements, more commonly known as prenuptial agreements, are contracts that the parties enter into prior to marriage that dictate the distribution of property in the event of a dissolution.
Premarital agreements can be powerful tool to regulate the financial interests of the parties. The parties can override California’s community property presumption and keep some separate property separate. For example, in California, wages and earnings acquired after the date of marriage (and before the date of separation) are community property, however, the parties can stipulate in a premarital agreement that all wages and earnings shall be separate property. A premarital agreement may also be helpful where one party owns a house prior to the marriage and wants to retain its separate property character even though this is where the couple choose to live after they get married. While the house comes into the marriage as the separate property of the person who bought it, the community would normally earn an interest in the house by virtue of making the mortgage payments with the couple’s earnings. In order to avoid this outcome, the parties can stipulate in a premarital agreement that the community will not earn an interest in the house as a result of community earnings contributing to the mortgage payments, repairs and improvements.
It should be noted, however, that although parties may want to address support issues in a premarital agreement, a waiver of child support is not enforceable.
Divorce mediation is a non-adversarial means to resolve issues raised in a divorce or legal separation with the aid of a skilled 3rd party. We assist you as an advocate in this process making sure your rights are protected. Issues including property division, spousal and child support, child custody and visitation are all good subjects to tackle in mediation. The parties meet jointly with a mediator to learn of their rights and responsibilities to themselves and their spouse. The contemplated result is a written agreement encompassing a resolution of all of the issues brought before the mediator or all of the issues of the marriage. Parties who are in the midst of contested traditional divorce proceedings can try mediation at any stage of the separation and divorce process – even couples who have previously divorced through the court system and wish to resolve newly arisen problems.
If you have formally become a Domestic Partner by registering with the California Secretary of State, you must now file for divorce to end that relationship. The process is the same as for a traditional marriage: the Superior Court must approve of the legal termination of the relationship. Neither partner may register with another person until termination of the partnership. Like a marriage, the process of ending the Domestic Partnership takes at least six months.
No. California is a “no-fault’ state, the first “no-fault” state in the country. Any person can file to end a marriage or domestic partnership without having to explain why (other than simply stating “irreconcilable differences”). Fault or “bad behavior” by the other party are usually of no legal benefit to the aggrieved party. There is no “guilty”, “non-guilty”, or “innocent” party.
Once a spouse files for divorce, the other party cannot stop the process unilaterally by legal means. Indeed, you need to file a response within 30 days of service or your rights may be prejudiced by a default. The parties can, however, reconcile and terminate the divorce action. If one party does not want the divorce to go through and intends to be difficult in negotiations by not proceeding in good faith, the judge will be forced to make decisions and that parties conduct will reflect poorly on them.
Under California law, at minimum six months must have passed between the time of service of the Summons and Petition and the judgment for divorce being granted. Few divorces wind up taking just six months, even if a couple is working together and in agreement, and a complicated, high asset, high conflict or highly contested divorce can take significantly longer. On the other hand, if you have an agreement in principle, the matter can be disposed of quickly and easily by doing a default judgment with a settlement agreement.
California itself does not recognize common-law marriages. Only a few states still do. In the rare case where the parties resided in another state prior to moving to California and the relationship satisfies the requirements for a common-law marriage in that state, a California court will give it recognition.
While California does not recognize common-law marriage, the state’s courts have found that non-married partners may nevertheless contract with one another regarding their earnings and property rights. These non-marital contracts, express or implied, are commonly referred to as “Marvin Agreements.”
Parties should make a dedicated effort to reach a custody agreement outside of litigation because custody litigation is emotionally challenging and expensive. If the parties are unable to reach an agreement, a court will determine if and how the parents share legal and physical custody. (Legal custody refers to the ways that parents share major decisions regarding the health, safety, and welfare of their children. Physical custody refers to the amount of time each parent spends with their children.) California courts will look to the “best interest of the child” when determining the appropriate custody and visitation schedule.
The best interests of the child, not the parents, will govern custody and visitation rights. This places greater priority on ensuring the child’s health, safety, welfare, adjustment, and development, amongst others. The courts examine a number of factors when determining a child’s best interests, including:
- The health, safety, and welfare of the child
- History of abuse (against a child, a parent, cohabitant, or significant other)
- The nature and amount of contact with both parents (including consideration of the capacity of each parent to encourage frequent contact between the child and the other parent)
- History of alcohol or drug abuse by either parent
- The child’s desires, if that child has reached a certain age and maturity (typically 14 years old)
Unless the parents can agree to a schedule before bringing the issue to court, it is up to the court to determine which schedule is most appropriate for the children following the “best interest of the child” standard. The standard is gender-neutral with the focus being on the child’s needs. Most court orders are for joint physical custody, with the children spending significant time with both parents, if that is what is best for the children. In advance, you will mee with a mediator appointed by the court to help our make an agreement. There are many different schedules for parents to share custody. Common court orders are for a child to reside primarily with one parent (for example, if one parent travels extensively for work and the other parent has been a stay-at-home parent attending to a special needs child). The simplest example of a shared schedule is the “week-on/week-off” schedule (not necessarily appropriate for very young children). Some parents establish a “2-2-3” schedule. In this case, parents have the children for two weekdays each week, while Friday through Sunday are alternated between the households every other week.
A number of potential arrangements fall under the standard of joint custody.
Joint legal custody: Both parents share in the decisions affecting their children. Neither parent may make a major decision (e.g., school, medical decisions) without the explicit consent of the other parent. This requires that both parents will have to make parenting decisions in cooperation with one another, requiring them to work together in the best interest of their children.
Joint physical custody: Each parent has significant periods of physical custody of their child. In practice, however, a parent may be awarded joint physical custody even though they may only see their children on weekends. The obvious advantage of joint physical custody is that living in both households allows a child to maintain a strong relationship with both parents.
Primary physical custody: The child lives with one parent the majority of the time. This is generally used in cases where parents are awarded joint physical custody and one parent has slightly more time than the other. Simply stated, one parent is more responsible for caring for any child or children in the family.
In California divorce proceedings, the courts do not consider the reasons behind the couple’s decision to end their marriage. California is a “no-fault” state. Marital infidelity is occasionally relevant to custody and financial disputes, but these situations are the exception rather than the rule. For example, a way in which an affair may impact your divorce is if your spouse has spent marital funds on their affair partner. However, while you may be tempted to go after your spouse for every dollar they spent on their partner, proving dissipation can be time-consuming, expensive, and tedious.
California is a full-disclosure state, meaning that both parties are obligated to make a full and accurate disclosure of all assets and liabilities, no matter when they were acquired, in the dissolution proceeding. Although the penalties for failing to disclose assets are severe, it is a frequent point of contention in high asset and high conflict divorces. If your spouse doesn’t produce certain document during discovery, you can subpoena those documents and they must be provided or there are judicial penalties. The spouse can be deposed under penalty of perjury about all financial issues. There can be later litigation about after-discovered assets that should have been disclosed.
California uses a statewide formula, calculated by a computer program, for determining the amount of child support. This formula is known as “guideline support.” The guideline calculation is based on a number of factors, including:
- The number of children
- How much income the parents earn or can earn
- The amount of time each parent spends with their children
- The tax-filing status of each parent
- Health insurance expenses
- Union dues and mandatory retirement contributions
- Tax deductions that the parties receive via contributions to mortgage payments and 401(k) accounts
California law provides that both parents have a general obligation to support their minor children, both natural and adopted, 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.
A parent may ask the court to increase or decrease child support when there is a change in circumstances. Examples of changes in circumstances include modifications to the custody schedule, a change in employment status, a new form of income, an inheritance, or a change in earnings. Child support is always modifiable. A consultation with an attorney utilizing the computer program that calculates “guideline support” will give you an idea of the possible increase or decrease in the amount of support you are paying or receiving
Child support amounts are based on California Child Support Guidelines and take into account both parents’ incomes and percentage of child share with each parent. A parent’s obligation to pay child support generally ends when the child turns 18 and is not a full-time high school student; if the child marries or registers as a domestic partner; or if the child is emancipated. Support continues through the age of 19 if the child is a full-time student through 19 years of age.
Temporary support is paid while a divorce case is pending and is generally calculated according to a formula. This formula is known as “guideline support.” California courts have a much wider degree of latitude in determining a fair amount and duration for long-term support. Long-term support is based on a number of factors that are set forth in Family Code Section 4320, including the length of the marriage or domestic partnership, the marital standard of living, the financial needs of each person, the earnings of each party (and the earning abilities of the parties), what each person pays or can pay, the age of the individuals, and the assets and debts of each person. Long term support is based on the judges discretion and is often complicated.
Generally speaking, long-term spousal and domestic partner support ends upon the death of the supported spouse, the death of the paying spouse, or the remarriage (or new domestic partner registration) of the supported spouse or domestic partner. Support may also end on a date established by the parties when negotiating their support agreement. Support may also end on a date determined by the court. In marriages and domestic partnerships that are long-term in duration, it is possible that the support may be paid for an indefinite period of time.
This is a common misconception. In California, there is a statutory goal that a supported spouse becomes self-supporting within a reasonable period of time. A reasonable time is generally presumed to be half the length of the marriage if the marriage was of short duration there is a presumption that if a marriage has lasted more than ten years, it is a marriage of long duration. This means that the court will generally try to limit the amount of support to half the length of the marriage if the marriage is relatively short. For example, if the marriage lasted only four years, it is more likely that the court will terminate support after 2 years of payments. If, however, the marriage is closer to the ten-year mark, it is much less likely that the court will automatically terminate support at half the length of the marriage. In the case of marriages that are truly long-term, where the court believes a support award is appropriate, it is possible that the court will order indefinite support.
When the parties are unable to agree, on custody and visitation between themselves and their attorneys, in any family law action, whether it be divorce, legal separation, paternity or any other type of case, the matter must be mediated. The Court provides a qualified mediator to mediate these issues. In most California counties, attorneys are not allowed to be present during the mediation process. It is the mediator’s role to use his or her skills and 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. The mediator may interview the child or children during this process. In many Northern California counties, if an agreement is not reached, 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. No agreement or recommendation is legally effective between the parties unless it has been made an order of the Court.
By filing a Petition to Establish a Parental Relationship with the court, parentage is determined by either parent, mother or father. If there is a question of whether or not true parentage exists between a father and a child, blood tests will be taken of the mother, child and alleged father. Usually blood tests determine whether or not there is a parent-child relationship; however, if it is unclear, there are more sophisticated testing that can be done. Prior to parentage even being determined, the Court may make orders as to custody, visitation and child support. Parents who marry after a child is born can have parentage determined in dissolution proceedings.
In the State of California, the law provides that a parent, whether married or unmarried, shall have frequent and continuing contact with his or her child or children. A court may make a determination of custody and visitation in divorce, legal separation or nullity, paternity cases, and those involving domestic violence. A parent, whether married or unmarried, also has the responsibility to support his or her children. The payment of child support however, is not a condition precedent to enjoying parenting time with your child or children.