PROCEDURE

1. What is the difference between divorce and legal separation?

The ending of a marriage or domestic partnership is a "dissolution of marriage" or "dissolution of domestic partnership" and is commonly referred to as a divorce. It ends a marriage and allows the parties to marry again; a legal separation does not. In both divorce and legal separation cases, the parties may request orders for child and/or spousal support, custody and visitation, domestic violence restraining orders, etc.

Legal separation may be preferable for couples wishing for a legal separation to live apart and to formally decide on money, property, and parenting issues. Reasons include religion, to maintain health insurance for one through the other's plan, or to maintain benefits that require the parties to be married.

2. What are the grounds for divorce in California?

The grounds for divorce are "irreconcilable differences" and "incurable insanity."

Irreconcilable differences are sincere, permanent differences between the spouses that have lead to a breakdown in the marriage. To put it simply: it takes two to marry and only one to divorce. Only one spouse needs to state that irreconcilable differences exist. The other spouse cannot prevent the divorce even if he or she feels the marriage can be saved. In California, divorces are "no-fault." No one spouse can be financially punished for the breakdown of the marriage.

Incurable insanity is rarely invoked because it is difficult to prove and because the sane spouse may be obligated to support the insane spouse. You should contact your attorney for a full interpretation of these provisions.

3. What are the grounds for having a marriage annulled?

1. One of the parties was a minor at the time of marriage.
2. There was a prior existing marriage.
3. One of the parties was of unsound mind unless the party of unsound mind after coming to reason chose to remain as husband and wife. .
4. One of the parties relied upon the fraudulent representations of the other unless the defrauded party chose to remain as husband and wife after finding out about the fraud.
5. The marriage was procured by force unless the party whose consent was obtained by force voluntarily cohabitated with the other party as husband and wife.
6. One of the parties was physically incapable of entering into marriage and that incapacity is incurable.
   

Clients often have misconceptions about annulments. Broken promises about fidelity, lies about financial or social status or even the hiding of a criminal record have been found to be insufficient grounds to support a claim for fraud. On the other hand, misrepresentations about the desire to have children, sterility or proof that a party was marrying only for immigration purposes have been found to be sufficient to support a claim for fraud.

4. How is same-sex marriage dissolved?

There is no such concept as "same-sex marriage". Rather, this is the common term. Chief Justice Ronald M. George clarified that the term is "marriage between same-sex couples." While none of the same-sex couples recently married in California have yet to file for divorce, California has offered domestic partners the right to dissolve their partnerships since the legislature first enacted domestic partnership legislation in 1999. In the vast majority of cases, this process is identical to that of divorce. The sole exceptions are partnerships that are simple and uncontested, in which they have acquired no real estate, little joint property or debt, and no children or current pregnancies.

The greatest difference arises when comparing the divorce of same-sex couples to divorce of heterosexual couples: the clash between state and federal laws. The federal government does not recognize the marriage between same-sex couples, nor the divorce of same-sex couples and imposes certain financial penalties on those couples not imposed on straight couples. There is one major exception: for example, if a judge orders a same-sex couple to split a pension, that couple will not benefit from a federal law that shields straight couples from early withdrawal penalties. In addition, while court-ordered spousal support payments may be deducted from federal income taxes, the same does not apply to the divorces of same-sex couples.

5. How long do I have to live in California before I can file a divorce action?

To file for divorce either you or your spouse must be a resident of California for the six months immediately preceding the filing of the petition and be a resident of the county in which you are filing for three months.

If one or either spouse does not meet the residency requirement, either spouse may still file for legal separation, and later file for divorce when the conditions of residency have been met.

6. In California is there a waiting period before my divorce becomes final?

There is a six-month waiting period before your divorce becomes final. Please consult with your attorney on the date that the waiting period begins.

7. Why is the date of separation important?

Money and possessions acquired after the date of separation are usually a spouse's separate property. The date of separation is important in determining each spouse's property rights.

8. How is the date of separation determined?

Often the date that a spouse moves out of the house determines the date of separation. However, a married couple can be legally separated and still living together if one spouse has informed the other that the marriage is over. The actual date of separation depends on the unique facts of your case.  An attorney's advice should be sought on this issue.

DIVISION OF PROPERTY AND DEBTS

9. What is community property?

Almost any property accumulated during a marriage is community property except property received as a gift or inheritance. There are other exceptions, which can be explained to you by your attorney.

10. What is separate property?

Separate property is most property that a spouse acquired before marriage, after marriage, or during marriage by gift or inheritance. It is not considered part of the marital estate, and therefore is not divided and shared with the other spouse. Please note that separate property may be changed or "transmuted" into community property during marriage. Ask your attorney to explain this to you.

11. How is community property divided in California?

Unless there is a written agreement (or an oral agreement made in court) between the spouses, the court will usually make an equal division of all community property assets and debts. An equal division need not give exactly the same property to each spouse. For example, the court can give a couch worth $500.00 to one spouse but balance it out by ordering that spouse to pay a $500.00 credit card bill. The court can also order the division of the proceeds as gained from the the sale of property sold and money received from the sale divided.

12. I attended college throughout the course of my two-year marriage. I have accumulated significant student loans during this period of time. Will the court order my spouse be required to pay back my student loans?

Loans for one spouse's education and training will usually be considered the separate obligation of the spouse who benefited from the education. This is particularly true in marriages of short duration. There are exceptions to this practice, which should be explained to you by your attorney.

CUSTODY, VISITATION AND CHILD SUPPORT

13. What is the definition of legal custody?

Legal custody is the right to make decisions on parenting issues such as medical care, education and religious training. Legal custody may be joint or sole. If the parents have been awarded joint custody, decisions must be shared unless otherwise ordered by the Court.

14. What is the definition of physical custody?

Physical custody refers to where a child lives and who has responsibility for supervising the child.

When an award of joint physical custody is made, the child will live substantial amounts of time with each parent. California does not currently establish a preference or a presumption for or against joint custody arrangements.

When sole physical custody is awarded to one parent the other parent is usually awarded visitation rights, unless it would not be in the "best interests of the child." When the visiting parent could place the child's safety or well-being at risk, the judge may order supervised visits.

A judge may award sole physical custody to one parent, and joint legal custody to both. This means that the child will spend most of his or her time with one parent, and both parents will share in making important decisions about the child's life.

15. Does the mother always win sole physical and legal custody?

California law prohibits preference to a parent because of that parent's gender. Rather, if the parents cannot agree, the court decides based on which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent. Accordingly, there is no presumption in favor of granting custody to the mother.

16. What rights do nonbiological parents have to custody or visitation of children born of same-sex relationships?

In California, a child can have two parents of the same gender. A child born of a lawfully recognized union will be treated as the child of each member, regardless of the gender. Second-parent adoption is another way to guarantee that the parent-child relationship is recognized. Parents in these circumstances have the same rights to seek custody and visitation as their heterosexual counterparts.

Fortunately, status as a legal parent does not depend entirely on the marital or domestic-partner status of the parents. In 2005, the Supreme Court concluded that if a same-sex couple agrees to raise children together, but later end the relationship, both may be considered legal parents. This means that a nonbiological parent may request custody or visitation of his or her child without first having formalized the relationship.

17. What is the role of mediation in a custody/visitation dispute in California?

In mediation, a neutral third party helps the disputing parties settle their issues without lawyers present. The purpose of mediation is to 1) facilitate communication between the parties, 2) develop an agreement that will assure the child of close and continuing contact with both parents that is in the child's best interests, and 3) settle the parties' visitation rights.

Under California law custody and/or visitation issues between the parties must be set for mediation before they will be heard by the court. Mandatory mediation is also required whenever a grandparent or stepparent has applied for visitation. The court will usually have a custody/visitation mediator available to assist the parties in resolving their differences. The parties will not usually be charged if the mediation is conducted through the court. (Each county sets its own rules about mediation available through its Family Court Services).

Private mediation is also an effective way of resolving all of the issues in a case without the necessity of court intervention. Approximately ninety percent of privately mediated cases are settled and the cost of private mediation is about one-half of the cost of litigation.

18. What is the role of collaborative law in a custody/visitation dispute in California?

Collaborative law is a relatively new model of dispute resolution. Unlike mediation, each party retains an attorney whose sole role is to aid the parties in a negotiation and settling of the issues. In the beginning, both parties sign an agreement to provide information and documents. If either party decides to take the other to court, their collaborative law attorneys cannot represent them in court, and each party must retain a litigation attorney. The benefit of collaborative law resolution is that each party is assisted and advised by counsel at all times and is required to have legal counsel to participate.

19. My circumstances have changed since my divorce was final. My spouse has been interfering with my visitation of the children. What can I do about this?

The court usually retains jurisdiction over the child support, custody and visitation aspects of the divorce cases even after the divorce is final. Either spouse may modify the orders at a later date by bringing a motion before the court showing changed circumstances. The court may also have retained jurisdiction over spousal support issues.

20. How does the court decide what is in the best interests of the children when making custody decisions?

The primary considerations are the health, safety and welfare of the child. To determine which parent is most fit to ensure this, the court will hear evidence supplied by the parties and may refer the case for a custody evaluation. If referred, a psychologist, family therapist or child development specialist will interview all persons and professionals involved in the child's life and report his/her findings to the court. The evaluator may meet with parties together and/or separately to be able to evaluate their interaction and will assess the relationship of each parent to the child. The evaluator may order psychological assessment if it is believed necessary. The court will typically give great weight to the evaluator's findings. The court may order the evaluator's fees split by the parties or apportion the fees according to each party's ability to pay.

Resources and services are available to provide safe environments or havens for the child(ren) to visit with the other parent.  

21. My 9-year-old child wants to live with me but currently lives with my spouse. Will the court consider his wishes in determining primary physical custody?

The court must "consider" and give "due weight" to the wishes of children who are old enough and have the maturity to form an intelligent preference as to custody. There is no specific age or criteria of maturity set forth by law. Usually the court will be more receptive to a child as she approaches her teen years but some courts will listen to a child as young as 7 or 8 years old and, depending on the facts, may refuse to consider the wishes of a 14-year-old child.

22. I can't afford both my car payment and my child support payment. What will the court's position be on this dilemma?

The court will probably order you to support your child first and make your car payment second. There may be certain circumstances in which your car is considered a necessity but these are uncommon. Consult your attorney.

23. What are the rights of a grandparent to visit her grandchildren? How may a grandparent gain custody of her grandchildren?

The court may grant reasonable visitation or custody to grandparents if it is determined to be in the best interests of the child. The grandparent seeking visitation must give notice to both parents and have their claim joined to the action. Your attorney will be able to provide you with information on how to accomplish this. Usually grandparent visitation cannot be ordered to the extent it conflicts with rights of custody or visitation of the birth parents.

24. My spouse filed for divorce. I was granted sole legal and physical custody of our child. I am interested in taking our child and moving out of the area. Can I do this?

In the past, the parent with physical custody of the child had the presumptive right to change the child's residence.

Now if the noncustodial parent can prove that the move would cause significant detriment to the child, the court must grant a full trial to decide whether custody should be given to the parent who remains. The court considers:

1. The children's interest in stability and continuity in the custodial arrangement
2. The distance of the move
3. The age of the children and the children's relationship with both parents
4. The relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests
5. The wishes of the children if they are mature enough for such an inquiry to be appropriate
6. The reasons for the proposed move, and the extent to which the parents currently are sharing custody."

25. Shortly after our divorce, my ex-wife married a wealthy man. Can his assets be considered in the calculation of child support?

The income of a new spouse is not considered in the child support formula except in extraordinary cases in which the exclusion of the income would lead to hardship for the child. However, the new spouse's income does have some effect on the taxable amount of the parties' gross monthly income.

26. My ex-spouse has remarried and now has another family to support. Can this affect the child support I am required to receive?

If the parent now has children from another relationship to support, the amount of your child's support may be decreased.

SPOUSAL SUPPORT

27. What factors will the court consider when setting the permanent spousal support?

The following are some of the factors that the court will consider:

1. The extent to which the earning capacity of each party is sufficient to meet the marital standard of living.
2. The supporting party's ability to pay.
3. The marketable skills of the supporting party.
4. The extent that the supporting party's earning capacity is decreased by time devoted to domestic duties
5. The needs of each party including the minor children
6. The duration of the marriage
7. The tax consequences to the parties
8. The ability of the supported party to be employed.
9. The goal that the supported party will be self supporting within a reasonable period of time.

WORKING WITH YOUR ATTORNEY - AGREEMENTS AND FEES

28. What should be included in my attorney-client fee agreement?

The fee agreement should be in writing, with the attorney's hourly rate as well as the rate for paralegals, secretaries, telephone calls, travel, copying, expert and deposition costs. The agreement should state whether the attorney carries malpractice insurance. Contingency fees are usually not proper in family law cases.

29. I don't work but my spouse does. Will the court order him to pay my attorney's fees in our divorce action?

The court has the power to order any party to pay the attorney's fees as part of the final dissolution order or at any time during the proceedings. Usually the non-working spouse will seek a temporary order for attorney's fees early in the divorce proceedings.