California Divorce FAQs
Experienced legal team gives you the answers in Carlsbad, Oceanside & Vista
As you begin the process of divorce, you may have many questions about the laws, procedures and your rights. The experienced lawyers at Silverman & Silverman, Attorneys at Law answer the most frequently asked questions we've received throughout 20 years of practice. Contact our firm to discuss your case in detail after reviewing our responses to FAQs about:
- High-conflict cases
- Divorce procedures
- Division of property and debts
- Spousal support
- Working with your attorney — agreements and fees
Contact our Carlsbad attorneys to get the answers you need about filing for divorce
To get answers to your divorce questions, call Silverman & Silverman, Attorneys at Law at 760.512.3251 or 415.906.4142 or contact us online to schedule your free initial phone consultation. Sunday appointments are available.
From our law office in Carlsbad, we serve clients in Oceanside, La Jolla, Vista, Encinitas, Escondido, Rancho Santa Fe and throughout the San Diego area.
My spouse refuses to cooperate in the divorce process, makes false allegations about me, escalates the adversarial nature of our case, and refuses any reasonable compromise or settlement. He or she is draining the community funds and there is no end in sight. What should I do? How can I protect myself?
Your spouse may have a personality disorder that prevents him or her from rationally participating in the litigation and settlement process. He or she may be responding to you based on irrational needs such as a fear of abandonment as is often the cases in persons with borderline personality disorders. If possible, an assessment of your spouse’s psychopathology should be determined by a qualified forensic psychologist may be ordered by the court through a custody evaluation or other evaluation.
Appropriate consequence-based psychotherapy, such as Dialectic Behavior Therapy or Cognitive Behavior Therapy, is often necessary to treat people with this type of disorder. These types of therapies focus on changing thoughts and behavior and acknowledging the effect one’s behavior has on others. Often, insight-oriented therapy is ineffective with people experiencing personality disorders because it reinforces the person’s inaccurate self-perceptions and does not require behavioral change of accountability.
If your spouse has an enduring pattern of this type of behavior, it may be due to their cognitive distortions and misperceptions. High-conflict parties in litigation need structure and strong consequences which are consistently applied.
Mediation of high-conflict cases may be ineffective if the mediator does not have sufficient experience with this type of personality or cannot provide sufficient structure or boundaries to the parties.
If your spouse is unreasonably increasing the cost of litigation or frustrates you, consider requesting sanctions under Family Code section 271. To be successful in your motion you should show a pattern of this behavior and how your response was reasonable under the circumstances. These types of sanctions are awarded as a penalty for improper behavior. They are not directly tied to a party’s financial need except that the court will usually not make a burdensome financial award against a party with limited assets or income.
Holding your spouse in contempt for failure to comply with child or spousal support orders is effective, particularly if the person has the funds to pay and has willfully disregarded the court’s order. A motion for contempt is a quasi-criminal procedure that requires proof beyond a reasonable doubt which is a difficult legal standard to meet. The remedy for contempt can be up to five days in jail for each offense. It may not be realistic to seek contempt for violations of custody orders unless there are significant violations because judges may not want to have a parent incarcerated.
One effective way to cope with a spouse who will not act rationally during the divorce and increases conflict is to obtain court orders that have consequences for future failure non-compliance. The consequences for the failure to comply with an order may be a change of the custodial schedule or financial penalty.
In high-conflict cases, it is important for your attorney to set reasonable boundaries with your spouse or his or her attorney and stick to those boundaries. This may mean not responding to each email if your spouse sends you an excessive number of emails and responding calmly and rationally to your spouse’s unrealistic or dramatic demands.
I am going through a divorce and am concerned that my spouse will use illegal drugs, abuse alcohol or prescribed drugs in excess during his custodial time with our child. He has a history of drug abuse. What can I do to protect the child?
If you can provide the court current evidence that your child is at risk of detriment due to your spouse’s substance abuse, you can seek an order limiting your spouse’s custodial time with the child to supervised visitation until your spouse has shown that he or she has adequately addressed his or her substance abuse issues and no longer poses a risk to the child. The supervision can either be through a professional supervisor or by a responsible person who will monitor the visit. You can also ask that your spouse pay for the supervision. Except in extreme cases, the courts will not make an order for no contact between a parent and child.
The court can require that your spouse undergo substance abuse testing. This is usually by urine testing. In California, the parties can stipulate to hair follicle testing but the court cannot enforce this form of testing unless there is an agreement. You should make sure that the tests are random to assure that your spouse is complying with the order. Some facilities require the person taking the test call the facility every day and determine if they will be required to test on that day. There are issues with the validity of some urine tests such as the ETG alcohol test. Speak with your attorney about these issues.
The Court can make orders that a person engage in substance abuse treatment or attend AA/NA. Your attorney can explain the scope of these orders.
What is the difference between divorce and legal separation?
The ending of a marriage or domestic partnership, commonly referred to as a divorce, is a known in legal terms as "dissolution of marriage" or "dissolution of domestic partnership." This process ends a marriage and allows the parties to marry again, whereas a legal separation does not. Divorce and legal separation both allow the parties to request orders for child and spousal support, custody and visitation, as well as domestic violence restraining orders and other orders relevant to their circumstances.
Legal separation may be preferable for couples wishing to live apart and wanting formal decisions made about money, property and parenting issues. Other reasons for obtaining a legal separation instead of a divorce include religious beliefs, and maintaining health insurance and other benefits.
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 led 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 may require the sane spouse to support the insane spouse. You should contact your attorney for a full interpretation of these provisions if you believe incurable insanity may apply to your situation.
What are the grounds for having a marriage annulled?
An annulment may be an option if:
- One of the parties was a minor at the time of marriage.
- There was a prior existing marriage.
- One of the parties was of unsound mind, unless the party of unsound mind chose to remain as husband and wife after coming to reason.
- 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.
- 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.
- 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 of fraud. On the other hand, misrepresentations about the desire to have children or fertility, or presenting proof that a party married only for immigration purposes have been found to be sufficient to support a claim of fraud.
How is same-sex marriage dissolved?
There is no such legal concept as "same-sex marriage." This is simply the common term. Chief Justice Ronald M. George clarified that the correct 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 laws in 1999. In the vast majority of cases, this process is identical to divorce, except for simple and uncontested partnerships in which the partners have acquired no real estate, possess little joint property or debt, and have no children or current pregnancies.
When comparing the divorce of same-sex couples with the divorce of heterosexual couples, the greatest difference is the clash between state and federal laws. The federal government does not recognize the marriage between same-sex couples or the divorce of same-sex couples, and it imposes certain financial penalties on same-sex couples that it does not on heterosexual couples. 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 heterosexual couples from early withdrawal penalties. In addition, while court-ordered spousal support payments may be deducted from federal income taxes, this is not the case for same-sex couples.
How long do I have to live in California before I can file a divorce action?
Either you or your spouse must be a resident of California for the six months immediately preceding the filing of the divorce petition, and one of you must be a resident of the county in which you are filing for three months.
If neither of the spouses meets the residency requirement, one of them may still file for legal separation and later file for divorce when the conditions of residency have been met.
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 the waiting period begins.
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.
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 be 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 about this issue.
What is community property?
Almost any property accumulated during a marriage is community property, except for property received as a gift or inheritance. There are other exceptions that your attorney can discuss with you.
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. Note that separate property may be changed or "transmuted" into community property during a marriage. Your attorney can explain this in more detail.
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 to one spouse but balance it out by ordering that spouse to pay a $500 credit card bill. The court can also order the couple to divide proceeds acquired from the sale of their property.
I attended college throughout the course of my two-year marriage. I have accumulated significant student loans during this period of time. Can the court order my spouse to pay back my student loans?
Loans for one spouse's education and training are usually 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.
What factors does the court consider when setting permanent spousal support?
Some of the factors that the court considers when making spousal support decisions include:
- The extent to which the earning capacity of each party is sufficient to meet the marital standard of living
- The supporting party's ability to pay
- The marketable skills of the supported party
- The extent that the supported party's earning capacity is decreased by time devoted to domestic duties
- The needs of each spouse and the minor children
- The duration of the marriage
- The tax consequences to the parties
- The ability of the supported party to be employed
- The goal that the supported party will be self-supporting within a reasonable period of time
What should be included in my attorney-client fee agreement?
Your attorney-client fee agreement should be in writing and include your attorney's hourly rate, the rates for the lawyer’s paralegals and secretaries, and the costs for telephone calls, travel, copies, experts and depositions. The agreement should also state whether the attorney carries malpractice insurance. Contingency fees are usually not applicable in family law cases.
I don't work but my spouse does. Can the court order my spouse to pay my attorney's fees in our divorce action?
The court has the power to order either 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.