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California Divorce or Dissolution FAQs

Experienced attorneys in North County give you answers

As you begin the process of dissolving your marriage or your partnership, 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 received throughout the firm’s nearly 25 years of practice. Contact Alan R. Silverman to discuss your case in detail after reviewing our responses to FAQs about:

Contact our Carlsbad CA attorneys for the answers for filing for dissolution

For answers to your dissolution questions, call Silverman & Silverman, Attorneys at Law at or 760-512-3251 or online to schedule your free initial phone consultation. Sunday appointments are available.

Silverman & Silverman, Attorneys at Law, located in Carlsbad, California, serves clients in and around Carlsbad, San Diego, Oceanside, Vista, Escondido, Del Mar, Solana Beach, Rancho Santa Fe, Encinitas, La Jolla, Mira Mesa, Poway, Rancho Bernardo, San Marcos and all North County San Diego.

High-conflict cases

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. My spouse 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 case for persons with borderline personality disorders. If possible, an assessment of your spouse’s psychopathology should be determined by a qualified forensic psychologist and may be ordered by the court through a custody evaluation or other evaluation.

Appropriate consequence-based psychotherapy, such as Cognitive Behavior Therapy (CBT), is often necessary to treat people with this type of disorder and focuses 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 the therapy reinforces the person’s inaccurate self-perceptions and does not require behavioral change or accountability. If your spouse has an enduring pattern of this type of behavior, it may be due to his or her cognitive distortions and misperceptions. High-conflict parties in litigation need structure and strong consequences to be 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, you may consider requesting sanctions under Family Code section 271. To be successful in your motion you should show your spouses’s pattern of behavior and how your response was reasonable under the circumstances. These sanctions are awarded against a party as a penalty for improper behavior and are not directly tied to a party’s financial need, yet 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 willfully disregarded the court’s order. A motion for contempt is a quasi-criminal procedure requiring proof beyond a reasonable doubt — a difficult legal standard to meet. The remedy for contempt can be up to five days in jail for each offense.  One effective way to cope with a spouse who will not act rationally during the divorce and increases conflict is to obtain court orders for consequences for future noncompliance: a failure to comply with an order may be a change to the custodial schedule or a 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, such as not responding to each email if your spouse sends you an excessive number of emails and does include responding calmly and rationally to your spouse’s unrealistic or dramatic demands.

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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. My spouse 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 shows having adequately addressed his or her substance abuse issues and no longer poses a risk to the child. Supervision can either be through a professional supervisor or by a responsible person who will monitor the visit. You can 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, usually urine testing. In California, the parties can stipulate to hair-follicle testing, which the court will enforce because the testing is by agreement. It is an important factor that the testing is random to ensure that your spouse is complying with the order. Some facilities require the person taking the test call the facility every day so as to learn testing is required 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 issue orders that a person engage in substance-abuse treatment or attend AA/NA. Your attorney can explain the scope of these orders.

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Divorce or dissolution procedures

What is the difference between divorce and legal separation?

The ending of a marriage or domestic partnership, known formally as dissolution of marriage or of domestic partnership, is commonly referred to as divorce. Dissolution in our website refers to the termination of either marriage or partnership. The legal process ends a marriage and allows the parties to marry again;  a legal separation does not end the marriage legally, but, as between the spouses, is the informal end of the marriage. Divorce and legal separation both allow the parties to request orders for child and spousal support, custody and visitation, domestic violence restraining orders and other orders relevant to their circumstances.

Legal separation may preferred for couples wishing to live apart and wanting formal decisions made about money, property and parenting issues. Other reasons for a legal separation instead of a divorce may be due to religious beliefs, maintaining health insurance, and/or preserving the benefits of marriage for those parties who choose to not divorce.

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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 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 because the law cannot compel a party to remain in the marriage nor can the other spouse prevent the divorce, even that spouse believes 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 continue to financially 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.

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What are the grounds for having a marriage annulled?

An annulment may be an option if:

  • One party was a minor at the time of marriage.
  • One party is already married to another spouse.
  • One party was of unsound mind at the time of marriage, unless that party, after coming to reason or regaining a sound mind, chose to remain as a spouse in the marriage.
  • One party relied on the fraudulent representations of the other, unless that defrauded party chose to remain as a spouse after finding out about the fraud.
  • The marriage was procured by force, unless the party whose consent was obtained by force voluntarily cohabited with the other party as husband and wife.
  • One party 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 – all 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.

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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” or same-gender couples. During the time when no same-gender couples married in California and had yet to file for divorce, California 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 ending a domestic partnership is identical to divorce, except for simple and uncontested partnerships in which the partners acquired no real estate, possess little joint property or debt, and have no children or current pregnancies.

When comparing the divorce of same-gender couples with the divorce of heterosexual couples, their may be a between state and federal laws and tax consequences.

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

Either spouse must reside in California for the six months immediately preceding the filing of the dissolution summons and petition, and either spouse must reside in the county in which you are filing for three months.

If neither spouse meets the residency requirement, one spouse may still file for legal separation and later file for dissolution when the conditions of residency are met.

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

The six-month waiting period is calculated as six months after the other party is served with the summons and petition before the dissolution can be final. Please consult with your attorney on the date the waiting period begins.

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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.

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How is the date of separation determined?

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

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Division of property and debts

What is community property?

Any property accumulated during a marriage is presumed to be marital or community property, except for property received as a gift or inheritance. There are other exceptions that your attorney can discuss with you.

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What is separate property?

Separate property is commonly the property that a spouse acquired before marriage, after marriage, or during marriage by gift or inheritance and is not considered part of the marital estate and, therefore, 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.

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How is community property divided in California?

By law, the court must divide the assets and liabilities equally, unless the parties’ written agreement or an oral agreement stated in open court between the spouses, designates a different division between the parties. 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.

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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, which is particularly true in marriages of short duration. There are exceptions to this practice, which should be explained to you by your attorney.

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Spousal support

What factors does the court consider when setting permanent spousal support?

Some 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

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Working with your attorney — agreements and fees

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

Your attorney-client fee agreement for representation by a family-law attorney must 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 and whether the attorney carries malpractice insurance. Contingency fees are not applicable in family law cases.

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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 other spouse’s attorney’s fees as part of the final dissolution order or at any time during the proceedings. Usually the nonworking or supported spouse will seek a temporary order for attorney’s fees early in the divorce proceedings.

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Silverman & Silverman, Attorneys at Law, located in Carlsbad, California, serves clients in and around Carlsbad, San Diego, Oceanside, Vista, Escondido, Del Mar, Solana Beach, Rancho Santa Fe, Encinitas, La Jolla, Mira Mesa, Poway, Rancho Bernardo, San Marcos and all North County San Diego.