Divorce

Overview

Divorce can be one of the most painful processes an individual undergoes during his or her lifetime. Regardless of how amicable or contested, or even whether or not you want the divorce to happen, it is normal to have questions, concerns, and fears. Having a strong advocate in your corner who can help guide you through this difficult process is invaluable. However, we view providing legal advice and counsel as only part of our job. The goal in any dissolution should not be to just reach a judgment. The judgment needs to really work for you and be something that will stand the test of time. This means that your specific circumstances need to be taken into consideration when finalizing your divorce. It does you no good to reach a full agreement only for it to fall apart two years later due to short-sightedness. We work with clients to ensure that they consider things such as tax consequences, the changing needs of their children, and the future impact of remarriage or new relationships before entering into a final judgment.

Dissolutions involve at least four and often times five major issues. All of these issues must be addressed, and each case will have different priorities. In general, divorces require attention to the following:

  • Child custody and visitation
  • Support (both child and spousal)
  • Property
  • Debts
  • Attorney fees/court costs

All divorces require the same paperwork and follow a similar process. Some cases require more paperwork than others, but for the most part, the paperwork can be broken up into three major groups and include some or all of the following documents:

Initial paperwork

  • Petition
  • Summons
  • Response
  • UCCJEA

Financial paperwork

  • Income and Expense Declaration
  • Schedule of Assets and Debts
  • Declaration of Disclosure
  • Declaration Regarding Service of Declaration of Disclosure and Income and Expense Declaration

Final paperwork

  • Judgment/Marital Settlement Agreement
  • Notice of Entry of Judgment
  • Notice of Rights and Responsibility
  • Declaration for Default or Uncontested Dissolution
  • Waiver of Final Declaration of Disclosure

Even though the similar paperwork must be filed in every divorce, because your case is unique, we do not believe in a unilateral approach. Rather, our attorneys learn about your particular case and set of circumstances before devising a strategy that will be in your best interests. Armed with the facts of your case, we are able to craft strong legal arguments to ensure that your rights are protected.

Often times, people begin their divorce trying to prepare all of the documents on their own. Sometimes they become overwhelmed and discouraged while trying to navigate the legal system. Not only can an attorney assist you with the forms, but you also benefit by gaining confidence knowing that you have someone on your side, watching out for your best interests. Doing something right the first time ultimately saves time and money and most importantly, minimizes your stress level during this difficult time.

Additionally, an attorney helps you realize that the focus is not only about the present situation, but also that of the future. In reaching a resolution to your case, we work on crafting a judgment that will pave the way to your new life in the most seamless way possible. Whether that means taking the case to trial and zealously arguing on your behalf or walking you through a mediated divorce, we strive to devise a strategy that takes into account your personal needs, wants, and desires.

Please contact us to discuss your case and to schedule a consultation.

FAQ

Q: How long do I need to live with my significant other in order to have a common law marriage?

A: Common law marriage does not exist here in California, which means that unless you enter into a legal marriage, you do not need a divorce if you end the relationship. For long term relationships where the couple purchases property and co-mingles finances, it is often times a good idea to formalize their financial arrangements, property, and debt into a property agreement. A property agreement can help avoid an expensive, drawn-out battle if the relationship ends and the parties can’t agree on how to divide the assets and debts they’ve acquired. Additionally, taking the time to draft a carefully contemplated contract helps both parties to clarify their respective intentions.

Q: Am I obligated to continue providing health insurance for my soon-to-be-ex if the divorce has been filed?

A: Absolutely. Until the divorce is finalized, you are to maintain the same health insurance coverage for your spouse. Conversely, if you are the person on your spouse’s medical plan, he or she needs to keep you on that plan.

Q: How long does the divorce process take?

A: California law requires a waiting period of at least 6 months and one day after the Petition has been served. Often times though, divorces take much longer than 6 months to resolve.

Q: I’m the one who left my spouse. How is that going to hurt me in the divorce process?

A: It has no impact. California is a no-fault state, which means that it doesn’t matter who files first, who wants the divorce, or why either side wishes to have one.

Q: I just moved to California, but was married out of state. Can I file here?

A: Where you married has no impact on your divorce, but California law requires you to live in the state for at least six months before you can file for divorce. If you do not meet the residency requirement, you may file for a Legal Separation instead and amend your papers after you have lived in California for six months.

Q: My spouse cheated on me, and I want to tell the court that so they will know our divorce is his fault. Can I do that?

A: California is considered a “no fault state,” which means that the Court cannot make orders against the other side solely because the divorce is his or her fault. In general, your judge will not be interested in the reason for your divorce unless it has a direct and negative impact on your children.

Q: We have an agreement for our divorce, and we just want to get that entered. Do we really have to go to court?

A: In many cases, people complete their divorce through paperwork and never appear in front of a judge. At the same time, you need to be very careful that your agreement is drafted very carefully and that it is properly filed so that you are actually legally divorced.

Q: I just want to get this over with, how long will the divorce take?

A: It takes at least 6 months and 1 day to get divorced in California, after your spouse is served with your initial petition and summons for divorce.

Q: My spouse told me that he will take everything and leave me penniless, can he do that?

A: In general, everything acquired during the marriage is community property, which means that all assets (and debts) should be divided equally. This includes retirement plans, bank accounts, vehicles, and the household furnishings. In most cases, people do have assets to divide, and you may also be entitled to spousal support. If you believe your spouse will attempt to take more than his fair share of the assets, you need to be very proactive with filing for divorce and consulting with an attorney to protect your rights.

Q: My spouse told me that courts always side with mom when it comes to the children and that if I divorce her, I will lose our kids, is that true?

A: Definitely not true, please read our blog on common divorce myths at familylawyerblog.org

Q: My spouse told me that if I divorce her, the wife always gets alimony from the husband and I will be paying her. Is that true?

A: No. There are two types of alimony (which is called spousal support in California), “temporary” and “permanent.” These are legal terms, which means that the legal definitions are different from the everyday definition of these words. Temporary support is better described as “pre-divorce judgment support,” meaning support during the divorce proceedings. Permanent support means support after the divorce is finalized. Temporary support is based primarily on each party’s respective income. Permanent support is based on a number of different factors. In either case, there is no automatic award of spousal support.

Q: My spouse told me that if I divorce her, I will be paying her alimony forever. Is that true?

A: Permanent spousal support” does not mean forever and always. It simply means the amount of spousal support ordered after the divorce judgment is entered. The length of time a person needs to pay his or her spouse spousal support depends on a number of factors, including the length of marriage.

Q: My spouse told me that if I divorce him, I will lose my ability to claim spousal support because me asking for a divorce shows I don’t need him. Is this right?

A: Asking for a divorce does not mean you don’t need your spouse. All it means is that you no longer want to be married to him. Spousal support is always an issue that is brought up during divorce proceedings. That does not mean that you will always obtain support, but it does mean that the issue must be addressed.

Q: I heard that if we fight over custody or visitation of our children, we will have to go to mediation. What is that?

A: Mediation, which has now been renamed to “Child Custody Recommending Services,” is required if there is a custody or visitation dispute between parents. This process is intended to be positive and of benefit to parents. Rather than relying on a judge to make a decision regarding your children, the mediation process tries to empower parents to determine what is best for their children.

Q: My spouse cheated on me, can I really end up paying him support?

A: Although spousal support is dependent on many different factors, the reason for the divorce is not one of those factors, unless there has been domestic violence.

Q: I have heard that there are different kinds of child custody. What are they?

A: There are two types of custody, legal and physical. Legal custody relates to which parent has the right to make decisions about issues such as education, school, and medical care.

Physical custody determines which parent has the right to physically have the children with him or her, absent the other parent’s right of visitation.

Custody awards are usually expressed in terms of joint and sole. Joint custody means that both parents share in the rights associated with the particular form of custody, sole custody means one parent has the rights.

Q: I have heard that the courts are really backed up. What if I need help now?

A: It usually takes about two months before you can see a judge, but with the current California budget cuts, it may take up to four months.

There is a process called an “ex parte request” that allows you to receive a Court date much faster if the judge determines that there is an emergency. Usually these emergencies relate to minor children. For example, if one parent moved out of state and took the children with them, a judge is likely to want to hear your case sooner rather than later.

Q: I want to file for divorce, but I am scared of my spouse. What should I do?

A: It is extremely important that you have a plan in place before filing your divorce paperwork for your safety, and the safety of your children. Having an “exit strategy,” including alternate living arrangements, changing your contact information, removing important documents from the home, and securing the best legal representation possible is vital. If you are a victim of domestic violence, you should look into the protection a restraining order offers.

Q: If I have a criminal conviction, can I still get custody of our children?

A: It is possible to still share custody of your children with the other parent even if you have a criminal background, but if you have been convicted of domestic violence or are a registered sex offender, it will be much more difficult to share custody.

Q: My husband said that if I divorce him, he will disappear with our child, what can I do?

A: As unintuitive as it may seem, filing AND serving your husband with divorce papers offers you more protection than waiting to see if your spouse follows through with his threat to take your child. Until you file, the law assumes that the two of you are married and have equal rights to your child, and law enforcement will not interfere with marital disputes unless there is domestic violence. Once there is an active divorce case pending, the law recognizes that you are separated and that there very well may be a custody dispute. After filing for divorce, you can also request emergency custody orders based on your husband’s threats. It is very important that you seek legal representation if your spouse is threatening to kidnap your child as soon as possible.

Forms

All divorces begin with at least two required forms:

  1. Petition (FL-100). This form is a request for a divorce. It’s extremely important because it outlines what the major issues are and what orders you are asking for with your divorce.
  2. Summons (FL-110). This provides notice to the other party that you are requesting a divorce. It advises the person that he or she must respond to your request for a divorce within 30 days and places certain restrictions on both you and the other side.

If you have minor children, you are also required to complete the following form:

  • Declaration Under Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA) (FL-105). This establishes your child(ren)’s residency for the past five years.

After filing for divorce, the next step is serving the other party. The other side must be personally served the documents by any adult other than you. After serving the initial paperwork, you must file a proof of service with the Court. FL-115 or FL-330. If your spouse is cooperating with the divorce process, you can also ask him or her to sign a Notice and Acknowledgment of Receipt (FL-117), which meets the service requirements.

If you are responding after being served with divorce papers, you need to file a Response (FL-120), which allows to the Court to see your side of the story. If you have minor children, you are also required to complete your own Declaration Under Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA) (FL-105).

The second part of a divorce requires a full financial disclosure consisting of four additional forms. Both sides are participating in the case, they are required to complete all of the following documents:

  1. Income and Expense Declaration (FL-150). This form must be filed with the Court and is a listing of all of your earnings and average monthly expenses.
  2. Schedule of Assets and Debts (FL-142). This lists everything you own and everything you owe.
  3. Declaration of Disclosure (FL-140). By signing this form, you declare that you have completed a full financial disclosure.
  4. Declaration Regarding Service of Declaration of Disclosure and Income and Expense Declaration (FL-141). This document, which is filed with the Court, means that you have provided that full financial disclosure to the Court.

If you need some sort of orders prior to your divorce being finalized, you can file a motion with the Court regarding any family law issue from support to custody to attorney fees. All motions required two forms:

  1. Order to Show Cause (FL-300) or Notice of Motion (FL-301). If this is your first time appearing in front of a judge, you need to file FL-300. If you have already appeared in front of a judge in your divorce case, you can file either an Order to Show Cause or a Notice of Motion. This form tells the Court what orders you are requesting.
  2. Application for Order and Supporting Declaration (FL-310). This form must be attached to either an Order to Show Cause or Notice of Motion and provides an explanation to the Court of why you are requesting particular orders.
Video instructions on how to fill out these forms

Statutes

Family Code Section 4320.

In ordering spousal support under this part, the court shall consider all of the following circumstances:

  • (a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
    • (1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.
    • (2) The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
  • (b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.
  • (c) The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.
  • (d) The needs of each party based on the standard of living established during the marriage.
  • (e) The obligations and assets, including the separate property, of each party.
  • (f) The duration of the marriage.
  • (g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
  • (h) The age and health of the parties.
  • (i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.
  • (j) The immediate and specific tax consequences to each party.
  • (k) The balance of the hardships to each party.
  • (l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a “reasonable period of time” for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.
  • (m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4325.
  • (n) Any other factors the court determines are just and equitable.

6203. For purposes of this act, “abuse” means any of the following:

  • (a) Intentionally or recklessly to cause or attempt to cause bodily injury.
  • (b) Sexual assault.
  • (c) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another.
  • (d)To engage in any behavior that has been or could be enjoined pursuant to Section 6320.

6320.

  • (a) The court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members.
  • (b) On a showing of good cause, the court may include in a protective order a grant to the petitioner of the exclusive care, possession, or control of any animal owned, possessed, leased, kept, or held by either the petitioner or the respondent or a minor child residing in the residence or household of either the petitioner or the respondent. The court may order the respondent to stay away from the animal and forbid the respondent from taking, transferring, encumbering, concealing, molesting, attacking, striking, threatening, harming, or otherwise disposing of the animal.