FAQ

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Adoption

Q: Do I need to go to Court for an adoption?

A: Adoptive parents must file a petition requesting the Court’s approval and go through an adoption hearing. Unlike the legal dramas you see on TV though, adoptions are almost always happy occasions. Many adoptive parents bring toys and a camera to commemorate the special event. Many judges choose to conduct the adoption proceedings informally in their chambers in honor of the occasion.

Q: What should my adoption petition say?

A: Typically, an adoption petitioner should include the following five pieces of information:

  1. The names, ages, and current address of the adoptive parent(s);
  2. The relationship between the child and the adoptive parent(s);
  3. The reason why the adoptive parents are asking to adopt the child;
  4. Why the adoptive parents are appropriate people to adopt the child; and
  5. Why the adoption is in the child’s best interests

If the birth parents consent, this is also typically included in the petition, along with any requested name change.

Child Custody/Visitation

Q: How do I get custody and visitation orders?

A: Custody and visitation orders are established either by a full agreement written up between the parties, or else by filing a motion with the Court and asking the Court to make orders. If you and the other parent are unable to reach an agreement out of Court, you will be required to attend mediation. Mediation is a process intended to help the two of you reach an agreement on custody and visitation, and worst case scenario, provide the Court with recommendations on what the Judge should order regarding custody and visitation.

Q: I don’t agree with the Mediator’s recommendations. What now?

A: You will have a chance to argue your case in front of the Judge before he or she makes orders regarding custody and visitation. Although the Mediator’s recommendations are persuasive, Judges don’t automatically adopt them. If there is time, you might want to speak with your attorney about drafting a formal declaration responding to the Mediator’s recommendations, conferring with the other side, and/or discussing the best strategy to present your proposed schedule to the Court.

Child Support

Q: How is child support calculated?

A: The simplest explanation is that child support is based on two primary factors: the amount of time each of you spends with the child and the amount of money each of you makes. California uses a statewide formula to calculate how much child support should be paid. The most common program used is called a DissoMaster™ and can be found at most self-help centers. Support calculated by this formula is called “guideline support.” Anything that deviates from the computer-calculated figure is considered “non-guideline support.”

Q: What can child support be spent on?

A: The parent receiving child support has no obligation to account for this money, nor does the parent paying child support have any right to dictate how the money should be spent. Child support does not necessarily include all expenses associated with raising the child. For example, expenses such as childcare or uninsured healthcare costs are equally divided and are not part of guideline child support.

Divorce

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.

Domestic Partnership Dissolution

Q: What are the differences between dissolution of marriage and dissolution of domestic partnerships?

A: The main difference is that while dissolutions of marriages have been going on for a long period of time, domestic partnership law is relatively new. Because of the differences between California State law and Federal law, there are still a number of uncertainties regarding property division, taxes, and custody issues. Couples who have a registered domestic partnership must dissolve their partnership in California, even if they both move out of the State or never lived in California. They are still under the six month residency requirement, which means that some domestic partners will need to file for a legal separation and later amend to a dissolution. Your attorney should have the skill and expertise needed to guide you through this tricky legal area.

Q: How does Federal law affect my domestic partnership?

A: It’s very important to remember that federal law does not recognize domestic partnerships. Domestic partners, for the most part, do not enjoy the thousand federal laws in which marital status is a factor, including rights under Social Security, Medicare, immigration law, veteran’s benefits and federal tax laws. Domestic partners also may not have the same rights as married persons once they cross beyond California’s borders. Additionally, Federal tax laws have not changed to recognize domestic partners.

Domestic Violence

Q: Is domestic violence only physical violence?

A: Absolutely not! Domestic violence is any of the following: physical violence, forced or coerced sexual acts or behavior, threats of physical violence, psychological abuse, stalking, harassment, verbal abuse, among other acts. Typically, many kinds of abuse go on at the same time in a household.

Q: How much does it cost to file a restraining order?

A: Both the filing and service of a restraining order are free.

Q: How do I know if I qualify for a Domestic Violence Restraining Order?

A: You can ask for one if a person has committed acts of domestic violence against you, and you have a close relationship with that person (ex-spouse, a romantic relationship, etc.), or you are related. If you are being harassed or abused by a neighbor, roommate or co-worker, you can ask for a Civil Harassment Order, which can provide you the same protection.

Guardianship

Q: What is a guardianship?
A: Legal guardianship means that someone (or in some cases, more than one person) who is not the child’s parent is in charge of taking care of the child. Legal guardians have most of the same rights and responsibilities as parents. They decide where the child lives and goes to school, make decisions about the child’s health care, give permission for the child to join the armed forces or obtain a driver’s license, and take responsibility for any misconduct of the child. Legal guardians have access to programs and aid through Social Services, and they can cover the child under their insurance policy. At times, guardians may be entitled to child support from one or both of the biological parents.

Q: What is the difference between guardianship and adoption?
A: The biggest difference between guardianships and adoptions is that unlike an adoption, a guardianship is not permanent. At the most, a guardianship lasts until the child turns 18. A guardianship does not permanently sever the legal relationship between the child and his or her parents. With an adoption, the child is now legally part of a new family and his or her biological parents will never have any legal rights to the child again.

Q: Is a Legal Separation easier than a divorce?

A: Usually not. Legal separations must resolve the same issues as a divorce, namely custody, visitation and support of the children, spousal support (alimony), property and debt division, and attorney fees.

Q: What are the benefits of a Legal Separation versus a divorce?

A: People choose a legal separation over a divorce for a variety of reasons. Two of the most common reasons include a moral/religious objection to divorce and a desire to maintain the same health insurance. Unlike a divorce, there is no six month waiting period to finalize the matter. You also don’t need to be a resident of California in order to obtain a Judgment of Legal Separation.

Mediation

Q: What are some of the benefits to mediation?

A: Fact: in family law, the law must be followed in only rare circumstances. The law can be viewed as more of a guide for resolving divorce issues, rather than as the definitive way to consider an issue. One of the biggest benefits mediation offers people is the power to choose when to hear the law and in how much detail. Your family law situation is unique and it is very rare when following the law exactly results in benefitting both sides. Mediation allows you to craft a solution that works for both parties.

Additionally, mediation tends to be less expensive than a traditional litigated family law matter. Often times, a mediated divorce will cost approximately half of a contested divorce.

Mediation is also a good option for people who will continue to have a relationship after they are divorced, or if they have children together. Resolving your family law matter in Court can lead to frustration and hostility between you and the other person.

Q: What should I be aware of when deciding to mediate?

A: First of all, remember that YOU are in charge of the process. If you don’t like the way things are going, you always have the ability to back out of mediation and choose to take the matter up in front of a judge. Mediation is not always appropriate in every situation. If both parties are not committed to the process, it is usually a waste of time and money to engage in mediation. Finally, be sure that if your mediator is not an experienced family law attorney, that you hire a consulting attorney to work with you and provide you advice.

Paternity

Q: What type of case is it if I was never married to the other parent?

A: These cases are commonly referred to as “paternity” cases. If parents are married at the time their child is born, the law presumes the couple to be the child’s parents. If the parents were not married when the child was born, they become the child’s legal parents by “establishing paternity.”

Q: How do I establish who the father of my child is? How do I prove that I am the father of my child?

A: Parentage of a child can be established in one of three ways: 1) the father signs a Voluntary Declaration of Paternity (commonly referred to as a “Pop Dec”); 2) through the local child support agency; or 3) by one parent going to Court and requesting that parentage be established.

Post-Judgment

Q: How do I change something after I have a Judgment?

A: A Judgment may be modified if there has been a change of circumstances that would justify that modification. Common post-judgment modifications include custody, visitation, and support. If one parent wishes to relocate to another state, this will require the parenting order in effect to change. If one party loses a job or gets a promotion, this may warrant a change in child and/or spousal support.

Q: Do I have to pay spousal support for the rest of my life?

A: For marriages lasting fewer than 10 years, the presumption is that spousal support should last approximately one-half the length of the marriage. For marriages over 10 years in length, there is no set limit on the amount of time spousal support must be paid. In general, terminating spousal support is on a case-by-case basis. While some people obligated to pay spousal support must do so for decades, others are successful in terminating support after paying for approximately the length of the marriage. It is a very rare situation where a payor of spousal support must do so for the rest of his or her life.

Spousal Support

Q: Why should I have to pay spousal support if the other party is working full-time?

A: Spousal support is based on 14 different factors, including the length of the marriage, the standard of living during the marriage, disparity in income, among others. If you significantly out earn your spouse, it’s highly likely that the Court will find that some spousal support is appropriate.

Q: How long do I have to pay support for?

A: If your marriage is under 10 years, a good rule of thumb is to expect to pay support for one-half the length of the marriage. Marriages over 10 years in length are considered to be long term marriages, and chances are that there will be no automatic termination of spousal support after a certain period of time.

Misc. Questions

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