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Q:  What is a divorce?

A:  A divorce, sometimes called a “decree of dissolution of marriage,” is a court order terminating a marriage. After a divorce, the marriage no longer exists. Unlike an annulment, which states that the marriage was never valid or never existed, a divorce is the termination of a valid marriage. The outcome of the divorce should seek to resolve all issues between the parties, such as the division of property, child custody and visitation, and spousal and child support. 

Q:  What is an annulment?

A:  An annulment is a court order declaring that a marriage is not valid and was never valid. The most common ground for annulment is fraud-- when one spouse never disclosed to the other spouse important information  such as a previous marriage, a criminal record, an infectious disease, the inability to have children, or the desire not to have children. In addition, an annulment might be granted because one party is already married, the parties are too closely related (i.e. incest has been committed), or one party is underage and did not obtain appropriate parental consent. An experienced attorney can help you determine if an annulment is appropriate in your case.

Q:  What is mediation?

A:  Mediation is an informal process where you and your soon-to-be ex-spouse meet with a neutral third party, called a “mediator,” and you try to negotiate an agreement in regards to your divorce.  The goal is to reach an agreement on things like property distribution, child support and custody, and alimony without going to court. Some mediators prefer to meet with both of you at the same time, while others prefer to meet with each of you separately and act as a "go between." You and your soon-to-be ex-spouse should discuss your preferences as to how you want the mediation to be run and make sure that the mediator you select will accommodate your preferences. Mediation is often faster because you determine the schedule and issues, and cheaper because you can  control the cost, which is usually about 1/10 to 1/3 the cost of a typical divorce case.  The mediation process is kept confidential, in fact, California law prohibits mediators from later testifying in court.  Mediation is most successful in cases where there are not many contested issues and the parties on relatively good terms, and if mediation is not successful, you can still take your case to court. 

Q:  Can mediation work if we can't even get along to talk to each other?

A:  If you are willing to try to learn to talk to each other, then it's worthwhile to try mediation. Mediators have been professionally trained to help people to build agreements and to learn to communicate with each other. If you're willing to try, mediators can get you talking.

Q:  I want to divorce my spouse—what is the first step I should take?

A:  There are many complex legal issues when it comes to divorce—from the division of property and debts, to child custody and visitation rights.  You should seek a qualified attorney before beginning the process of divorce. 

If you have been married only a short time, have no children and little property, it may seem financially advantageous to “do it yourself.” However, timing can often be crucial in getting a divorce, and an attorney can best advise you when it will make the most sense in terms of insurance and taxes. A skilled attorney can help you avoid personal and/or property matters that may cost you money down the road, and will represent your best interests in resolving any financial complications that may arise. An attorney also can help avoid the possibility of one party claiming that he or she was taken advantage of because all facts were not disclosed.  An attorney can also help you determine if  mediation or a collaborative approach is appropriate in your case.

Q:  Can my spouse and I share one divorce attorney?

A:  When a couple thinks they agree on all issues involved in a divorce, it may seem logical to save money and use one attorney to just “handle the paperwork.” This is almost always a  bad idea because as opposing parties, your interests will never be aligned. Lawyers recognize the possibility of conflict of interest, in which it is impossible to represent both sides fairly. Most lawyers would advise against using a shared attorney. However, some states allow a lawyer to represent clients with opposing interests if the lawyer has informed both clients of the conflict in writing and the clients have agreed in writing to the dual representation. When an attorney does represent both sides, it may open the door to malpractice claims if you were harmed by the lawyer's dual representation.

Using separate lawyers does not have to lead to creating conflict where none existed; it may be invaluable, however, in making it clear that parties have not considered every potential issue, and have disregarded something that may come back to haunt them later.  An attorney can also help you to mediate or use collaborative law to terminate the marriage. 

Q:  Do I need to give a  reason to get divorced?

A:  California is a no-fault divorce state, meaning that you do not to prove that one spouse is “at fault” for causing the divorce as in other states.  The only grounds needed for a dissolution of marriage in the state of California is “irreconcilable differences,” which have caused the irremediable breakdown of the marriage. The court shall enter a decree of dissolution under these grounds if the other party does not deny that the marriage is irretrievably broken. If your spouse is incurably insane, that is another grounds for divorce in California.  The only other requirement to file for divorce in California is that you are a resident of the state, having lived in the state for at least 6 months, or member of the armed forces stationed within the state.

Q:  What if I want a divorce and my spouse does not?

A:  Divorce can be entered unilaterally, meaning that as long as one party seeks a divorce, the marriage can be ended.  That being said, the divorce process goes much more smoothly and quickly if both parties agree upon getting divorced and one party is not trying to impede the process, which can be accomplished by various means of contesting the divorce, hiding assets, etc.  

Q:  What does contested/uncontested divorce mean?

A:  A contested divorce is one where the couple have one or more issues, usually custody and property, that they cannot settle and are not resolved.  An uncontested divorce is one without unresolved issues and when a final judgment can be entered without a trial. When there are no contested issues in the divorce, it may appropriate to try mediation or a collaborative law approach.

Q:  What is a separation?

A:  A separation occurs when a married couple decides they no longer want to live together, and to live apart for a while, though they are still married.

Q:  Is there any requirement that I physically live apart from my spouse while I file for divorce?

A: There is no requirement that you live apart, but it is important to keep track of when you began living apart from a spouse for the purpose of accounting for community property and debts incurred after that date, as it would be considered separate property after the date of separation.

Q:  What is a “legal separation?”

A:  Another type of action, separate from a divorce, is a legal separation. A legal separation greatly resembles an action for divorce in which property is divided, except that the parties are not free to re-marry. One major advantage of filing a legal separation action is that, unlike a dissolution, there are no residency requirements.

Q: How will our property be divided in a divorce?

A:  How property is divided depends upon the laws of the state where you are filing for divorce.  California is one of nine community property states, meaning that these states generally consider all property that has been acquired during the marriage to be community property, with the exception of property acquired through a gift or inheritance.

Property includes personal property, cars, real estate, shared savings and checking accounts, stocks, bonds, shares or interest in a business, and insurance policies.  You might think property is something with value, but in fact even things that you might think have "no value" can be classified as property. For example: debt (loans, credit cards) goodwill, business name, professional degree or license, trade mark, copyright etc.  Even if one spouse has earned all the money or a greater portion of the money to acquire the property, all the property is considered community property. 

Unless the spouses agree otherwise, all community and quasi-community property is divided equally between the spouses. If economic circumstances warrant, however, the court may award any asset to one spouse on such conditions as it feels proper to provide for a substantially equal distribution of property. In addition, if one of the spouses has deliberately misappropriated community property, the court may make an unequal division of the community property. Marital contributions to the education and training of the other spouse that substantially increases or enhances the other spouse's earning capacity are reimbursable to the community property.

Q:  What about separate property?

A:  Separate property is property that is not part of the marriage as a whole, but rather belongs exclusively to either the husband or the wife. Any property that can be "alienated" (disposed of, sold, given away, left in a will) by one partner without requiring the permission of the other partner is separate property. Common examples are property acquired through gift or an inheritance, or one spouse's interest in property acquired before marriage. Any separate debts during the marriage that were not incurred to benefit the community, is considered separate property, as well as any debts incurred after separation and before dissolution of marriage if the debts were for non-necessities and an equitable share of debts incurred during this period if the debts were for necessities. However, keep in mind that in California, you must take care to keep gifts and inheritances separate in order to maintain them as separate property; if the court finds that this property has been “commingled,” it may be considered community property to be divided equitably with the spouse.

Separate property is not divided during the divorce, but rather is retained by the spouse who owned it during the marriage.

Q:  What about our debts-- how will those be divided?

A:  In addition to the property acquired during the marriage, the debts incurred during the marriage are divided upon divorce. Dividing the debt upon divorce determines who is responsible to repay the debt.

If both spouses co-signed for a debt, both spouses will probably be held to "joint and several liability" for the debt. "Joint and several liability" means that each spouse is responsible for the entire debt, but also the spouses are jointly responsible for the debt. When a joint and several liability is divided, the debt is attributed to both spouses. Often, however, one spouse is made responsible for the entire amount of the debt. This is generally offset by an "equalization" payment; that is, the spouse who pays the debt receives more property in the settlement than the spouse who is left free from the debt.

In California, debts that were incurred for the benefit of the family are joint and several liabilities of both spouses. For example, housing, furniture, furnishings for the home, child care and children's doctor expenses would be considered as being incurred for the benefit of the family. Since both spouses benefited from these family expenses, both spouses would be responsible for the repayment of these debts.

Expenses that were incurred solely for the benefit of one spouse, such as a vacation for one spouse, or a hobby of a spouse, may be left as the responsibility of the spouse who obtained the benefit. However, in most community property states, both spouses are equally responsible for the repayment of debt incurred during the marriage, even if only one spouse enjoyed the benefit. Typically, the debts that one spouse brings into the marriage (separate or non-marital debt) remain the responsibility of that spouse, but sometimes, both spouses can be held responsible for separate (non-marital) debt.

When a joint tax return is filed, the Internal Revenue Service holds both spouses to joint and several liability for the tax.

Q:  What about my pension or retirement fund?

A:  In California, pensions and retirement funds accrued during the time of marriage are considered part of the community/marital property that is to be divided among the parties in a divorce. If the pension is already being paid, the pension plan administrator can usually pay your portion directly to you. 

Q: What is alimony?

A: Today, alimony is more commonly termed “spousal support” or “spousal maintenance,” referring to payments or transfers of money or assets from one spouse to another after a divorce. Spousal support laws in California seek to prevent a divorced spouse from suffering from a decrease in his or her standard of living. Often times after divorce, one spouse is untrained or has been out of the workforce for such a significant amount of time that it would be difficult, if not impossible, for them to quickly attain a job or professional position that would allow them to maintain the standard of living that they may have had while they were married.

Q:  How is alimony or spousal support determined?

A:  In California, the support payments (if any) can certainly influence how the marital property distribution is awarded, which is why it can become a very intricate part of the final outcome of any divorce.  The court may award support to either spouse in any amount and for any period of time that the court deems just and reasonable, based on the standard of living achieved during the marriage. The factors considered are:

whether the spouse seeking support is the custodian of a child whose circumstances make it appropriate for that spouse not to seek outside employment;

the time necessary to acquire sufficient education and training to enable the spouse to find appropriate employment and that spouse's future earning capacity;

the standard of living established during the marriage;

the duration of the marriage;

the comparative financial resources of the spouses, including their comparative earning abilities in the labor market;

the needs and obligations of each spouse;

the contribution of each spouse to the marriage, including services rendered in homemaking, childcare, education, and career-building of the other spouse;

the age and health of the spouses;

the physical and emotional conditions of the spouses;

the tax consequences to each spouse;

the ability of the supporting spouse to pay, taking into account that spouse's earning capacity, earned and unearned income, assets, and standard of living;

the balance of hardships to each party;

any other factor the court deems just and equitable.

Marital misconduct is not a factor to be considered in determining the amount of support, except for a criminal conviction of an abusive spouse. The goal is specifically to make the supported spouse self-supporting in a reasonable period of time (generally considered to be half the length of the marriage).

Q:  Do all divorces involve a spousal support settlement?

A:  No, this is a common misconception. Only about ten to fifteen percent of all divorces or separations have any sort of spousal support as part of the final divorce judgment or decree.

Q:  What is rehabilitative alimony?

A:  Rehabilitative alimony is financial support that is provided for a short period of time; to allow the receiving spouse time to get adjusted, establish him or herself, financially. This type of alimony will allow the divorced spouse time to "rehabilitate" him or herself and become completely self-supporting.

Q: Are spousal support payments considered expenses for tax purposes?

A: Yes, in general, spousal support payments are counted as deductible expenses for the spouse making the payments, and considered taxable income for the spouse receiving the payments.

Q:  What is child custody?

A:  In California, the court will award sole or joint child custody to either the mother, father or both with the best interests of the children as the standard for any decision. All custody cases must have a proposed parenting plan or agreement to be presented to the court for approval before the final order is put in place. If the parents do not come to an agreement, the court will devise a parenting plan granting joint custody, based on the presumption that joint custody is in the best interest of a minor child. 

Under joint physical custody, the time is divided more evenly or equitably (not always the same thing, so ask your attorney what may happen in your particular case). The child will spend significant amounts of time with each parent, often weeks at a time.

Q:  What is joint legal custody?

A: Joint legal custody, which is much more common than joint physical custody, means that both parents make decisions regarding the children’s health, education, welfare, etc. Joint physical custody means that the children spend a significant amount of time with each parent (multiple overnights in a row on a consistent basis). This does not necessarily mean that the time with the children is divided evenly between the parents.

Q: How is child custody determined?

A: Courts use the standard of the “best interests of the children” in determining child custody arrangements. In making its determination of the best interest of the child, the court will look at:

  • The health, safety, and welfare of the child;

  • Any history of abuse by one parent or any other person seeking custody against any of the following: 

Any child to whom he or she is related by blood or affinity or with whom he or she has had a caretaking relationship, no matter how temporary.

The other parent.

A parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship. 

  • The nature and amount of contact with both parents;

  • The habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol by either parent.  

Q:  What is visitation?

A:  When one parent is granted primary custody of the child or children, that parent is termed the "custodial parent." The "noncustodial parent" is granted visitation rights. Through visitation, the state and the judge are attempting to provide a system whereby the parent can maintain a healthy relationship with his or her child. 

Q:  Do all parents have the right to visitation? What if I don't want my children to visit with my ex-spouse?

A:  Typically the spouse who does not have physical custody of the child has the legal right to visitation. These rights can be withheld if evidence can be brought forth proving that it is in the best interest of the child not to see the spouse (examples: excessive use of alcohol, physical or verbal abusiveness). The amount and schedule of visitation is stated in the final agreement and can vary according to each family’s situation, lifestyle and circumstance, and may be quite small or quite substantial.

Q:  What is child support?

A:  Either parent may be ordered to pay child support. Marital misconduct is not a factor to be considered, but all relevant factors may be considered. It doesn’t matter if the parents are married, or if they are living together. The responsibility of child support is that of the parents as individuals or as a unit. Indeed, it doesn’t matter if the parents have not had any continued contact after the conception of the child. All parents are legally responsible for child support. The term "child support" covers all the economic necessities of life required by a child. These necessities include, but are not limited to, food, clothing, shelter, education, medical care, and other day-to-day expenses.

Q: How is child support determined?

A: Each state, including California, has its own child support guidelines which set out the method of calculating child support.  In California, either parent may be ordered to pay an amount necessary for the support, maintenance, and education of the child. Child support payments may be awarded on a temporary basis during custody or child support proceedings. There is a mandatory minimum amount of child support which is determined by official forms which are available from the County Clerk of any county.

These minimum payment amounts will apply unless there is a reasonable agreement between the parents providing otherwise that states that:

(1) the parents state that they are fully informed of their rights regarding child support under California law;

(2) that the child support amount is being agreed to without coercion or duress;

(3) that both parents declare that their children's needs will be adequately met;

(4) that the right to child support has not been assigned to the county and that no public assistance is pending.

A parent may be required to provide medical insurance coverage for a child if such coverage is available at a reasonable cost. An applicant for child support must complete and submit to the court:

(1) an application for an expedited child support order;

(2) an income and expense declaration from both parents;

(3) a worksheet setting forth the basis of the amount of child support requested; and

(4) a proposed expedited child support order.

The parent required to pay may be required to give reasonable security for the support payments. In addition, there are detailed and extensive statutory provisions in California relating to the securing of child support payments. An experienced attorney can help you make sure you are getting the child support that your children need.

Q:  What if my child's financial needs change—is it possible to modify the child support agreement?

A:  A child support award is an order of the court, and as such it exists outside another agreement. If you find that your circumstances have changed, and the existing child support award does not apply to these new circumstances, you can petition the court for a "modification" of the award. Be prepared to explain to the judge’s complete satisfaction your reasons for requesting a modification. Typical reasons include: the child is now  living with the other parent, the non-custodial parent has more/less overnight visitation with the child, either parent has a substantial increase or decrease in annual income, child needs special care or healthcare, substantial increases or decreases in the child's expenses, or a change in the the child support guidelines of your state.

Q:  Can I deduct my child support payments as an expense for tax purposes?

A:  Child support payments are not deductible by the parent paying the child support. Similarly, child support payments are not considered income by the parent receiving the child support. The paying parent in child support may conclude that paying a lower child support and a higher spousal support will benefit them when tax time comes around. Tax consequences are often given heavy consideration in all negotiations regarding a divorce settlement.

Q:  What will happen to our health insurance for my dependent children and I after I divorce my spouse?

A:  Your spouse may keep the children on his or her policy. However, as you are no longer married you are no longer eligible for coverage on his policy. However most plans offer a conversion package to individual coverage under COBRA, a federal law. The cost of insurance is usually the responsibility of the separate parties after a divorce. However, coverage for the children may be available.  

Q:  Once the divorce is finalized, is there any way to change it?

A:  Unless there is a provision in the separation agreement to do so, they cannot. However, there is a provision in the law to amend spousal or child support based upon a change of circumstances.  The only other provision reasonably available is fraud. If a party commits fraud in the negotiation of an agreement, it may allow for a change in the agreement to correct it.  There is also a provision in the law to correct mistakes in drafting. However, usually the mistake must not be unilateral, that is, only one party believes that the language is in error.

Q:  What is a “730 Evaluation?”

A:  730 refers to section 730 of the California Evidence Code, which provides that the court may appoint an expert to offer an opinion an issue that is before the court. Experts will investigate the situation and offer "expert" opinions to the court. The court will consider the opinions, but the final decision in matters before the court rest with the court and the court is not permitted to simply rubber stamp the expert opinion. Experts may be appointed by the court to make recommendations concerning child custody, property valuations, or even to determine cash flow from a business.

Q:  How much will it cost me to hire a divorce attorney?                                                 

A:  It is difficult to determine how much a divorce will cost. However, after reviewing the likely issues, a lawyer may be able to give you a range of expected expenses. Controlling the expenses in a divorce, however, is no easy task. Many of the factors contributing to legal costs are outside of your lawyer’s control. The ability of the parties to cooperate and communicate may also have a significant impact. Your attorney is required to provide you with a written retainer agreement identifying the costs and hourly fees that will apply to your case. It is important that you read this document carefully and ask questions regarding any unclear issues. Once you have signed the retainer agreement, it is a legally binding and enforceable contract.

An attorney may also agree to charge a flat fee for handling your divorce. Fees charged by lawyers can vary from state to state and county to county. You may find a lawyer who charges a fixed flat fee for motions after a divorce or for uncontested proceedings where the parties have reached an agreement. In such instances, the amount of work which must be performed by the lawyer can be easily determined. This is a favorable payment method since you will know at the outset the total cost of the proceeding which will allow you to budget accordingly.

Copyright 2012, 2011, 2010


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