The following are some of the more common questions asked by our clients who have undergone a California divorce. Please remember, not all cases are alike and that the divorce process becomes more difficult when you are dealing with a stubborn or abusive spouse, or are trying to protect innocent children. Should you have further questions, I encourage you to call our office to setup an appointment for a free consultation.
The Law Offices of Edward Misleh, APC is a Sacramento law firm, located in Sacramento, California that practices family law and represents clients in Sacramento, California and clients in Northern California with services they need and deserve when addressing divorce. Call now our Lawyer Hotline. We offer a free consultation to all new clients. Call now 916-443-1267 for your free consultation.
Grounds for Divorce
Can I file for divorce? What are the grounds for divorce? Do I need to be a resident?
In California, there are two grounds for divorce – irreconcilable differences and incurable insanity. You must have medical proof that one spouse is incurably insane.
Divorce Residency Requirements
You or your spouse must have lived in California for six months and in your county for three months before filing for divorce.
How do I file for divorce? What forms to I need to file?
There are temporary restraining orders that go into effect automatically when the divorce process begins, which includes;
- Neither spouse is allowed to take your minor children out of state without the other spouse’s written permission or a court order.
- Neither spouse is allowed to cancel or change the beneficiaries on your insurance policies or transfer property.
- Either spouse is required to notify the other before any out-of-the-ordinary spending—and be prepared to account for such expenditures to a judge.
What is a legal separation? How does a legal separation differ from divorce?
You remain married but are no longer part of a “community.” Often taken for religious, insurance, or tax purposes. A court will divide your property and issue orders relating to child custody, visitation, child support and spousal support, and, if necessary, a restraining order. There is no residency requirement for filing for legal separation, you can get a legal separation without having lived in California for six months or your county for three months before filing.
I want to get an annulment. What is an annulment? How does an annulment differ from a divorce?
This is a court ruling that your marriage never existed. You may be able to get an annulment if you married when you were a minor without the consent of your parents or guardian, or if there was fraud or deceit.
Is there such a thing as a simple divorce? What is a simple divorce?
California has a process called summary dissolution. You may be eligible for such a process if:
- A division of all assets and debts have been agreed upon, in writing;
- Your married is for five years or less;
- You have no children from the relationship.
- Neither of you own a home or other real estate.
- The value of all community property amounts to less than $25,000, excluding automobiles.
- The value of either party’s separate property amounts to less than $25,000, excluding automobiles.
- Your combined debts do not exceed $4,000, except for an auto loan.
- Neither spouse is requesting spousal support.
When is my divorce final? How do I complete my divorce?
Your divorce will be final when the court issues a judgment which will be at least six months after your spouse was served with the petition. The court does not automatically end your marriage when the six months have passed. You cannot legally remarry until you obtain a judgment even if the six months have passed.
Property and Financial Information
What are financial disclosures? How do I compete these forms?
If your spouse is withholding information about your property or finances, we can take their deposition, request answers to written questions, or conduct an Inspection Demand (a request that your spouse disclose and release important documents).
What is community property? How is community property divided? How much of the community property is mine?
Community property possessions are divided equally unless you and your spouse agree to an unequal division.
Community property is all property that you and your spouse acquired through labor or skill during the marriage. This includes interests in pension and profit-sharing benefits, stock options, other retirement benefits or a business owned by one or both of you. Each spouse owns half of the community property. This is true even if only one spouse worked outside of the home during the marriage-and even if the property is in only one spouse’s name.
Who pays the debts? Who is responsible for our credit card debts?
Both spouses are responsible for community debts, debts incurred during the marriage. The only exception being, student loans. Divisions can be done by an agreement entered into by you and your spouse or, if you and your spouse cannot agree, by the court.
What is separate property? Who get the separate property in a divorce?
Separate property is property acquired before your marriage, including rents or profits received from these items; property received after the date of your separation with your separate earnings; inheritances that were received either before or during the marriage; and, gifts to you alone, not you and your spouse. Separate property is not divided and belongs solely to the spouse who owns the property. Problems can arise when separate property has been mixed with community property, the community may acquire an interest in separate property. However, you may be entitled to receive your separate property back even if it has been mixed. Debts incurred before your marriage or after your separation are considered your separate property debts.
How do I get spousal support? Can my spouse get spousal support from me?
Spousal support, also known as alimony or partner support, is money that one spouse pays to help support the other after the filing of a dissolution. Usually, the spouse receiving such support will pay federal and state income taxes on it, and the one making such payments will be entitled to a tax deduction.
The amount of spousal support awarded is determined by considering certain factors, such as the standard of living during the marriage, the length of the marriage, and the age, health, earning capacity and job histories of both individuals. If the marriage lasted less than 10 years, it is unlikely that a judge will order spousal support for longer than half the length of the marriage.
Who will get custody or our children? What is sole custody? What is joint custody?
You and your spouse can agree to a parenting plan which will state which spouse will take care of your children. Otherwise, a judge will decide on a parenting plan. Both parents are responsible for supporting your children if they are under age 18. And this duty may extend beyond age 18 if certain conditions are met. In addition to child support, parents may be required to pay other expenses for the children, such as child care, medical care and/or travel between households.
The amount of support to be paid by one parent to the other is based on established guidelines. Computer programs are available for helping parents determine who will pay such support, and how much is to be paid. Significant factors include each parent’s income and the amount of custodial time each of you spends with the children.
Such support need not be reported as income for federal and state tax purposes, and the parent paying such support is not entitled to a tax deduction.
You may request a wage assignment order. This is an order that requires a parent’s employer to make child support payments directly from the parent’s wages.
Child Custody Agreements
Can we agree on custody? Do we have to go to court for custody?
If you and the other parent are unable to agree on custody or visitation, you will be required to appear in court for a judge to decide on a parenting plan. Before any hearing or trial involving child custody or visitation, both parents are required to meet with a trained counselor who will try to help you agree on a custody and parenting plan. In some counties, counselors are able to submit a recommendation to the judge even if you and your spouse did not reach an agreement. In other counties, meetings with the counselors are entirely confidential and the counselor can only report agreements reached by the parents.
Depending on the nature of the custody dispute, the judge may order a psychological evaluation of the family and may appoint an attorney to represent the children.
Court Ordered Child Custody & Visitation
What is visitation? How much time will I get with my child?
The judge may give custody to one or both parents, or, in some cases, to another adult based on the best interests of the child. Considerations include the child’s health, safety and welfare, as well as any history of abuse by one parent. For custody to be awarded to someone other than a parent, however, the judge would have to believe that giving custody to either parent would be detrimental or harmful to the children.
- Joint legal custody means that both parents share the right and responsibility to make important decisions about their children’s health, education and welfare.
- Sole legal custody means that one parent has the right to make decisions related to the health, education and welfare of the children.
- Joint physical custody means that the children spend time living with each parent on a regular basis. This does not mean, however, that the children must spend equal amounts of time with each parent.
- Sole physical custody means that the children live with one parent and the other parent has visitation.
The judge must consider what the child wants if the child is “of sufficient age and capacity to reason.” Children age 14 and older are also entitled, if they desire, to express an opinion about custody issues to the court. In either case, however, the judge is not required to follow the child’s wishes.
A California domestic violence restraining order is an order that helps protect you from someone with whom you have a close relationship and who is abusive. It may contain orders telling that person what they cannot do to you. It may also have orders that tell that person to stay a certain distance away from you.
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