FAQ
1. Do I need to allege any grounds for divorce? NO. For many years, California has been what is a called a “No Fault” divorce state. This means that either party to a marriage may file for divorce without having to allege any grounds for the divorce. Simply stating that “irreconcilable differences” have arisen is sufficient to obtain a divorce in California. 2. Does it matter who files for divorce first? NO. In California, the courts are not concerned with which party files for divorce first. A person cannot gain an advantage in the case over the other person simply by filing for divorce first. The person who files for divorce is known as the “Petitioner.” The other person is the “Respondent.” 3. How long will it take to complete and finalize my divorce? Although the actual length of each divorce case varies on a case by case basis, by law in California, a judgment of dissolution of marriage (divorce decree) cannot be filed and entered with the court until at least six (6) months from the date the other person is served with the divorce papers. The six-month waiting period does not prevent parties from settling their case and signing their marital settlement agreement or stipulated judgment during that time period, it just means that their agreement will not be entered with the court until the six-month time period has elapsed. Again, the length of each case varies on a case-by-case basis. Some cases last for years if unresolved issues remain. In order to decrease the acrimony and stress, you should hire divorce and family law attorneys who know the laws and can help prevent delays in the resolution of your case. 4. Do I need an attorney? Any orders pertaining to your family or your children are the most important legal documents that you could have. Particularly in the areas of divorce and family law, where the laws are extremely diverse, increasingly complex, and require legal expertise regarding a full spectrum of legal issues, having a knowledgeable and competent attorney who knows what is important to bring to the court’s attention is critical to the outcome of your case. Facts or issues that an untrained litigant might view as unimportant may be absolutely essential in the eyes of the court. If you cannot afford an attorney or should you wish to proceed without an attorney, you may wish to contact the Family Law Facilitator in Orange County at (714) 935-8304 or visit the Office of the Family Law Facilitator section of the Orange County Superior Court website at www.occourts.org. 5. What are your fees? We charge an hourly rate for our fees based upon the time spent and responsibility required on your case. Our firm requires that our attorneys discuss our fee rates with you at your initial consultation with our firm. At the initial consultation, our attorneys will discuss with you how our fees are determined, our hourly rates, and our billing practices. Our firm requires an initial retainer fee be paid at the outset of the case. The time spent on your case will then be charged against the retainer as the time is actually spent. When we begin representing you in your case, we will provide you with a written Retainer Agreement, which specifies the fee arrangements and the amount of the retainer fee. The amount of the initial retainer will vary depending upon the anticipated complexity of your case. 6. How much will my case cost? The fees and costs associated with each divorce or family law case vary on a case-by-case basis. Each case presents its own unique set of facts, circumstances, and legal issues. Unless the parties commence the case with all issues agreed-upon in advance, it is impossible to estimate the exact amount it will cost to complete and finalize a divorce or family law case. Generally speaking, the more acrimonious and contentious a case is, the more costly it will be since more time usually will be spent conducting discovery, preparing for court, and attending court hearings. In order to reduce the costs associated with your case, it is not only vital that you hire an attorney who focuses their practice on family law issues, but an attorney who knows what issues should be settled out of court and what issues should be litigated in court. The attorneys at our firm are dedicated to reducing the costs associated with our clients’ cases by taking an early, proactive approach to their cases and by identifying at the earliest possible times those issues which can and should be settled outside of court in their case. 7. Does California recognize “common law marriage.” NO. Although other states recognize common law marriage after certain time periods of cohabitation have elapsed, California does not recognize common law marriage as a valid marriage. In California, the only marriages that are recognized as valid are marriages, that take place in compliance with California state law or marriages which are completed in compliance with the laws of other states or countries. However, if a couple resided in a state which recognizes common law marriage, satisfied the requirements to have a valid common law marriage in that state, and then subsequently moved to California, either person would then have to file a divorce Petition in California and initiate a divorce proceeding in California in order to legally end their relationship. Although California does not recognize common law marriage, certain legal rights based upon contract law theory can arise out of a couples’ agreement to reside together in a non-marital relationship. These actions, known in the family law legal community as “Marvin” actions are filed as separate civil cases in Superior Court. If you are involved in a failing non-marital relationship where you have been living together for a period of time and would like to know what legal rights, if any, you might have based upon your relationship, please contact our office and set up an initial consultation. Additionally, if you are in a non-marital relationship and have children together, a parentage (paternity) action may be filed in family law court in order to establish parentage (paternity) and to obtain child custody, visitation, and child support orders relating to your children. 8. How will my property be divided in my divorce? California is known as a “community property” state. Generally speaking, this means that all property (including, but not limited to earnings, income, retirement, pensions, stocks, real property, personal property, autos, etc.) acquired by either party to the marriage from the date of marriage until the date of separation is considered “community property” and is divided equally (on a 50/50 basis) by the court. All property acquired either before the date of marriage or after the date of separation, as well as any gifts or inheritances received by either party at any time, is considered to be “separate property” and will be assigned to the party who has received the separate property. There are special rules and laws, which apply as exceptions equal division rule which can result in an unequal division of the community property. However, the courts generally are bound to divide equally between the parties all property determined to be community property. 9. How will the court decide who gets custody of our children? If parents cannot agree on a custody arrangement for their child or children, then the court will be asked to make a decision for them based upon what the court considers to be the “best interests” of the children. In determining what custodial arrangement is in the best interests of the children, the court must consider a variety of factors including: a. The child’s age, gender, physical and mental health; b. The parents’ physical and mental health; c. The parents’ ability to promote frequent and continuing contact between the children and the other parent; d. The parent’s ability to provide for the health, safety, and welfare of the children; e. Any history of domestic violence and/or child abuse; f. The child’s preferences as to their custodial arrangement provided they are of a sufficient age and capacity to express such a preference; g. The relationship between each parent and the child; h. The relationship between the parents. In many cases, a consideration of the above-mentioned factors will result in the courts awarding physical custody of the children to the parent who has been the primary caretaker. Although the primary caretaker is often the children’s mother, any preference for the mother on a strictly gender basis is an abuse of the court’s discretion. Regardless of the physical custody arrangement that is ultimately awarded by the court, there is a statutory preference in favor of awarding both parents joint legal custody of their children, which means that each parent will normally be entitled to share in the decision-making process regarding the health, safety, and welfare of their children. However, if a parent has been determined by the court to have committed recent domestic violence (within the past 5 years) on the other parent, there is a statutory presumption against awarding the perpetrator of domestic violence joint legal custody of the children. 10. Legal terms regarding child custody
11. How is child support calculated? Under federal law, each state is required to implement uniform guidelines for the calculation of child support within each state. These guidelines vary significantly from state to state but they are all generally based on the parents’ incomes and expenses and the amount of time the children are shared between the parties. In general, California’s child support guidelines are known to be among the highest guidelines in the United States, which means that parents in California who are ordered to pay child support are paying at the highest levels of any state in the United States. In California, guideline child support is calculated by the court with the assistance of court-approved computer programs such as Dissomaster or XSpouse. The guideline formula for calculating child support payments is complicated and is not easily unraveled without an attorney. The formula considers such factors as the parties’ incomes, taxes, tax deductions, medical insurance expenses, and the amount of time the children are shared between the parents. It is important to note that the guidelines are just that-guidelines-and they are not fixed amounts that must be applied in all circumstances. Judges are free to deviate from the guidelines in appropriate circumstances when there are good reasons to do so. 12. Once a court issues a child support order, under what circumstances can the order be modified? As a general rule, courts will not revise a child support order unless there has been a “material change of circumstances.” Ordinarily, this requires a significant factual change in circumstances to occur (e.g., an increase or decrease in either parties’ income; loss of employment; change in custodial timeshare percentage.). The simplest method to modify a child support order is for the parents to agree to the modification. However, in order for their agreement to be valid and enforceable by the court, the agreement must be signed by the parties and filed with the court as a stipulated order. Informal agreements to modify a child support order that are not formalized into a court order will not be recognized by the court and the initial order will remain as the child support order! Another method of modifying child support is to file a motion or order to show cause with the court requesting that the current support order be modified. At the modification hearing, the party requesting the change in child support has the burden of showing the court what circumstances have changed since the initial order was issued to warrant a modification of the child support order. 13. Can I have the court require the other parent to pay our child’s college education expenses? NO. In California, a parent’s duty to financially support their children ends either upon their child’s emancipation, marriage, their child turning age 18 and no longer being enrolled as a full-time high school student or age 19. Unless a parent specifically agrees to pay for college education expenses for their children and that agreement is included in a stipulated order filed with the court, neither parent has a legal obligation to pay for their children’s college education expenses and no court can require a parent to do so over their objection. 14. How is spousal support calculated by the court? In California, spousal support is divided into two distinct categories: a. Temporary Spousal Support b. Permanent Spousal Support The purpose of each type of spousal support differs as well as the factors the court considers in determining the amount of spousal support that is ordered. Temporary Spousal Support Temporary or interim spousal support is typically requested by the supported spouse at the outset of a case through the filing of an order to show cause or noticed motion with the court. The purpose of temporary spousal support is to assist the supported spouse in maintaining the “status quo” financial circumstances that existed at the time of the parties’ separation while the divorce case is being resolved. The payments are considered to be temporary in nature because a temporary spousal support order will either expire after a short duration or will be replaced by a permanent spousal support order at the trial or settlement of the case. In determining whether or not temporary spousal support is appropriate, the court looks to the parties’ financial circumstances at the time of their separation. Some counties in California have created formulas for calculating the amount of a temporary spousal support order which will often be calculated using the same computer programs used by the courts to determine child support. However, unlike child support, the courts are not bound to follow any specific guidelines when determining the amount of temporary spousal support. Temporary spousal support is not a guarantee for either party. If the parties are involved in an extremely short-term marriage, or if their earnings from employment are roughly the same, then a court may decline to award any temporary spousal support. Permanent Spousal Support Unlike temporary spousal support, permanent spousal support is typically ordered at the end of the case either at trial or by stipulated agreement of the parties. The purpose of permanent spousal support differs from that of temporary spousal support. The court cannot use any type of formula or guideline calculation to determine permanent spousal support. The analysis is done by the court by taking more of an historical look into the financial circumstances that existed between the parties during the marriage and then determining whether or not both parties are able to support themselves going forward into the future at the level that existed during the marriage. The court’s analysis involves considering a variety of factors. These factors include: 1. The extent to which each party’s earning capacity is sufficient to maintain the standard of living established during the marriage; 2. The contributions of the supported party to the paying party’s education, training, career position, or professional license; 3. The ability of the supporting party to pay spousal support; 4. The needs of each party based on the standard of living established during the marriage; 5. The obligations and asset, including separate property, of each party; 6. The duration of the marriage; 7. The ability of the supported party to engage in gainful employment without interfering with the interests of dependent children; 8. The age and health of the parties; 9. Any history of domestic violence between the parties; 10. The immediate and specific tax consequences to each party; 11. The balance of the hardships to each party; 12. The goal that the supported party become self-supporting within a reasonable period of time (usually one-half the length of the marriage) 13. Any criminal conviction of an abusive spouse 14. Any other factors the court deems just and equitable. If there is a significant disparity between the parties’ financial circumstances, then a court will likely order some level of permanent spousal support. However, in ordering permanent spousal support, the court has the ability to require the supported spouse to not only make reasonable and diligent efforts to become self-supporting within a reasonable period of time, but the court may set a specific date when they expect the supported spouse to be self-supporting and terminate the spousal support order at that future date. This date usually is not allowed to exceed one-half the length of the marriage, except in marriages lasting longer than ten (10) years where the court has the ability to extend this time period. Simply put, neither temporary nor permanent spousal support is guaranteed to either party. Furthermore, if the courts order spousal support paid to a party, the courts will commonly expect the supported party to become self-supporting within a reasonable period of time. It is a common misconception that a long-term marriage (a marriage longer than ten (10) years) means that a supported spouse is entitled to “lifetime spousal support.” That is simply not the case in California. 15. Can I modify permanent spousal support? In most cases, yes. In general, spousal support orders or agreements are modifiable unless the specific terms of an agreement states that the spousal support award is to be “non-modifiable”. The procedure to modify a spousal support order is initiated by filing an order to show cause or noticed motion with the court. A “permanent” spousal support order may only be modified retroactively to the date of filing of the order to show cause or noticed motion. Therefore, a spousal support order cannot be modified for any time period prior to the filing of the order to show cause or noticed motion. A spousal support modification may only be granted if the party seeking modification shows a “material change of circumstances” since the most recent order. Absent a change of circumstances, a motion for modification would be nothing more than an impermissible collateral attack on a prior final order. As with the determining of initial permanent spousal support, the court must weigh and consider all of the factors set forth above in the permanent spousal support section that bear upon whether or not a material change in circumstances has occurred warranting a modification of the spousal support orders. Factors that a court may consider to be a change in circumstances would include a payor spouse’s reduction in income or loss of employment through no fault of his or her own, a supported spouse’s failure or refusal to seek employment within a specific time period ordered by the court, a supported spouse’s receipt of assets or income (e.g., inheritance, property, etc.) which impacts their need for support, a disability or injury to either spouse, etc. A payor spouse should beware that if they purposely or intentionally try to reduce their income in an effort to modify spousal support, the courts will view these actions with extreme caution and they have the discretion to deny a requested downward modification, keeping the support order at the current level on the basis of the payor spouse’s earning capacity. In addition, the passage of time, alone, is not a sufficient basis to modify spousal support. 16. Can I terminate permanent spousal support? With respect to termination of spousal support, this may be accomplished through a variety of ways. By operation of law, the death of either party or the remarriage of the supported spouse automatically terminates a spousal support order. In addition, when determining the initial permanent spousal support orders, courts have the ability to determine the specific length of the spousal support order in appropriate cases. Thus, they have the ability to set a specific date in time in the future where spousal support will terminate automatically. If we are representing a payor spouse, we make a concerted effort to request that the court set a specific date for termination of spousal support at the earliest possible time. This dispenses with the need to file a motion to terminate spousal support in the future. In marriages of short duration (less than ten years), spousal support generally does not extend beyond one-half the length of the marriage. In marriages of long duration (more than ten years), the courts cannot terminate jurisdiction over spousal support at the time of trial and they are not limited by the one-half the length of the marriage requirement. This usually means that, where permanent spousal support is ordered by the court in a long-term marriage, a post-judgment order to show cause or noticed motion most likely will need to be filed in the future in order to terminate spousal support. In determining whether or not a termination of spousal support is warranted, the court must look at all of the factors that bear upon the existing spousal support order. This will include an assessment of whether or not the supported spouse has made efforts to seek work and/or become self-supporting, the length of time support has been paid, the assets of the supported spouse and whether or not they can assist in providing financial support, any co-habitation with a member of the opposite sex by the supported spouse, and the ability of the payor spouse to continue paying spousal support, including the payor spouse reaching legal retirement age. As with any modification of spousal support, the passage of time, alone, is not a sufficient basis to terminate spousal support. It is particularly important to note, however, that even in long-term marriages, there is no such thing as “lifetime spousal support.” California appellate decisions have held that there is an absolute right for a payor spouse to retire at age 65. 17. How long do I have to live in a county before filing for divorce in that county? To file for divorce in California, either you or your spouse must have lived in: California for the last 6 months, AND The county where you plan to file the divorce for the last 3 months. If you and your spouse have lived in California for at least 6 months but in different counties for at least 3 months, you can file in either county. If you don't meet the residency requirement, you can still file for a legal separation. Once enough time has passed so that you meet the residency requirement for a divorce, you may file an "amended petition" and ask the court for a divorce. 18. What's the difference between a divorce, a legal separation, and an annulment? A divorce (also called "dissolution of marriage" or "dissolution of domestic partnership") ends your marriage or domestic partnership. After you get divorced, you will be single, and you can marry or become a domestic partner again. If you get divorced, you can ask the judge for orders like child support, spousal support, partner support, custody and visitation, domestic violence restraining orders, division of property, and other orders. For married persons to get a divorce, you MUST meet California 's residency requirement. A legal separation does not end a marriage or domestic partnership. You can't marry or enter into a partnership with someone else if you are legally separated (and not divorced). A legal separation is for couples that do not want to get divorced but want to live apart and decide on money, property, and parenting issues. Couples sometimes prefer separation for religious reasons. You do not need to meet California's residency requirement to file for a legal separation. If you file for a legal separation, you may later be able to file an amended petition to ask the court for a divorce-after you meet the residency requirements. In a legal separation case, you can ask the judge for orders like child support, spousal support, partner support, custody and visitation, domestic violence restraining orders, or any other orders you can get with a divorce case. An annulment (or "nullity of marriage" or "nullity of domestic partnership") is when a court says your marriage or domestic partnership is NOT legally valid. A marriage or domestic partnership that is incestuous or bigamous is never valid. Other marriages and partnerships can be declared "void" because: of force, fraud, or physical or mental incapacity; one of the spouses or partners was too young to legally marry or enter into a domestic partnership; or one of the spouses or partners was already married or in a registered domestic partnership. Annulments are very rare. If you ask to have your marriage or domestic partnership annulled, you will have to go to hearing with a judge. 19. What can I do to make my case faster and cheaper? Planning your case can save you time and money. Before you start your case, consult with an attorney and develop a comprehensive case plan based on your goals, the facts in your case and the applicable law. After you start your case, work informally with the other side in exchanging information and documents in order to avoid "discovery battles" and so that both parties can be prepared for a trial. 20. Are there different types of divorces? Yes. Divorces can be contested or uncontested. If a divorce is uncontested and meets specific requirements, a divorce may be obtained quickly by filing for a summary dissolution. You can get a summary dissolution if you and your spouse or domestic partner:
If you do not meet the requirements for a summary dissolution, but you and your spouse can agree about how to handle money, property, and parenting, you have an "uncontested case." You also have an uncontested case, if your spouse or domestic partner will probably not file any forms in court disagreeing with your requests. If your spouse or domestic partner fails to file a Response in the case (defaults), your case can be completed as an uncontested case even if you and your spouse or domestic partner do not agree on everything. Most uncontested cases can be handled by mail and brief contacts with a judge. You may not have to see the judge at all. If your spouse or domestic partner does NOT agree to all terms of your divorce, then you have a "contested case." You will have to talk to the judge 1 or more times to resolve your disagreements. If your case starts out or later becomes contested, you may be able to come to an agreement through negotiation, mediation, or some other process. If so, your case then becomes uncontested. If your case becomes uncontested, you can finish your case more quickly and at a lower cost. For a consultation with The Law Offices of Burch, Coulston & Buncher, L.L.P., call 949.202.5728 or 866.909.6059, or contact us online. |
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The Law Offices of Burch,
Coulston & Buncher, L.L.P.
8001 Irvine Center Drive Suite 1060
Irvine, California 92618
Phone: 949.202.5728
Toll Free: 866.909.6059
Fax: 949.502.4405
Coulston & Buncher, L.L.P.
8001 Irvine Center Drive Suite 1060
Irvine, California 92618
Phone: 949.202.5728
Toll Free: 866.909.6059
Fax: 949.502.4405
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