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California Divorce Guide

Overview

Divorce is never easy, but there’s also no reason to make it any more difficult than it needs to be for you and your family. Moshtael Family Law is committed to finding win-win solutions for the families we work with, and we work expeditiously to help you resolve your matter as soon as possible. As you begin to contemplate getting divorced and starting a new chapter for you and your family, we hope that this guide will provide answers to some of your questions and serve as a reference throughout the process. If you have any questions or need assistance in understanding your rights and obligations in a divorce or navigating the divorce process, please contact us for a complimentary consultation. We have helped thousands of families across Southern California to resolve their matters thoroughly, efficiently, and affordably.

Common Legal Terms

Alimony: A financial provision for a spouse ordered by the court. This is also known as spousal support.

Annulment: An annulment nullifies a marriage – it is a legal action that confirms that a marriage was invalid because a party is of unsound mind, too young to consent, or the marriage was forced or fraudulent and a variety of other factors.

Child Custody: The responsibility for the care of a child awarded by the court during divorce or separation
proceedings.

Child Support: A financial arrangement following a divorce that ensures children in a divorce are
properly provided for by a spouse, regardless of custody.

Divorce Decree: This is the court order regarding a divorce that lays out the terms of the divorce-related to the division of assets, custody, and any other related matters.

Dissolution of Marriage: Dissolution of marriage is a more formal term for a divorce, it is the termination of a marriage by legal action.

Full Custody: A custody situation where one parent has the majority of the custody responsibility for a child.

Joint Custody: Custody of a child that is shared by both parents.

Marital Assets: Any property including houses, cars, and insurance that was acquired during the course
of a marriage.

Marital Settlement Agreement (MSA): A contract that divides debts, assets and properties, and details
spousal support and child custody arrangements in an uncontested divorce.

Paternity: Refers to determining who is a person’s father.

Postnuptial Agreement: A written agreement between a couple following their marriage which delineates ownership of assets and property should a marriage end in divorce.

Prenuptial Agreement: A prenuptial agreement is a contract that a couple creates and agrees upon before a marriage or civil union that delineates ownership of assets and property should the marriage end.

Spousal Support: Spousal support is payments to an ex-spouse that is awarded by the court and detailed in the official divorce decree or separation agreement. Spousal support is also called alimony.

Frequently Asked Divorce Questions

How long will it take to get divorced?
Every divorce is different – it really depends on the issues involved and how long it takes both parties to come to an agreement on particular issues. By law in California, there is a six-month waiting period between the time a party files for divorce and the time the divorce is finalized. Beyond that, it depends on the degree of conflict or complexity of the divorce, with some divorces taking a year or longer before they are finalized.

Do we have a contested or uncontested divorce?
There are two primary types of divorce – contested, and uncontested. If you and your spouse agree on all issues relevant to your case, such as child custody, the division of debts and assets, and spousal support, your divorce may proceed as an uncontested divorce. Uncontested divorces are less common in situations where there are children or sizeable marital assets, or if you have been married for a considerable amount of time. It is advisable for you to consult with an attorney even if you plan to agree to an uncontested divorce – it is very important for you to protect your interests and know your rights. An attorney can also review advise you on the terms of the marital settlement agreement (MSA) in an uncontested divorce.

A contested divorce is one where the parties do not agree about getting divorced at all or cannot agree upon the terms of the divorce as related to assets, debt, spousal support, and custody. Entering a contested divorce does not mean you are going to battle or entering a war zone. While contested divorces can be intense and emotionally charged, they foster stable and permanent solutions to prevent a need for post-judgment action by either party. Factors that contribute to and complicate contested divorce issues include division of interest in a family business or professional practice, child custody timeshare disputes, or allegations that a spouse is hiding or diverting marital assets.

Should I wait until I see if I can reach an agreement with my spouse before I file for divorce?
Even if you are planning to work with your spouse to come to an agreement and settle all issues, you should consider filing for divorce, as it then puts into effect automatic temporary restraining orders, which in essence, provide protection for you if your spouse tries to liquidate bank accounts, sell the property, or otherwise mishandle community assets. In addition, the restraining orders prevent your spouse from moving out of state with your child without consent or a court order granting permission.

Which property belongs to me and what belongs to my spouse? Community property overview

California is a community law state, which means that all marital assets (property acquired during the marriage) are considered to be the property of both spouses, with very few exceptions. A few of the exceptions include inheritance or appreciation from earnings or assets obtained prior to the marriage. In California, it doesn’t matter which spouse earns more money than the other – all earnings belong evenly to both spouses.

There are certain assets that are harder to negotiate because it is harder to determine their value. Such assets include stock options, fine art, collectibles, and antiques. Family businesses and professional practices are often also more challenging to evaluate and divide evenly. Another complication in dividing community property can occur if one spouse believes the other is being irresponsible or wasting money or acquiring debt that should not be attributed to the marriage.

If I am a stay at home parent, how can I pay for my divorce?
If you are the lower wage earner – i.e. your spouse is the “breadwinner” in the family, your attorney can ask for an advance payment from your spouse to help pay for the proceedings. In fact, a judge can order the spouse who makes more money to assist with the other spouse’s attorney fees in advance. In this situation, if you are working with a savvy attorney, they will file for a Request for Order hearing, which asks the court for interim orders to work out attorney fee advances, as well as other temporary provisions, such as possession of the family residence and child custody and visitation.

How much will my divorce cost?

Every situation is different, and the cost of the divorce will often depend on how quickly you and your spouse can come to an agreement. Responsible law firms will help their clients by setting up an estimated monthly budget and ensuring that their client is comfortable with that budget. I’m fighting with my spouse all of the time.

Can I move out of the house?
Unless you need protection from a domestically violent spouse, there are risks to moving out of the family residence during a divorce proceeding. A lawyer can discuss the risks involved with you and your particular situation, but generally, if you have children and do not have temporary custody of your children or visitation orders, it may not be in your best interest to move out of the family home or to remove your children from the family home. If you do decide to move out of the family home, it is not advisable to pull your children out of school because of a move. Not only is this action viewed negatively by the court, but it could be damaging when you are later negotiating custody.

How will court decide who has custody of our children?
Every situation is different, but in California, the court will look at the age of the child, the health of the child, the ability of each parent to care for the child, the child’s ties to their home, school, and community, and the emotional ties between the child and both parents. A judge will work to determine what is in the child’s best interest.

Can my child determine which parent he/she wants to live with?
In California, a child who is 14 years or older can share their preference with the court, and the court must take their preference into consideration unless it is determined that it is not in the child’s best interest.

How do I know how much money I will get in alimony?
There are several factors that go into determining alimony and spousal support, including the income of each spouse as well as the earning capacity of each spouse. If one spouse doesn’t work full time but is employable full time based on their skill level, the court may decide that they are capable of earning more and use an estimate of their earning capacity in their spousal support determination. The court will also consider the “Marital Standard of Living,” which under law says that the person receiving spousal support is entitled to live at, or perhaps below, the standard at which they lived at when they were married, however, they are not entitled to live beyond the standard of living they maintained during the marriage.

 

What Questions Should I Ask My Lawyer?

When you are looking to hire a lawyer to help with your divorce, you should consider their background, and experience with some of the issues you anticipate that you will face in your divorce. You will also want to ensure that they are in good standing with the State Bar of California (you can check this at www.calbar.ca.gov) and that they have references from satisfied clients. In addition, you may want to consider asking your lawyer the following questions:

  • How long do you think my proceedings will take?
  • Do you have experience with the issues my divorce may present?
  • How do you bill your clients?
  • How do you communicate with your clients and provide updates?
  • Have you worked with clients at my income level?
  • Will you be working on my divorce or will it be someone else in your firm?
  • Do you know the family law judges who we may appear before?
  • Are you comfortable representing someone in my situation?
  • What will the time commitment be on my end in preparing documents for you and the court?
  • What steps should I take today that will help me be better prepared for my divorce?

 

Other Resources

The Superior Court of California County of Orange – Family Law
www.occourts.org/directory/family
Orange County Bar Association Family Law Corner
http://www.ocbar.org/OCLawyer/FamilyLawCorner.aspx
Orange County Child Support Services
http://www.css.ocgov.com/
California Department of Child Support Services
http://www.childsup.ca.gov/

This guide was produced by Moshtael Family Law. If you have any question or need some guidance during the divorce process, please contact Moshtael Family Law. We offer a free consultation and look forward to helping you and your family get a fresh start.

Orange County, Los Angeles County, San Bernardino County, Riverside County

Receipt of information on www.MoshtaelLaw.com is not intended to create, and receipt does not constitute, an attorney client relationship. The information is not intended to substitute obtaining legal advice from a California family law attorney. No person should act or rely on any information in this site without seeking the advice of an attorney.