The Right Legal Advice When You Need It the Most

Photo of the legal team at Smith Family Law APC

Common Divorce Questions Answered

Over the years, we’ve discovered that many clients come to our San Diego office with the same general questions. While we are always willing to answer any questions our clients have for us, we wanted a page that could be a great resource for anyone that needs some quick answers about a family law matter.

What’s the first step in a California divorce?

To initiate a divorce, one party – called the “petitioner” – must file a Petition for Dissolution with their county court. They must then serve the petition to their spouse – called the “respondent” – notifying them of the divorce. After being notified, the respondent has 30 days to file a response (if they disagree with the terms set forth by the petitioner) or to waive their right to respond (if they agree with the petitioner’s terms).

If the respondent fails to respond within 30 days, the court can proceed with the divorce, entering a “default” judgment on the petitioner’s behalf.

Is California a no-fault divorce state?

Yes, California is a no-fault divorce state. You only need to cite an “irretrievable breakdown” in your marriage to file for divorce.

What’s the difference between a contested and uncontested divorce in California?

To file for an uncontested divorce, the parties must agree on terms for their divorce and divorce-related processes, including property division, alimony, child support, and child custody. If the parties disagree on the terms of their divorce, they must instead file for a contested divorce.

Alternatively, contested divorces must be resolved in court through a trial.

What’s ADR?

The acronym “ADR” stands for “alternative dispute resolution.” Legal methods intended to help parties resolve their differences without resorting to a trial in court, such as mediation, collaborative law, arbitration, etc., all qualify as forms of ADR.

How does property division work in California?

California uses community property division laws, meaning that parties must divide marital property (generally defined as any property acquired post-marriage, with the exception of some separate assets such as inheritances) equally. This applies to both assets and liabilities, meaning that parties frequently find themselves taking on more or less of an asset or liability than they feel is fair.

Will I get sole custody of my child?

In any child-related legal dispute, the court’s priority is always ensuring that the child’s best interests remain protected.

However, if one parent is deemed “unfit” by the court due to actions such as family violence, the other parent may receive sole custody of their child.

What can I include in a marital agreement?

Marital agreements can include terms for what property is considered separate and marital, and how marital property should be distributed in the event of a divorce. A prenup or postnup can also allow parties to waive spousal support obligations.

However, parties cannot establish terms for child custody and support using a marital agreement. Matters of child custody and support can be decided using a marital settlement agreement but must be settled as part of the divorce process, not in a prenuptial or postnuptial agreement.

What makes a marital agreement invalid?

For a marital agreement to be valid, both parties must have their own legal representation, have at least a week to review a written draft of the agreement, and completely disclose their owned property to one another while drafting the agreement.

If any of these requirements are not met, the agreement is invalid. Additionally, agreements secured through coercion or threats, or by fraud (such as one party hiding their assets) are invalid. An agreement can also be deemed invalid if a court considers it “unconscionable,” meaning it is weighed too heavily in one party’s favor to be an equitable or fair agreement.

Have A Question We Didn’t Answer?

If you still have questions then contact us at (619) 431-3131 or our online appointment portal and schedule a free consultation today.