Common Divorce Questions Answered

Over the years, we’ve discovered that many clients come to our San Diego divorce legal 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. It’s important to note that the answers in this San Diego, California divorce law FAQ are for informational purposes only. If you need legal advice, the San Diego, California divorce lawyers at Smith Family Law are here to help. Every situation is different, and nothing can replace personalized legal representation. Contact our San Diego, California divorce law firm today to get your questions answered and to take the next steps.

What’s the first step in a California divorce?

The first step to file for California divorce, formally and legally is to submit a Petition for Dissolution to your county court. Before you can file or submit any divorce paperwork in California, you’ll need to meet California’s residency requirements for divorce. One of the spouses filing for divorce in California must have resided in California at least six months before filing for divorce.

There are two ways couples can file for divorce in California.

If you and your spouse have no minor children, own no property, own less than $57,000 in marital and separate property, and owe no more than $7,000 on your car, and if you and your spouse agree about all aspects of your divorce, you can file a form known as a Joint Petition for Summary Dissolution. You and your spouse can follow the instructions on the form and submit the petition together. However, while it might be tempting to try for a do-it-yourself divorce if you find yourself in this situation, it’s still a good idea for each of you to have the form and documents reviewed by your own divorce lawyer before you submit it. The decisions you make during your divorce are final, and the financial decisions you make can affect you for years to come. It’s important that you get this right. The San Diego, California divorce lawyers at Smith Family Law can review your documents, catch errors, and help you submit these documents with the peace of mind that you’ve covered all your legal bases.

If you have minor children, own a home, or have assets that exceed $57,000 in value, one partner will need to file a Petition for Dissolution. Usually, individuals have their attorney help them fill out this form, because in the process of filling out these forms, you’ll need to make requests regarding child custody, child support, spousal support, and distinguish between separate and community property. Your divorce lawyers will help you submit required accompanying documentation, which can include a parenting plan, property agreements, and more.

In this situation, to initiate a divorce formally and legally in San Diego, 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.

Yet, filling out a petition for divorce is just the first legal step that an individual or their attorney will take to initiate the formal and legal divorce process. Filling out a petition to file for divorce involves addressing complex legal questions. And for many individuals, the first step in filing for divorce happen way before any petitions are filed. This includes conversations with your spouse and meetings with your divorce lawyer before you file any paperwork.

How long will it take to get divorced in California?

California has a six-month cooling off period before any divorce can be finalized. Even if you agree about everything and file a joint petition for divorce, it will take six months from the date you file your paperwork for your divorce to be finalized. The San Diego, California divorce attorneys at Smith Family Law can work with you to help you submit paperwork in a timely manner so that you can move forward with your life.

When should I contact a San Diego divorce lawyer in this process?

Ideally, individuals might want to reach out to a lawyer when they are thinking about divorce, and even before they have a conversation with their partner about wanting to file for divorce. As soon as you have a conversation with your spouse about divorce, your spouse can take steps and do things that can affect how your divorce unfolds and even impact your ability to secure the legal representation you want. By speaking to a San Diego divorce attorney before you even have the conversation, you can start to take steps to protect your rights, like retaining the attorney you want, gathering important bank statements and paperwork, and even putting a plan in place for how you’ll file for divorce. If you’re thinking about divorce and still in the planning and information gathering phase, it’s never too soon to give the divorce attorneys in San Diego, California at Smith Family Law a call.

What documents should I gather when working with my San Diego divorce lawyer?

Your San Diego, California divorce lawyer will let you know what information they will need to move your divorce forward, but some important documents you might want to gather include: bank statements, debt statements, mortgage statements, titles and deeds, insurance paperwork, investments, your will, and any other financial or asset statements you might have.

Will we need to go to court, or is mediation possible?

Not all divorces end up in court. Some divorces can be settled outside of court through mediation or other alternative dispute resolution processes. The divorce lawyers in San Diego, California at Smith Family Law, after learning more about your situation, can offer guidance about possible ways forward. If you and your former spouse can work together, you may be able to file jointly for divorce and avoid a court battle.

What are community assets and liabilities?

Community assets are any assets you have acquired during your marriage. Income you have earned during your marriage and put in a savings account could be considered a community asset. Property you purchased during your marriage might also be considered a community asset. Community liabilities are any debts either party has acquired during the marriage. This can include credit card debt, mortgage debt, car payments, and sometimes even student loan debt. The divorce lawyers in San Diego, California at Smith Family Law can help you identify your community assets and liabilities, and help you develop a plan to divide assets.

What are separate assets and liabilities?

Separate assets are any assets, property, or savings you acquired before you were married. Separate liabilities are any debts you acquired before you were married. Some things, like gifts or inheritances might be considered separate assets, even if you received them during your marriage. If you earned income, interest, or capital gains on a property or investment you separately own, these earnings might also be considered separate property. Yet, sometimes property, income, and savings can become comingled during a marriage and become marital or community property. This is why many individuals work with a San Diego, California divorce lawyer to help them develop a plan to divide property and assets. A prenuptial agreement can clarify which property would be considered separate or shared during a divorce.

What is the difference between legal and physical custody?

Legal custody involves a parent’s right to make decisions for their minor children. In a divorce, often both parents retain legal custody of the children. Physical custody refers to where a child will reside after divorce.

Divorce often involves the question of physical custody, though there may be cases where legal custody may become an issue. For example, in cases of domestic violence, one spouse may request both legal and physical custody of the children. If a parent has abandoned his or her children or hasn’t acted as a parent to the children, then a parent may sometimes request both legal and physical custody.

The San Diego, California divorce lawyers at Smith Family Law can help you navigate custody questions and custody issues that can arise with divorce.

How is child support determined in California?

Child support is determined using child support worksheets and tables that base child support payments on both parent’s earnings. How much a parent will have to pay in child support will depend on how much he or she earns, how much time the children spend with both parents, and other factors, like the other parent’s income, any special needs the children may have, and how the parents will divide time with the children in the parenting plan. The San Diego, California divorce lawyers at Smith Family Law can answer your specific child support questions, help you understand how much you might have to pay or how much you might be owed in child support, and help you address any issues with child support you might have.

What is spousal support?

Spousal support, also known as alimony, is money paid by one spouse to another spouse after divorce to support them financially. Spousal support can be permanent (rare) or temporary. Usually, spousal support is designed to help a lower-earning partner get the work training or education they need after divorce so they can eventually stand on their own two feet. If you have questions about spousal support, the divorce lawyers in San Diego, California at Smith Family Law can help.

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.

In most instances, this means that a spouse’s bad behavior won’t factor into how property and assets are divided after divorce. There are some exceptions to this, however. Even though California is a no-fault divorce state, if your partner used martial resources to support their affair while you were married, you might be entitled to compensation for the dissipation of marital funds. If your partner was violent toward you or your children, or if there was domestic violence, then this might be a factor when a judge makes decisions about child custody. If a partner’s violent actions resulted in physical injuries, loss of property, or other damages, you might be able to seek compensation for these losses as well. The divorce lawyers in San Diego, California at Smith Family Law can help you navigate these unique divorce challenges.

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.

It’s important to note that in most cases, the courts favor child custody arrangements where the children continue to enjoy a relationship with both parents.

What goes into a parenting plan and what kind of parenting plan is best?

A parenting plan is a legal document that specifies which parent will have legal and physical custody of the children. If both parents will have legal custody of the children, a parenting plan might specify which parent is responsible for making decisions for the children, and if both parents will make decisions about the children’s education and medical care, then the parents will often include instructions for how disagreements will be addressed. The parenting plan will specify where the children will live, whether custody will be divided 50-50, or whether one parent will have physical custody and the other parent will have vitiation rights. The parenting plan often includes detailed schedules about how the parents will share time with the children, how the children will be transported to and from visitations, and how schedule changes, emergencies, and other disputes will be addressed.

There is no single type of parenting plan that is “best.” The best parenting plan is the one that works for your specific family and that meets the best interests and needs of your children. When parents create a parenting plan, they often must consider many factors, including how far away the parents will live from one another, school schedules, and their children’s needs. A parenting plan can also change as children get older and their needs change. What works for a toddler may not work for a teen, after all.

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.

The divorce lawyers in San Diego, California at Smith Family Law are here to help.