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Divorce & Family Law FAQ
Frequently Asked Questions About Family Law in California
For over a decade, Attorney Stephen V. Smith has provided Californians with high-quality legal counsel. Our answers to your frequently asked questions can help you understand legal processes such as divorce, marital agreements, and more, so you can move forward in your case with confidence.
To contact our team and work with experienced family lawyers, contact us online or give us a call at (619) 431-3131.
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.
Even actions such as adultery cannot be used as grounds for divorce in California. However, the court may consider one spouse's behavior and actions, such as domestic violence, when determining the outcome of the divorce.
What's the Difference Between a Contested & 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 terms for their divorce, they must instead file for a contested divorce.
Generally, uncontested divorces are resolved using a divorce or marital settlement agreement developed by the parties. This agreement, which must be signed by both parties, contains their agreed-upon terms for the divorce, and can be incorporated or merged into the divorce decree by the court. Alternatively, contested divorces must be resolved in court through a trial.
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 Long Will My Divorce Take? How Expensive Will It Be?
The short answer is, "it depends." You must wait at least six months after filing to finalize your divorce in California, but a contested divorce can easily take a year or more to resolve.
Similarly, if you and your spouse can draft a marital settlement or divorce agreement and file for an uncontested divorce, your divorce may only cost a few hundred dollars. However, if you need to file for a contested divorce or have other complicating factors, such as needing to pay out marital debts, your divorce may cost thousands.
Consulting an attorney about the details of your marriage can help you get a more accurate estimate of how long your divorce may take to resolve and how expensive it will be.
How Does Property Division Work in CA?
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.
Using a prenuptial or postnuptial agreement can help you exert more control over the property division process.
How Are Spousal & Child Support Calculated?
Courts use a wide range of factors to calculate spousal and child support, including:
- The standard of living established during the marriage
- The age and health of the parties/parents
- The needs of the spousal/child support recipient(s), including medical conditions
- The employability of the spousal support recipient
- How a child/spousal support obligation would impact the payor financially
- The assets possessed by the parties/parents
An attorney can help you identify the best path forward in your child or spousal support case.
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.
Generally, courts award joint legal and physical custody under the assumption that it's healthy for a child to have an active relationship with both parents, although one parent may house the child a majority of the time.
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 must 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.
To schedule a consultation with one of our lawyers about your case, contact us online or give us a call at (619) 431-3131.
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