Law Offices of Robert BEttencourt

Divorce in California:

1. What is Joint Legal Custody?

Joint legal custody means that both parents have the legal right to make decisions concerning their children regarding education, medical care, and religion. California law encourages judges to award joint legal custody to both parents.

2. What is Physical Custody?

Physical custody involves where the child actually resides. The parent who does not have primary physical custody is usually awarded visitation rights. The non-custodial parent will usually be awarded specific periods of time. For example, alternate weekends, one overnight or evening during the week, one-half of the school vacations, one-half of the Holidays, etc. The facts and circumstances of each case, including the work schedules of the parents, have a significant role in determining the custodial arrangement.

3. How Much Child Support Will I Pay or Receive?

California law governs the amount of child support (and spousal support if applicable) to be paid by one party to the other. A common misconception people have is that they believe the higher income earning spouse will pay the lower income earning spouse a simple percentage of their income. Calculating child support is a complex calculation and people are advised to consult with an attorney on this issue.

4. How Long Will Child Support be Paid?

California law requires that child support must be paid until the child becomes 18, unless the child has not graduated from high school. In that case, child support continues until the child graduates from high school, but no later than the age of 19, whichever occurs first. Under current law, a parent is not required to support a child beyond the age of 19 unless the child is physically or mentally disabled. However, the parents can agree that child support continue while the children are in college (or otherwise beyond the age of 19), but this must be mutually agreed upon between the parents.

5. What Do I Do if the Other Parent Refuses to Pay Child Support or Spousal Support?

If the payor parent refuses to pay his or her child support or spousal support, you can take the steps necessary to levy or garnish his or her earnings from work. It is a relatively simple process. The party who is ordered to make payments will have the amount deducted out of his or her paycheck by the employer. If the payor parent is self-employed, this becomes a more difficult process.

6. Who Can File for Divorce?

California is a “no-fault” state which means that any spouse may file a divorce in California based upon irreconcilable differences. You do not need to prove anything other than that you want a divorce in order to obtain a divorce in California.

7. Are There Any Residency Requirements to File a Divorce in California?

Yes. At least one spouse must have been a resident of the state for at least six months and a resident of the county for at least three months immediately prior to filing your Petition for Dissolution of Marriage.

8. How Does the Divorce Process Work?

One spouse files the Petition for Dissolution of Marriage. The other spouse has 30 days from the date he or she is served to file a Response. It is common for one spouse to file a Motion or Order to Show Cause with the Court requesting some temporary orders which can cover the following issues: child support, spousal support, possession of the family home, child custody and visitation, restraining orders, and attorney fees. A hearing on those issues is usually set within 30 days of the date of filing. Thereafter, the parties are required to exchange information concerning their assets and debts and income and expenses. The parties will usually then engage in some settlement discussions. If the settlement discussions are unsuccessful, the case is usually then set for a trial where the unresolved issues are decided upon by a Judge. If the settlement discussions are successful, the parties or their attorney can prepare a Marital Settlement Agreement and file a Judgment with the Court to complete the divorce process.

9. What Happens to the Children if the Parties Cannot Agree?

You will sent into the Family Law Court Mediation process. Both spouses (and their attorneys) will meet with a family court mediator to discuss your individual situation. The Mediator will attempt to create a shared parenting plan that it is in the “best interests” of the child or children. If either party does not agree with the Mediator’s recommendation, the matter can be set for trial on that issue alone.

10. What is the Difference Between Community Property and Separate Property and How is it Divided?

Community property includes all asset acquired or earnings acquired during the term of the marriage from the earnings from the marriage. Separate property means all assets acquired before marriage or during the term of the marriage by gift or inheritance. Generally speaking, all community property will be divided evenly between the parties. All separate property will remain the property of that party following the divorce. Determining whether an asset or debt is a community property asset or debt, especially where assets have been co-mingled, can be a complex legal analysis.

11. Am I Entitled to a Part of My Spouses Pension or Retirement?

All pensions or retirements earned or accrued during the term of the marriage are community property (unless the parties executed a Prenuptial Agreement). Therefore, it would be subject to division in the divorce.

12. Who Gets the Family Residence?

Generally speaking, one spouse may buy out the other spouse of the equity in the home. If neither spouse is willing or able to do so, the house will be listed for sale and sold, and the net proceeds will be divided evenly between the parties. However, where minor children are involved, the Judge may allow the custodial parent to live in the home with the children for a specified period of time after the divorce is finalized. The spouse that resides in the home is usually required to pay all expenses of the home including the mortgage, property taxes, insurance and maintenance. The house is then typically sold when the children no longer reside in the home.

13. How are Professional Licenses or Educational Degrees Divided in a Divorce?

The spouse that earns the license or degree obviously keeps the license or degree and the other spouse does not receive a sum of money for the license or degree. However, the other spouse may be entitled to more child support or spousal support due to the higher earning capacity of the spouse that earned the license or degree. The community estate is reimbursed for the costs of acquiring the degree or license which includes the costs of tuition, books, etc.

14. Will I Pay or Receive Spousal Support?

In California the law gives the Judge discretion whether to award spousal support as well as the dollar amount of the spousal support. Generally speaking, the lower earning spouse will receive spousal support for approximately one-half the term of the marriage. However, if the marriage was a long-term marriage, spousal support can continue indefinitely.

15. How Long Will it Take for Our Divorce to be Finalized?

The soonest you can become legally divorced is six months from the date the other party is served with the divorce papers. However, the parties can reach an agreement on all issues (including the division of the assets and debts, child support, spousal support, etc.) at any time, even well before the six month time period lapses. If the parties are able to resolve all issues, the parties, or their attorneys, can prepare a Marital Settlement Agreement, and file it with the Court. However, neither party can remarry until you receive a Judgment terminating the marriage.

16. How Do I Get a Restraining Order?

You must file with the Court and serve on the other party the appropriate papers to set a hearing date before the Judge. At the hearing the Judge will determine if the facts are sufficient to grant the restraining order. If so, the restrained party cannot contact, annoy or harass the protected party typically for a three year period.

17. Do We Have to Go to Court If We Agree on All the Issues?

No. If you are in complete agreement on all the issues in your case, it is not required that you ever go to the courthouse to bring your case to