Family Law Frequently Asked Questions
What is family law?
Family law generally involves issues surrounding a divorce, such as the termination of marital status; determining child custody, child support and spousal support; and the division of the parties' marital property. Family law issues are not limited to a pending divorce proceeding. For example, one party may ask the court for a modification of child support after the completion of a divorce.
How do I file for a divorce?
You or your spouse must have lived in California for at least six months and in your county of residence for three months before you file for divorce in that county.To commence divorce proceedings, you and your lawyer must file a Petition for Dissolution with the Clerk of the Superior Court. In the Petition you ask for various relief, such as division of community property, spousal support, child custody and child support.You also must have copies of the Petition and Summons personally delivered to your spouse. The Summons tells your spouse that he or she must respond to the petition for dissolution within 30 days. In the Response, your spouse indicates the areas of disagreement that need to be resolved by the court. For example, your spouse might object to your request for spousal support or sole custody of your children.
How much will my divorce cost?
Unfortunately, it is impossible to estimate how much a divorce will cost beforehand. The legal fees in a divorce proceeding will vary depending upon whether there are children of the marriage, the complexity of the parties' financial holdings, and the parties' willingness to settle disputed issues.
The best way to save money in a divorce matter is to minimize court appearances and resolve disputed issues by negotiation and settlement. It is also helpful to be as responsive as possible when your attorney asks you to provide financial information. You should monitor your attorney's monthly bills carefully, and feel free to ask questions if you are uncertain about any charges. Finally, it is important to contact your attorney as soon as possible if you develop a problem in paying your legal fees.
Can the court order my spouse to pay my attorney fees?
There are various situations in which the court may order your spouse to reimburse you for all or part of your attorney fees. The most common is where your spouse has a significantly higher income or greater assets than you. Such an attorney fee award will often be made at the initial court hearing along with a determination of interim child support and other issues. The court can also order your spouse to pay attorney fees if it finds that your spouse has been uncooperative or unwilling to reasonably settle your divorce proceeding. Finally, if your spouse has failed to pay child support, the court is required to order him or her to pay your attorney fees when you go to court to enforce the child support obligation.
What are the grounds for divorce in California?
California is a "no-fault" divorce state, meaning that you do not have to accuse your spouse of cruelty, adultery or anything else that caused your marriage to break up. Divorces are generally sought on the ground of "irreconcilable differences," meaning that you and your spouse no longer can make your marriage work. The consent of both spouses is not required for a divorce. Even if only one spouse believes that there are irreconcilable differences, the court will dissolve a marriage.
What kinds of relief can I get from the court right away?
If there are physical threats or violence in your marriage, you may be entitled to an emergency restraining order against your spouse. Your spouse may be temporarily ordered not to contact you or come within a certain distance of you, your residence and/or your workplace. In some cases, a spouse may be ordered removed from the family residence. Similarly, the court might issue an emergency restraining order preventing either of you from removing your children from the state, or from taking or concealing your marital assets. These emergency orders generally last from 20-25 days until there is a hearing on the matter with both parties present in court.
It is also possible to seek interim child support, spousal support, custody, and other orders at a hearing approximately one month from the date that divorce papers are first filed.
What happens next after I file for divorce?
After the temporary issues are settled, you and your spouse will begin to work on permanently resolving the issues raised in the dissolution. Before you are able to do so, you are required to exchange detailed information with your spouse about your assets, debts, income and expenses. These financial exchanges, called "declarations of disclosure," are designed to ensure that parties enter into fair settlements with full knowledge of the other party's finances.
Many people are surprised at how much financial information they are expected to gather as part of a divorce proceeding. This information often includes tax returns, pay stubs, bank statements and the like. In many cases, one of the most expensive aspects of a divorce may be the time that a lawyer must spend collecting financial information from his or her client. Thus, in order to keep legal fees to a minimum, it is important that you are as responsive as possible when your attorney asks you to provide financial information.
In some instances, more detailed information may be needed from the other spouse. If one party owns a business, for example, the other party may conduct "discovery" to obtain documentation that will allow him or her to determine the value of the business or the income available from that business. An expert accountant or appraiser may be retained to assist in these issues. In some cases, it may be necessary to subpoena information from third parties, such as banks or financial institutions, in order to acquire financial information about the other party.
How long will it take for my divorce to be completed?
One of the aspects that people may not realize is that issues in divorce proceedings are often resolved in a piecemeal basis. For example, child custody issues may be resolved through a court mediation process, while property division and spousal support issues may be resolved through negotiation between the lawyers or at trial. Child support is often determined at an initial support hearing. The legal termination of your marital status, which allows you to remarry, cannot occur any earlier than six months from the day that your spouse is served with the Petition and Summons. Thus, the date that your marriage is dissolved may be different from the date that other issues surrounding your divorce are resolved.
To the extent that parties are unable to resolve the outstanding property and support issues, a court trial may be necessary. In Marin County, the parties are first required to attend a settlement conference with a panel of experienced family law attorneys in an attempt to come to an agreement. If no settlement is reached, then the case will be set for trial. Trials may be conducted on the few remaining disputed issues after other issues have already been resolved by the parties. However, court trials can be very expensive, so it is best to resolve disputes by settlement if possible.
What is a legal separation?
A legal separation is similar in most ways to a divorce except that your marriage is not legally terminated. Property division, child custody, child support and spousal support issues can all be determined in a legal separation proceeding. However, you are not permitted to remarry after having obtained a judgment of legal separation. While parties most often seek legal separation for religious reasons, there may be tax or other reasons to seek a legal separation as well.
What is an annulment?
An annulment is a legal determination that your marriage never existed. However, the grounds for obtaining an annulment are very limited. You may be able to get an annulment if you married at a young age without the consent of your parents or guardian, if either of you were physically incapable of entering into the marriage state, if either of you were of unsound mind, or if certain types of fraud or deceit were involved in the decision to become married.
Should I be represented by a lawyer?
An experienced family law attorney is used to dealing with issues that arise during divorces and can assist you in the process of filing papers and appearing in court. A lawyer can advise you about how much child or spousal support you should expect to pay or receive. A lawyer can also assist you in working out a custody and visitation arrangement suitable to your personal situation.
Since community property laws can be very complicated, a lawyer can help you decide which of your belongings are community property and which are separate property. Finally, your lawyer can assist you in putting your property settlement agreement into writing and getting a divorce judgment approved and finalized by the court.
How is child support determined?
The amount of child support that one party must pay to another is based upon a complicated statutory formula. Attorneys and the court system use computerized programs to calculate the appropriate child support amount, which is based upon the following three factors:
- The number of children of the marriage;
- The percentage of time that each parent has custody of the children; and
- The "net disposable income" of each parent.
Payroll deductions, "add-on" expenses such as child care and medical costs, and each party's income tax filing status, can also significantly affect the final child support figure.
How is child support taxed?
Child support is not deductible to the person paying the child support, and is not taxable to the person receiving the child support. (This is the opposite of the way in which spousal support is generally taxed.)
When can I go to court to change the child support amount?
Child support awards are always modifiable by the court upon a showing of material change of circumstances, even after a divorce has been completed. In most cases, a party will seek a modification of child support when his or her income has significantly decreased since the last support hearing, or the other parent's income has significantly increased. A significant change in custody or visitation time might also warrant a modification of child support. A lawyer can help advise you if a modification proceeding would make sense in your case.
How can I found out how much my former spouse is earning?
If you are considering going to court to modify child support, it is often useful to first find out how much your former spouse is earning. The law provides that a child support recipient is entitled to annually request tax returns, pay stubs, and an "Income and Expense Declaration" from a child support obligor, even if there is no legal matter pending. This is a useful way of determining whether it is worthwhile to seek a child support modification against your former spouse.
What if my spouse fails to pay child support to me?
If your spouse is not paying the court-ordered child support amount, it is important to keep good records of the amounts paid, the dates of payment, and the amounts owed. It is also a good idea to keep bank statements and cancelled checks reflecting all amounts paid by your spouse. This will make it easier to determine and prove the amount of the support arrearage.
Any past-due child support bears interest at the rate of 10% per year. You are also entitled to ask the court to order your spouse to pay for your attorney fees in enforcing a support arrearage. There may be other penalty provisions that are applicable to your case as well.
It is frequently possible to obtain an "earnings assignment order" requiring your spouse's employer to pay child support directly to you. It may also be possible to attach or levy the other parent's bank or investment accounts to collect on a past-due child support award. Additionally, a child support arrearage may be recorded on the title of the parent's real estate so that the arrearage must be paid when the property is sold or refinanced. A family law attorney can discuss the various enforcement options available to you.
How does the court decide who will get custody of our children?
There are numerous ways to resolve custody and visitation issues. The best solution is for you and the other parent to agree on who will take care of the children. If you and your spouse are able to form such an agreement, then your lawyer can assist you in preparing a written plan that can be incorporated into the divorce papers filed with the court. This agreed-upon custody and visitation arrangement will then become an enforceable court order.
If you and your spouse are unable to agree on the custody of your children, the first step will be for either or both of you to ask the judge for temporary custody. At that point, your case will be referred to custody mediation. In Marin County, a Family Court Services recommending mediator will meet with you and your spouse and attempt to get the two of you to agree upon a custody and visitation plan. If you and your spouse cannot agree, then the recommending mediator will make recommendations to the court about what custody and visitation arrangements would be in your children’s best interest.
If you and your spouse are unable to agree at mediation, then the court may appoint a trained evaluator or investigator to interview the parents, children, teachers, family friends, and others who may able to help determine which custody and visitation arrangement would be in the child’s best interests. The evaluator performs a thorough investigation and then prepares a written report to the court. Evaluations can be expensive, however.
If either or both parties are unwilling to accept the recommending mediator’s and/or evaluator’s recommendations regarding custody and visitation, then these issues will be decided by a judge. The judge will consider evidence as to which parent can do the better job of caring for the children's needs. Often, a great deal of weight in awarding custody will be to the parent who has already been the primary caretaker of the children. The judge also may consider the age of the children, the geographic separation of the parents, and the location of the children's schools. With older children, the judge may also consider the children's wishes as to which parent they desire to live with.
What is the difference between joint and sole custody?
Sole custody means that one parent has primary responsibility for bringing up the children. Joint custody means that both parents share responsibility.
If you and your spouse choose joint custody, you can decide on joint legal custody, joint physical custody or both. With joint legal custody, both parents are involved in making important decisions about the children, such as medical care or school choices. Joint physical custody means that the parents share the day-to-day care of the children. With joint physical custody, the children do not necessarily spend equal amounts of time with each parent, although they may do so. For example, the children might spend school days with one parent and weekends and some vacations with the other. A joint physical custody arrangement is much more likely to work if the parents live close to one another.
If a custody plan does not work, can it be changed?
Yes. The easiest way to change a custody arrangement is for you and the other parent to come up with a new plan and ask a judge to approve it. Judges will often approve changes even without a hearing if you both request them.
If you cannot agree on changes, then either of you may request a modification of the custody arrangement. Like the initial custody determination, the judge's decision will be based on your children's best interests. As a general rule, however, getting the custody arrangement changed may be more difficult if the children are reasonably well cared for and the custody plan has been in effect for some time.
What is spousal support?
"Spousal support" is the name for alimony in California. It consists of monthly payments by a working spouse to help a dependent spouse become self-sufficient after a period of unemployment or under-employment during the marriage.
How is the amount of spousal support determined?
There are two types of spousal support. "Temporary" spousal support is support ordered at an initial court hearing to preserve the status quo, pending resolution of the spousal support issue at trial or by settlement. Temporary spousal support is generally calculated based on the relative net incomes of the parties. In Marin County, the formula is 35% of the obligor's net income minus 45% of the recipient's net income if child support is also being ordered. If no child support is ordered, the formula is 40% of the obligor's net income minus 50% of the recipient's net income.
Determining the amount of "permanent" spousal support involves the consideration of a number of factors. The most important factor is the parties' standard of living during the marriage. Other relevant factors include the following:
- Each spouse's earning capacity;
- The property (and debts) of each party;
- The duration of the marriage;
- The ability of the supported spouse to work without interfering with the needs of dependent children;
- The parties' age and health; and
- The time that it would take the supported spouse to acquire education and job training to re-enter the workforce.
Permanent spousal support can be structured as a set monthly payment, or as a series of "step-downs" to encourage the supported spouse to re-enter the workforce (e.g., $1,000 per month for the first year, $750 per month for the second year, $500 per month for the third year, etc.). The options are limited only by the creativity of the parties and their lawyers.
How long is spousal support payable?
Like the amount of support, the duration of spousal support is determined by a series of factors. Spousal support is supposed to continue for a period sufficient to allow the supported spouse to become self-supporting. However, in long-term marriages (i.e., marriages lasting more than ten years) when one spouse has sacrificed career opportunities in order to stay home and raise the children, it may never be possible for the supported spouse to become fully self-supporting. In such cases, the court might "reserve jurisdiction" to award support for the rest of the supported spouse's life.
In shorter marriages, it would be unusual for spousal support to continue for an unlimited period. The general guideline is that a party is expected to become self-supporting (and no longer need spousal support) within a period of time consisting of one-half the length of the marriage. Thus, in a six-year marriage, the spousal support obligation might continue for only three years. However, this is only a guideline, not a hard-and-fast rule. The court has considerable discretion in determining the duration and amount of spousal support.
In almost all cases, spousal support will terminate upon the death of either party or the remarriage of the supported spouse.
What are the tax effects of spousal support?
Spousal support is generally tax deductible to the person paying the spousal support, and included in the taxable income of the person receiving the spousal support. (This is the opposite of the way that child support is taxed.)