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FREQUENLY ASKED QUESTIONS
: Famliy Law


Does California have common law marriage?
No, you must have a valid ceremony to be married.

Does it matter who files for divorce first?
No, except that the person who files and serves the Petition first controls in which county the action is heard. The proper county is the county in which either party is living.

How does the divorce process work?
In order to ultimately enter a Judgment for Dissolution of Marriage the court must first open a file in the case. This is accomplished by filing a Petition with the court itemizing what type of orders are being requested. In order to have the other spouse’s input, the court requires that the other spouse be served with the Summons and Petition and allows the other spouse to file a Response setting forth what type of orders that spouse is requesting. At that point, the parties have options as to how they want to proceed to obtain a judgment. If the parties agree on all of the issues, they can submit a Stipulated Judgment which the judge will sign without any court appearance. If the parties have questions regarding details pertaining to the property and debts, they can engage in discovery (subpoenas, depositions, interrogatories, requests for documents) and/or hire experts to determine values. If the parties need temporary orders for custody and/or support, pending the entry of the Judgment, they can ask the court for a “mini-trial” by filing an Order to Show Cause (“OSC”). If custody is contested, the parties can ask the court to appoint a psychologist to examine the situation and render an opinion. Most parties will reach agreements regarding some if not all of the issues. If the parties are unable to agree on an issue, then that issue will be decided by the judge at trial. The divorce process can take as little as a couple of weeks or a couple of years or longer.

When is the Judgment for Dissolution effective?
The Judgment will be binding on the parties as soon as the judge signs it, however, the soonest that a person can remarry (or be able to file tax returns as a single person) is six months after the day that the other spouse is served with the Summons and Petition. Thus, if the judge signs the Judgment four months after the Summons and Petition were served, the orders in the Judgment will be effective immediately, however, the parties will not be free to remarry until two months later. If the judge signs the Judgment after the six month period has passed, then the parties will be free to remarry immediately upon the date that the judge signs the Judgment.

What does “no fault” mean?
California is a no fault state. “No fault” in the divorce context means that the court will not consider evidence pertaining to infidelity or failure to otherwise act appropriately during the marriage when dividing property or making a support order. However, in certain cases the court will consider such factors when the behavior can be directly tied to an event that affects the marital community, (i.e. if the husband has a $5,000.00 credit card charge for a fur coat for his girlfriend) the court will order him to pay 100% of that debt. There are other exceptions to the rule and the law in this area changes periodically so it is important to give your attorney all of the facts.

What is community property and how will the property and debts be divided?
California is a community property state in which the property and debts are divided equally. Community property is any property obtained during the marriage, from date of marriage to date of separation, with funds earned during the marriage. Property owned prior to marriage, acquired after date of separation, or acquired by gift or inheritance at any time, is separate property. Community property is divided 50/50 between the parties in such a manner that each party receives property that is equivalent in value. For example, a party may receive a car and a bank account totaling $20,000.00 in value and the other party may receive a house with $20,000.00 equity. The manner in which the property is divided is either agreed upon by the parties or, if the parties are unable to reach an agreement, determined by the court. The same rules apply with regards to debts. It does not matter whose name is on the credit card. If the debt was incurred between date of marriage and date of separation, then both parties are responsible for paying it. Certain situations will give rise to a different allocation of marital property and debts so it is important to tell your attorney of all of the facts surrounding the acquisition of the property and debts. Income earned after date of separation is the separate property of the party who earned it. Debts incurred after date of separation are the sole responsibility of the party who incurred them. The date of separation is the date that the parties decide that the marriage is truly over and act accordingly.
 
How is the amount of support determined?
Child support is determined by a formula set by statute. The courts use computer programs (“DissoMaster” or “Xspouse”) which apply the formula using certain factors such as amount of income, time spent with the child, tax filing status, income tax deductions, etc. If a parent is not working, but could be working, then the court might base its calculations on the amount of income the parent could be earning. Day care costs incurred to enable a parent to work are usually split, as are the child’s health care costs not covered by insurance. Both parents are expected to be employed and contribute the support of the children except in cases where the children’s well being may be affected. Spousal support is determined by the judge. The judge may use the computer program to calculate temporary, pre-trial spousal support, but the judge may not use the computer program to determine spousal support ordered at trial. At trial, the judge must consider a list of factors, one of which is the marital life style, to arrive to an amount. Since it costs more to support two households than one, the spousal support order usually leaves each party worse off financially than when they were living together.

Is support taxable?
Spousal support is taxed as income to the recipient and is a tax deduction for the paying spouse. Child support is not tax deductible and the recipient owes no taxes on it

Will the court order the employed spouse to continue to maintain health insurance for the unemployed spouse?
Generally no, following the divorce, most health insurance policies will not provide coverage for the former spouse. In some cases the former spouse can continue the coverage for up to 36 months by paying the employer’s costs via COBRA.

Are men and women treated equally when it comes to support?
It does not matter whether you are a woman or a man, the court will order the party who earns more money at the time of the divorce to pay support to the other.

Will the court order a parent to pay for the child’s college education?
No, the obligation to pay for the child’s support ends when the child turns 18 and is no longer attending high school or at age 19 if still in high school.

Can failure to pay child support keep a parent from having visitation with the child?
No, the two issues are separate. A parent will not lose visitation rights for failing to pay support.

Is there a specific age when a child gets to pick which parent to live with?
No, whether the child’s desires may have an effect is done on a case by case basis depending on the individual facts of the case.

 

 

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