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  Below are answers to frequently asked family law questions organized under the headings of
 "Beginning of the Divorce Process," "Child Support & Custody" and "Property Division," and "Spousal Support."

Beginning Of The Divorce Process

Q:  I was married outside of California. Can I file for divorce in California?

A:  You may file for divorce in California if either you or your spouse has lived in this state for 6 months, and in the county in which you file for 3 months.

Q: Do I need to either prove wrongdoing by my spouse or obtain my spouse’s permission to file for divorce.

A: Neither.  California is a “no-fault” state and allows a spouse to file for divorce on grounds of “irreconcilable differences.”

Q: Does California recognize common law marriages?

A:  A couple that lives together for some length of time and holds itself out as being married can, in some states, be deemed married despite the absence of a marriage license. Not so in California.

Q: How long does it take to acquire a divorce?

A: A minimum of six months from the time one spouse serves the other with a divorce petition and summons.

Q: What must I do if I’m served with a divorce petition and summons?

A: You have 30 days to file and serve a response. Unless you qualify for a fee
waiver, you must pay the court a $395 filing fee. If you do not file and serve in time, your spouse may apply for a default judgment which may give him or her everything she asked for in the divorce petition.

Q: What will prevent my spouse from leaving to another state with my children, canceling insurance policies, selling property or running up bills?

A:  After your spouse is served with the summons and petition, automatic restraining orders forbid either spouse from removing children of the marriage from the state without obtaining the written consent from the other spouse or a Court order. Also, neither spouse may cash, borrow against, cancel, transfer or change the beneficiary of any insurance or other coverage held for either’s benefit. Finally, except in the usual course of business and life, neither spouse may transfer, encumber, conceal, or in any way dispose of any real or personal property without the written consent of the other or a Court order.

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Child Custody

Child Custody & Support

Q: How is child custody determined?

A:  In some child custody cases, parents work out their own custody arrangements. However, in cases where parents cannot agree. California law requires the parties to undergo custody mediation. If the mediator cannot assist the parties in reaching an agreement, the mediator makes a recommendation to the court.

Q: What is the difference between “legal” and “physical” child custody?

A: Legal custody is the right to make decisions about a minor child’s health, safety, education, religion, welfare, etc.  Physical custody is the actual time a parent spends exercising custody and control over a minor child.  Absent unusual circumstances, both parents enjoy the right to exercise “joint legal custody” over their minor child or children. Physical custody allows a parent to have his or her child live with him or her. Often, one parent is awarded physical custody and the other parent is granted visitation rights. However, some parents may have joint physical custody, in which the child lives with each parent approximately 50 percent of the time.

Q: How is child support calculated?

A: California has a statewide formula (called a "guideline") for calculating child support. If parents can't agree on child support, the judge will decide the child support amount based on the guideline calculation. The guideline calculation depends on:

  • How much money the parents earn or can earn,
  • How much other income each parent receives,
  • How many children these parents have together,
  • How much time each parent spends with his or her children,
  • The actual tax filing status of each parent,
  • Support for children from other relationships,
  • Health insurance expenses,
  • Mandatory union dues,
  • Mandatory retirement contributions,
  • The cost of sharing daycare and uninsured health-care costs,
  • Other factors

Q: Can parents agree on a support amount other than the guideline amount?

A: Yes, given certain requirements and approval of the agreement by a judge.

Q: When can a child support amount be changed?

A: You can ask for a change in your child support amount when there is a change in circumstances. For example, if you change the amount of time you spend with your child, you ask for a change in your child support.

Q: How do I find out whether the other parent's income has increased?

A: If you have a judgment in your case (your divorce has been completed, or there is a Judgment of Paternity), you can have someone serve a Request for Production of an Income and Expense Declaration After Judgment on the other parent, along with an Income and Expense Declaration. The other parent must fill out the Income and Expense Declaration and return it within 30 days after it was served. The other parent must also send a copy of his or her most recent state and federal tax returns.

Q: How is child support taxed?

A: It is not taxed.

Q: When does court-ordered child support end?

A: It usually ends when the child marries, dies, is emancipated, turns 18 and is not a high school student, or turns 19.

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Child Custody
Property Division

Q: What is community property?

A: It is all property that has been acquired during the marriage, other than by gift or inheritance. Even if one spouse earned all the money to acquire the property, all the property acquired is considered to be community property.

Q:  Do all community assets and debts have to be divided equally?

A: Generally yes. There are exceptions such as personal injury awards. This equal division is usually accomplished by dividing the assets and debts equally or by awarding an equal value of assets and debts to each party.

Q: How is a pension divided?

A: Generally, pension plans are divided in one of two ways: a current division of the CP interest in the pension (via a "QDRO") or a "cash-out." Under a CP division, the non-
employee spouse receives a percentage of each pension check. This percentage is

calculated by dividing the years when the spouses lived together as husband and wife by the total number of years that the employed spouse was participating in the pension plan. The result of that division is the community property percentage of the pension plan. The cash-out method involves obtaining actuarial evaluation of a pension plan. By reviewing the plan description as well as the accumulations on the account of the employed spouse, the actuary can determine the present value of the pension plan.

Q: How is business ownership or professional practice divided?

A: Like any other asset, a business or professional practice must be considered in the valuation and division of community property. To the extent that a business or practice has been developed during the marriage, there is a community property interest that must be addressed in the dissolution. The value of a business is determined with the assistance of a forensic accountant.

Child Custody

Spousal Support

Q: How is spousal support (alimony) calculated?

A: You can ask for spousal support to be paid while your case is ongoing. This is called a "temporary spousal support order." Many counties have formulas for calculating the amount of a temporary spousal order.  The judge will not use a formula to calculate spousal support for the "final judgment". The judge must consider the factors in California Family Code section 4320, such as:

  • The length of the marriage,
  • What each person needs,
  • What each person can pay,
  • Whether having a job would make it too hard to take care of the child(ren),
  • The age and health of both people,
  • Debts and property,
  • Whether one spouse helped the other get an education, training, career, or professional license,
  • Whether there was domestic violence in the marriage.

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This website is designed for general information only. The information presented herein should not be construed as legal advice or as the formation of an attorney/client relationship.