FAQ's

What are the requirements for divorce in California?
Under what circumstances will a court award alimony or spousal support?
How is the amount of child support calculated?
Once a court issues a child support order, can the amount of support that is paid be changed?
How is child support collected if the person responsible for paying it moves to another state?
How does a court decide which parent will get custody of a child?
What is the legal divorce process like?
What is a 'legal separation'?
What terms should be included in a separation agreement?
What kind of assets are divided in a divorce?

What are the requirements for divorce in California?

You must be a resident of California for six months and a county resident for three months to file for a divorce, called a "dissolution."

Either spouse can get a divorce simply by stating in divorce papers that "irreconcilable differences" have caused a breakdown in the marriage. If both spouses are in agreement that there should be a divorce, they can agree in writing (called a "stipulation") that the marriage can be ended.

The legal divorce process begins when one of the spouses files a "Petition for Dissolution of Marriage" with the Superior Court. The other spouse is then served with the paperwork and given time to respond. If the parties are in agreement about property and debt division, as well as child custody and child support matters, the divorce can be finalized without a trial. If the parties can't come to an agreement, the court will set a time for a hearing, usually some time in the future.

After the Petition for Dissolution has been filed, either party can request temporary assistance from the court in the form of temporary custody and child support orders, and orders to determine who pays community debts on a temporary basis.

Under what circumstances will a court award alimony or spousal support?

The obligation of spouses to support each other does not necessarily terminate when they divorce. If the divorce will leave one spouse with very little income and the other with enough to contribute to the low-income spouse's support, the court will usually award alimony, at least temporarily.

Historically, spousal maintenance was awarded to homemaker wives, and paid by wage-earning husbands; that is no longer always the case. Now, either spouse may be awarded alimony if the other has the more substantial income and the recipient spouse's income is insufficient to support him or her at the level to which the spouses were accustomed during the marriage.

Spousal support is often awarded in cases in which one spouse has put his or her education or career on hold in order to raise the parties' children while the other climbed the career ladder and achieved a higher income. In such cases, the alimony will often be temporary, providing income for a period of time to enable the recipient spouse to become self-supporting. This temporary, or rehabilitative, spousal support enables the recipient spouse to further his or her education, receive job training, reestablish himself or herself in a former career or complete childrearing responsibilities, after which time he or she can be self-sufficient.

How is the amount of child support calculated?

Each state has developed guidelines that help establish the amount of child support that must be paid. The guidelines vary from state to state, but are all based on the parents' incomes, expenses and the needs of the children. In some states, the guidelines allow judges greater discretion in determining the amount of child support that must be paid, but in other states any variance from the guidelines must be carefully justified or it can be readily overturned on appeal. Often, the guidelines are set out in a chart-type format that calculates the child support amount as a percentage of the paying parent's income that increases as the number of children being supported rises. The purpose of guidelines is to aid the judge in determining child support amounts. Judges are free to deviate from the guidelines when there are good reasons to do so. If, for instance, one party or a child has higher than average expenses, the amount can vary. Or if the court determines that the paying parent is voluntarily earning less than he or she could for the purpose of minimizing the child support obligation, the judge can calculate the amount of child support based on what the payer is capable of earning.

Despite the variations from state to state, there are some general factors that are almost universally considered by judges issuing child support orders, including

The child's standard of living before the parents' separation or divorce
The paying parent's ability to pay
The custodial parent's needs and income
The needs of the child or children, including educational costs, daycare expenses and medical expenses (health insurance or special health care needs)

Once a court issues a child support order, can the amount of support that is paid be changed?

The amount of child support may be modified under certain circumstances and through a variety of methods. The simplest method is for the parents to agree to a change, but the court must approve even an agreed-upon change in order to be enforceable.

When there is no voluntary agreement, the party seeking the change must request a court hearing at which each side will present, usually through counsel, the reasons supporting and opposing the modification. The court usually will not grant the request unless there has been a significant change in circumstances that justifies the change, such as a significant increase in either parent's income through a remarriage, a job change or a considerable change in the needs of the child. Changes in the child support laws, too, may justify a change in previously issued orders. Also, under certain circumstances, an increase in the cost of living can warrant an upward modification of child support. Generally, periodic increases can be provided for in the original order so that the parties do not need to make repeated court appearances each time there is a significant change in the cost of living.

How is child support collected if the person responsible for paying it moves to another state?

Under the Revised Uniform Reciprocal Enforcement of Support Act (RURESA), an order for support issued by the family court in one state will be enforced by the family court in another state to which the paying parent moves if certain conditions are met. Under RURESA, the custodial parent has two options for how to proceed to collect support.

Under the first option, the custodial parent who receives the support must register the order for support in the county where the payer parent now lives. The family court will move to enforce the order and make the non-custodial parent pay. The payer parent can, however, go to court in his or her new home state and argue that the child support amount should be modified, and if he or she is successful, the child's home-state court may be stuck with the reduced amount.

Alternatively, the custodial parent can go to the family court in his or her home state to commence an action to enforce the support award issued by that court. The enforcement agency that serves that court will notify the payer's new home state so that enforcement actions, such as wage withholding, can be implemented there. Under this method, the payer cannot get the award modified in his or her new home state. The new state's court can, however, determine that the amount of child support ordered is too high and require that only a portion of it be paid, but the original state does not have to accept the reduced amount. The payer remains liable for the full amount as originally ordered, and if he or she fails to pay it, the original state may issue an arrest warrant, and the delinquency can show up on the payer's credit report.

How does a court decide which parent will get custody of a child?

When the parents cannot agree on a custody arrangement, the court will make the decision for them. When determining the child's best interests, the court may consider may factors, including

The child's age
The child's gender
The child's physical and mental health
The parents' physical and mental health
The parents' lifestyles
Any history of abuse
The emotional bonds between the parent and the child
The parent's ability to give the child guidance
The parent's ability to provide the basic necessities, such as food, shelter, clothing and medical care
The child's routines, including home, school, community and religious
The willingness of the parent to encourage a healthy, on-going relationship between the child and the other parent
If the child is above a certain age, the child's preference
Who has been the child's primary caretaker?

What is the legal divorce process like?

Some divorces are simple and can be handled with a minimum amount of court involvement. However, most divorces are more complex and can take many different courses. The following is a basic outline of the divorce process.

One spouse contacts a lawyer, who prepares a complaint setting forth the reasons why for the divorce.
The complaint is filed with the court and served on the other spouse, together with a summons that requires the spouse's response.
The served spouse must respond within the time limit prescribed or it will be assumed that he or she does not contest the petition, in which case the petitioner will be granted the requested relief. The response, or answer, must express the relief that the answering spouse requests.
The parties, through their attorneys, engage in "discovery," during which they exchange all documents and other information relevant to deciding the issues in the divorce such as property division, spousal support, child support, etc.
The parties may attempt to reach a settlement, which can be initiated voluntarily or facilitated by the parties' lawyers or a neutral third party, such as a mediator.
If a settlement is reached, the agreement is submitted to the court.
If the judge approves the agreement, he or she issues a divorce decree that includes the terms to which the parties agreed. If he or she does not approve it, or if there has been no agreement, the case will go to trial.
At trial, the attorneys present the evidence and arguments for both sides; the judge decides the issues and grants the divorce.
Either or both parties can appeal the judge's decision to a higher court.

What is a 'legal separation'?

A marital separation agreement, also known as a property settlement agreement, is a written contract dividing your property, spelling out your rights, and settling problems such as alimony and custody. A marital separation agreement may be drawn before or after you have filed for divorce — even while you and your spouse are still living together.

When you initially execute a marital separation agreement you usually do not have to file the separation agreement with the court to be effective.

When and if you begin the divorce proceedings, you will attach the separation agreement to your divorce papers and ask the court to merge, but not incorporate, the agreement into the final judicial decree. If the marital separation agreement is incorporated into the decree, it becomes a court order and is enforceable by the court. If you don't incorporate the separation agreement into your decree, it simply becomes a contract or agreement between you and your spouse.

What terms should be included in a separation agreement?

A separation agreement may be advisable when the parties have very different financial situations, such as when one spouse is the wage earner and the other is a homemaker. A formal separation agreement can help ensure that all family members' needs will be met.

The terms of such separation agreements vary, but the following items are usually addressed:

The spouses' right to live separately
Custody of the children
A visitation schedule
Child support
Alimony or spousal support
The children's expenses (medical, dental, educational and recreational)
Property and debt division
Insurance (medical, dental and life)
Income taxes

What kind of assets are divided in a divorce?

The parties in a divorce can agree to the division of (or the judge will divide) all marital or community property owned by the parties. Marital property generally includes most of the property the couple acquired during the marriage. Examples may be the marital home, second home, furnishings and appliances, artwork, vehicles, financial assets, investments, retirement accounts and privately owned businesses.

The value of intangible property may also be divided. Examples of divisible intangible property include the value of a patent on an invention, the value of the celebrity status of a spouse's name, the goodwill value of a business owned by one spouse and the value of a professional degree earned by one spouse. The value of these intangible assets will generally only be divided when both spouses made a substantial contribution to that value, either directly or indirectly.

It is not always easy for a spouse to identify all of the assets that may be available for valuation and division. A party's lawyer may help with this issue through discovery, During discovery the parties' attorneys' trade documents that disclose each party's income, assets and liabilities. In addition, each spouse is usually deposed by the other spouse's attorney. At the deposition, the questioned spouse will respond, under oath, to questions designed to gather all necessary information about his or her assets and income. If necessary, additional parties may be deposed, such as employers, bankers or business partners.