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Frequently Asked Questions

Q What are the grounds for a dissolution of marriage?

The technical grounds for a divorce are "irreconcilable differences". In reality, if either husband or wife wants a divorce, the divorce will be granted.

Q Is fault considered?

You will hear that California is a "no fault state". What this means is that the law will not consider why the adults are breaking up. However, this rule is not a license for one partner to hurt the other, physically or economically.

Domestic violence is treated seriously. Even pushing or yelling to intimidate is the basis for a restraining order that has serious consequences. Family Code § 6211. Domestic violence impacts child custody and visitation results, as well as entitlement to spousal support.

Further, a husband owes a very high legal duty to his wife, and vice versa. As a result, no spouse can take advantage of the other. Family Code § 721, establishing this high legal duty between marital partners, is the fastest growing area of family law. The judicial goal in a divorce is to achieve fairness.

Finally, fault in the handling of the divorce process is a major factor considered by the court in determining who will pay attorney's fees. Both parties, and their respective attorneys, are expected to act both forcefully to defend their rights and graciously in honoring the other party's rights.

Q What is decided in a divorce?

First of all, once married, you are legally married until the divorce is final. So, a divorce terminates the marriage, and you become legally single. You cannot remarry until you are single. This process takes at least 6 months from when your spouse is served with your Petition for dissolution of marriage.

Second, the divorce process is intended to provide a healthy and safe environment for your minor children. You are the parents of your child, and every effort is provided for you to decide the parenting arrangement for the children. If you cannot agree, the court will make decisions for you. Custody and visitation issues should be handled with the delicacy of experience.

The third major issue in a dissolution proceeding is the establishment of reasonable child support and spousal support (alimony). The court also has the authority to assess one party for contribution to the other party's attorney's fees and costs.

Finally, all economic ties are severed. The parties, or the court, must determine what property is community property, which will be divided equally, and what property is separate property.

Q How would a judge determine the best interests of my child?

The question probably suggests its own answer. The court cannot. A judge who listens to your family situation, even for a few hours, cannot reasonably be expected to find the ideal solution for your child's parenting needs. But, you will have to live with that judge's decision.

The standard for custody determination is the "best interests of the child". Family Code § 3020. This is a broad standard, and the attorney's goal is to get as much meaningful information to the court as possible.

But the attorney's goal is to assist in providing mediation, counseling and other means to help the parents reach agreement in a mature manner, so that the parents are both acting in the best interests of the child.

Q How does the child participate?

If the child is "of sufficient age and capacity to reason so as to form an intelligent preference as to custody", the court "may" consider the child's input. Family Code § 3042. In general, the child's age should have the letters "teen" in it.

Q How much is child support?

The parties can agree to a child support amount. If they cannot, child support is set by a formula described in Family Code § 4055. It uses "net" income, assuming that the exactly proper amount of taxes are withheld. Most on-line calculators assume that you know the net income. Attorneys and courts use specialize programs to calculate the child support.

Q How much is spousal support (alimony)?

Spousal support is more problematic. Where there is a substantial difference in income earned by spouses, spousal support can be ordered. However, there are many other factors to consider in setting spousal support. The guidelines are set out in Family Code § 4320. The length of marriage is only one factor considered. Gender is not a factor.

Q What is community property? What is separate property?

In general, all property acquired during marriage is community property. Family Code § 760. But, there are many exceptions.

In most cases, joint tenancy property is considered to be community property. Family Code §2581.

Separate property is property acquired all property owned before marriage, and all property acquired after marriage. Family Code § 770. In addition, inheritance and gifts during marriage are separate property.

Most problems arise when property is co-mingled or when the property is part community, part separate, such as pension plans for jobs before and during marriage.

Other issues involve reimbursement rights, such as when separate property is used to acquire community property (Family Code § 2640).

The attorney will go through every asset and help determine the character of the property as community or separate.

Most importantly, once property is divided, by agreement or by court order, that decision is final. If the division occurred less than a year ago, certain exceptions may give you relief from poor decisions.

Other areas requiring special attention:

Student loans paid or incurred during the marriage
Child support paid during the marriage
Money or property traceable to personal injury settlements
Changes in title during marriage - joint to separate, separate to joint
Retirement plan division
Gifts during the marriage

Q Where should I file my case?

The court where you file you case will be the court nearest to where you live. Where both parties live in different parts of the county, state or country, other rules will apply. In San Diego County, the courts are in Vista, El Cajon, Chula Vista, and downtown.



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