FAQ in Family Law

Family Law

There are certain questions that are frequently asked in family law. Here are some of them. Keep in mind the answers may vary depending on your unique situation.

1.      HOW LONG DOES IT TAKE TO GET A DIVORCE?
Six months is the minimum time. Before 1970 it was one year. The State of California wants to give you time to try and work out your differences and reconcile. The six-month clock starts ticking when the respondent is served with the papers for the dissolution or when the respondent responds by filing a response.

2.      IF WE WORK OUT AN AGREED JUDGMENT, MUST WE RETURN IN SIX MONTHS?
No. It is very common to have a judgment done before the six months time period. On the judgment face sheet, it will state the “date marital status ends” under the party’s names. It is usually a future date that is the date the judgment will be final, and you will be free to marry again.

3.      HOW CAN I MAKE SURE THAT YOU, MY LAWYER, ARE DOING WHAT I WANT?
We will be in close contact. The billing statement that comes will outline the case. You will be sent copies of correspondence and other information about the case.

4.      I THINK MY SPOUSE IS HIDING ASSETS. HOW CAN WE FIND OUT?
Get as much information as possible on the assets yourself. Ask the attorney for “expand,” which outlines ways to find hidden assets.

5.      MY CHILDREN ARE OLDER. WILL THEY DETERMINE WHO THEY WILL LIVE WITH?
It all depends. The older the child, the more weight the court gives to that child’s preference. However, it is limited. For example: A boy says he wants to live with his mother because she lets him drink beer, smoke cigars and not do homework. His father says he can’t do these things. The court will probably award custody to the father in this situation regardless of what the boy thinks he wants. See FC 3042 and ask the attorney for a copy.

6.      DO WE HAVE TO GO TO COURT?
No, we don’t, if we are able to work out a settlement with the other side on the issues. The other time when we don’t have to go to court is when the other side does not file pleadings or contest the case. Then we do a default judgment and usually, you do not have to go to court.

7.      CAN THE FATHER EVER GET CUSTODY OF THE CHILDREN?
Yes. The courts do not look at the gender of the parent but rather at what is in the best interests of the minor child or children.

8.      MY SPOUSE HAS THREATENED TO QUIT HIS OR HER JOB SO NO SUPPORT WILL BE OWED. IS THIS POSSIBLE?
It is a very common threat for a spouse to quit their job so support will not be owed. The court is usually willing to impute earnings that the person could have made if they had not quit their job. Ask the attorney for an informational flyer called “threat”.

9.      ARE ALL DEBTS BUILT UP DURING THE MARRIAGE DIVIDED ONE HALF EACH?
Not always. FC 2602 provides for an offset for assets deliberately misappropriated by one party. Also if one party takes off to Las Vegas with a boyfriend or girlfriend just before the date of separation the court will usually assign that debt to the party who incurred it. There is another exception to this when the Community Property estate is very small.

10.  IF MY SPOUSE GETS ONE-HALF OF MY RETIREMENT PLAN DO I GET ONE HALF OF MY SPOUSE’S SOCIAL SECURITY?
No. Social security is always separate property. This does not seem fair, but the law is the law. If you are married for over ten years, you can get “derivative benefits”. For information on derivative benefits call Social Security at 608-477-1829.

11.  WILL SPOUSAL SUPPORT ALWAYS BE GUIDELINE?
The rules for Child Support are set at FC 4050 and following. The Dissomaster program (or another similar to it) is a spreadsheet that has this. The courts must usually follow the guideline for Child Support but not Spousal Support. There is Spousal Support on the Dissomaster but it is for temporary orders only. With very high or low income people the guideline does not have to be followed.

12.  IF I MARRY AGAIN WILL SPOUSAL SUPPORT END?
Yes, it will end if you marry again. It will also end if you or your spouses dies. The only exception is if this is spelled out contra in the judgment itself. If you move in with a member of the opposite sex and you are involved in a romantic relationship and they have a job then there is a presumption of “decreased need” for Spousal Support. This would probably also be true of a homosexual relationship.

13.  IF MY SPOUSE DOES NOT REMARRY OR MOVE IN WITH SOMEONE HOW LONG WILL SPOUSAL SUPPORT GO ON FOR?
Generally, for a marriage of 10 years or less then cut off would be about half the length of the marriage. On marriage of over 15 years, there would usually not be a termination date. Marriages of over 10 years and less than 15 could go either way. Usually a marriage of ten years there will be permanent spousal support or a reservation over spousal support. 

14.  WHAT FACTORS DOES THE COURT LOOK TO IN ORDERING SPOUSAL SUPPORT?
The factors are listed in FC 4320. Ask the attorney for a copy.

15.  MY CHILD SUPPORT IS BY WAGE ASSIGNMENT. HOW WILL IT END WHEN THE LAST CHILD REACHES AGE 18 AND IS NOT IN FULL TIME HIGH SCHOOL?
A new Wage Assignment can be done for zero amount owed. Another option is the Ex Parte Application for Wage and Earnings Assignment Order Modification. It is for Judicial Council form 1285.65.

16.  CAN SPOUSAL AND CHILD SUPPORT BE MADE RETROACTIVE TO OUR DATE OF SEPARATION?
Not till the date of separation. However, it can be made retroactive to the date of the filing of a motion for support.

17.  IS IT TRUE THAT PRESIDENT CLINTON SIGNED A BILL TO KEEP TRACK OF ALL PEOPLE OBLIGATED TO PAY CHILD SUPPORT?
Yes. It is the Child Support Registry as per FC 4014. 

18.  CAN I STAY IN THE HOME TILL THE CHILDREN ARE OLDER AND THEN IT WILL BE SOLD? Sometimes. FC 3800 provides for a deferred sale of home order. Usually it is when the mortgage payments are low, and the children are established in that home. A form of Child Support could be imputed if there is a very low mortgage payment.

19.  WHAT ARE THE DIFFERENT KIDS OF CUSTODY?
They are sole physical custody or legal custody or joint legal custody or physical custody. See FC 3000 for more information. Ask the attorney for a copy.

20.  WE WANT TO END OUR MARRIAGE AS SOON AS POSSIBLE. CAN WE END OUR MARRIAGE AND RESERVE ON THE OTHER ISSUES?
Yes, FC 2337 provides for ending the marriage and reserving on the other issues for a later determination.

21.  DO STEPPARENTS AND GRANDPARENTS HAVE RIGHTS TO VISITATION?
Yes. The rights are spelled out in FC 3101 for stepparents and FC 3102 for grandparents.

22.  WHEN IS THE VALUE OF THE COMMUNITY PROPERTY ESTABLISHED?
Usually near the trial date as per FC 2552. Ask the attorney for a copy.

23.  EVEN IF I DON’T HAVE CUSTODY DO I STILL HAVE RIGHTS TO MY CHILD’S SCHOOL AND MEDICAL RECORDS?
Yes. This is as per FC 3025. If the school or whatever is giving you trouble have a copy of this section. Otherwise have the attorney write a letter.

24.  THE JUDGMENT SAYS I HAVE TO STAY IN THIS STATE WITH THE CHILDREN. I PLAN TO MOVE. CAN I MOVE WITHOUT HAVING TO GO TO COURT?
This is after an order has been made by the court. FC 3024 provides for a minimum of 45 day notice in a certain way. Ask the attorney for a copy of FC 3024. Talk to the attorney before you do this. It can be risky.

25.  WHAT IS THE DIFFERENCE BETWEEN A LEGAL SEPARATION AND A DISSOLUTION OF MARRIAGE (DIVORCE)?
A dissolution of marriage actually ends your marriage and you are free to marry again. A legal separation means that you are still married. There is a full division of the Community Property, custody, visitation, Child Support and Spousal Support but the parties are still technically married. Usually, a legal separation is done when the parties are new to the state or county. For a dissolution, one of the parties must live in this county for three months and the State of California for six months. There are no residence requirements for a legal separation. Many people new to this area will file for a legal separation and later convert it to a dissolution of marriage. A legal separation is also used by people with strong moral beliefs against a divorce, where they have been married for many years or there is a family trust for money going to a relative “as long as she or he is married”.

26.  WILL MY SPOUSE HAVE TO KEEP ME ON THE MEDICAL PLAN?
Yes, there is an automatic order that when you file the order is that neither of you can cancel the other or the children off any health or other insurance. Usually, this ends once the dissolution is final. It will end for the spouse without the health insurance plan. However, it usually continues for minor children until they are adults.    

27.  WHAT IS TO PREVENT MY SPOUSE FROM SELLING THE PROPERTY BUILT UP DURING THE MARRIAGE?
On the back of the summons, there is an order preventing either party from selling, giving away, etc., any of the property built up during the marriage.

Please think of other questions that you or your friends may have. Suggest to the attorney that they be added here. Thank you.