Family Law FAQs

How soon can I be divorced?

Legally as soon as six (6) months and a day. However, the actual process usually takes longer if there are children, support issues, and property division. Learn more.

We have children. Who gets custody?

California law favors shared custody with both parents having frequent and continuing contact with the child. The most important legal standard is the best interests of the child. A court, mediator or evaluator will almost always attempt to order or recommend a shared custody agreement as close to fifty-fifty as is practical unless there are extenuating circumstances. Some factors courts consider are the child’s age, health, educational needs and the child’s relationship with both parents. Learn more.

What is the difference between Legal and Physical Custody?

Legal custody refers to making decisions such as a child’s healthcare, where the child goes to school, the child’s religion, and extra-curricular activities. Physical custody refers to the parent with whom the child actually resides. Usually one parent has primary physical custody and the other parent has visitation. When both parties have time with the child, most commonly the parties will have joint legal custody even when one parent has primary physical custody. Learn More.

My spouse got a job in another county or state. Who will the children reside with?

California law requires a parent’s consent or a court order to move a minor child from their county of residence. If the spouses cannot agree on where the children will reside in this situation, it becomes a contested custody issue. Either of the parties has the right to file a Request For Order and ask the Court to rule on custody. The Court again looks to the best interests of the child standard and which parent is more likely to allow and ensure the other parent frequent and continuing contact with the child. Learn more.

How is child support determined?

Child support is based on a number of factors using statewide guidelines. Factors to be considered include: the parties’ incomes, health insurance, mortgage interest deductions, how the parties’ incomes are taxed, and the parties’ percentage of time with each minor child. California guideline support is then determined using a legal program such as Dissomaster. A child support obligation usually continues until a minor child turns 18, graduates from high school or is otherwise emancipated. There are exceptions depending on the parties’ situations. Other factors the Court considers are costs for each minor child’s health and dental care, extra-curricular activities, travel, and child care, as appropriate. These are referred to as add-ons. Learn more.

How is spousal support determined?

Both parties have a duty to become reasonably self-supporting when they divorce. The statewide computation is similar to that of child support, but the spousal support obligation usually is not indefinite and depends on the situation. Several factors go into computing the duration of spousal support such as the length of the marriage, the parties’ incomes, the age and health of the parties, the parties’ marketable skills, time out of the work force, earning potential, and the taxable consequences to both parties. The spousal support payor should speak to a tax professional about any spousal support payments being tax deductible. The spousal support payee must include spousal support payments as taxable income. A spousal support obligation typically ends upon agreement of the parties, court order, the death of either spouse or the remarriage of the supported spouse. Learn more.

We have a house. How is ownership determined and who pays the mortgage?

Upon separation, both parties have a legal duty to continue to pay the mortgage on a family residence and any other community real property. Which party remains in the residence is subject to agreement or court order. The fact that one party remains in the house does not relieve the other party of their obligation to pay all residence related expenses if appropriate. Dividing a residence is based on the actual equity in the residence, loan financing, whether either spouse contributes separate property either pre or post separation, and whether either party can afford to buy out the other and assume the mortgage payments. When a buyout is not possible, the property is usually sold unless the parties can otherwise agree or a party can convince the court of an appropriate solution. Learn more.

We have assets to divide. How do I know that my spouse is disclosing all of our assets?

California law requires that both parties complete and serve the other spouse with Preliminary and Final Disclosures upon divorce. That paperwork includes a Schedule of Assets and Debts which sets forth all of the community and separate property assets and debts, to the extent known, and an Income and Expense Declaration which sets forth each party’s income, expenses, debts, and attorney’s fees. If a spouse’s disclosures are inaccurate and it is proven by the proper standard of evidence, the non-disclosing spouse can be ordered to pay penalties such as the other spouse’s attorney’s fees or part or all of an asset. Learn more.

I had separate property before the marriage and I want to keep it. How do I do that?

California law states that a spouse’s separate property is not part of the community estate unless it is transmuted. Separate property is usually determined by a premarital agreement, a separate agreement by the parties, or by a tracing analysis with documents substantiating that spouse’s separate property. If the parties cannot agree, a court can enter an order to that effect after a properly noticed hearing or trial. Learn More.

Will I have to go to court?

If there are no contested issues, then usually the parties do not have to appear in court. If there is a contested motion or trial for custody, support or property rights, courts expect that both parties attend all such hearings. A party’s failure to appear when necessary could cause that party to fall into disfavor with the Court and could lead to sanctions or other proceedings. If the Court orders a party to appear, that party must appear. Learn more.

Will I have to pay my spouse’s attorney’s fees?

It depends on the situation. If one spouse earns significantly more than the other, the lesser earning spouse can request legal fees based on financial need or those monies could come from a community property asset subject to later reallocation. Although domestic violence cases have their own set of rules, attorney’s fees may be awarded in a dissolution, legal separation, custody, parentage or nullity proceeding. A spouse who wishes to request an award for attorney’s fees must file a Request for Order and an Income and Expense Declaration with the court. If you are defending a request for attorney’s fees, you must respond to the filing or you are exposed having to pay an attorney’s fee award. Learn more.

Can I request that my spouse pay my attorney’s fees?

Yes. If one spouse earns less the other spouse and the higher earning spouse can afford to pay the parties fees, the court will order that party to pay attorney’s fees. Many times this order is not enough to pay for legal representation in contested cases. If the court did not make a high enough order for fees, it may make additional orders at trial. Learn more.

How does the Court determine who is entitled to attorney’s fees?

California law attempts to put both spouses on equal footing by ensuring that they have equal access to legal representation, as spouses may not always have the same ability to pay and afford representation. Thus, California Family Code Section § 2030 provides that in such proceedings where there is a disparity in access to legal representation between the parties, the Court shall order one party to pay such amount as may be “reasonably necessary” to maintain or defend the proceeding.

These are commonly known as need based attorney’s fees and the determination will be based upon: (1) the respective incomes and needs of the parties and, (2) any factors affecting the parties’ respective abilities to pay in order to insure that each party has access to legal representation to preserve his or her rights. The court must consider the totality of the circumstances in each case. Some such factors include the amount of attorney fees in relation to the nature of the litigation, its complexity, the nature and extent of the dispute, the amount involved, the financial circumstances of the parties, and the skill and the professional standing of the attorney selected by the parties. This is a mandatory responsibility of the Court. Learn more.

The other party has made things very difficult for me. Am I able to request sanctions in my case?

California Family Law provides that a court may also base an award of attorney’s fees and costs to the extent that the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys under Family Code § 271. Although such sanctions are difficult to get, if one party or attorney is causing unjustified delays, added expenses, and/or dis-incentivizes cooperation or settlement, a request for 271 sanctions may be appropriate for your case. Learn more.

I am getting married and have separate property assets to protect. What do I do?

A well-drafted prenuptial agreement with both parties represented by counsel can protect separate property assets and address spousal support. There is a waiting period between the date of marriage and the signing of the prenuptial agreement. A prenuptial agreement must be signed weeks before the wedding. A prenuptial agreement signed hours or days before a wedding will not be upheld by a court. Learn more.

My spouse and I want to sign a nuptial agreement but we are already married. Can we do that?

Yes, the parties can prepare a post-nuptial agreement dividing assets or agreeing to a spouse’s separate property after the date of marriage. It is recommended that both parties be represented by counsel for this transaction. Learn more.

To speak with an experienced attorney in Cottle Keen Lopiccolo & Heyde’s family law practice, please call (714) 997-7870, or click here to contact us by email.

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