How a San Jose divorce lawyer can help
How long does a divorce take?
After you file the divorce petition and serve it on your spouse, it takes 6 months for the divorce to be finalized. If your spouse does not respond to the divorce petition, your case will proceed by default. You can expect to get your divorce judgment within approximately 2 months after serving the papers on your spouse. The judgment will have a date on which you will become a single person. You cannot remarry prior to that date.
How much will my divorce case cost?
The cost of your divorce will depend on your goals and what results you wish to achieve. In certain cases, we can tell how much time and effort will be needed. We are able to handle those cases on a flat-fee basis. An example of a flat-fee case is an uncontested divorce, a restraining order, or a hearing to establish or modify a court order. Although we may be able to estimate the cost, keep in mind there may be variables that will affect the estimated cost. The temperament of your spouse and your spouse’s lawyer is a factor that can be the difference between a good outcome at a reasonable cost versus an expensive bitter divorce. Unfortunately, there are some unethical family lawyers who add fuel to the fire by pushing the client towards destructive behaviors and driving up the costs for both sides. We know how to handle those situations and to keep your costs down when the other side’s objective might be the opposite. We tell you from the very beginning what battles are worth fighting and what battles are not. We do not engage in destructive behaviors. We do not fight over pet custody, furniture, a car without an engine, or for child custody only in order to get back at the other parent. The moral of the story is that your costs will, ultimately, depend on the decisions you make.
Will my spouse pay my attorney fees?
According to California Family Code section 2030, if there is a disparity in incomes between spouses, the court may order one spouse to pay for the representation of the other spouse. The spouse who is requesting attorney fees and costs from the other spouse must show the need for the fee award.
What are residency requirements to file for divorce?
You or your spouse must have lived in California for the last 6 months and in the county where you file the case for the last 3 months. The following information is important for you if you are in a same sex marriage. California recognizes same sex marriage. If you got married in California and you now live in a state that does not recognize same sex marriage, you can file for divorce in California irrespective of the residency requirements. You must file for divorce in the county where you were married. If you are in a same sex marriage and if you are considering divorce, talk to us. We have experience helping same sex married couples with family, divorce, and immigration matters.
My spouse and I decided to get a divorce. Should I move out or should I continue living with my spouse until our divorce is final?
If living together with your spouse is becoming difficult, moving out is a good idea. If you have minor children, obtain a custody and visitation order first before moving out. If you move out without custody orders in place, your time with the children is set by your spouse. Your spouse may make it difficult for you to visit the children. This is typical when the parties’ relationship had deteriorated and the parent who retains custody is alienating the other parent by interfering with visitation and saying disparaging things. A divorce lawyer can help you get a custody and visitation order in place if you want to move. A divorce lawyer can also help you get an emergency custody and visitation order in place if you want to move if that it is the right thing to do in your situation.
If I leave the home, can my spouse accuse me of abandonment, and will that affect my rights?
There is no such thing as “abandoning a home.” If you leave, your property rights will not be affected. If you decide to leave, it is very important to get your personal belongings and documents out beforehand. The fact that you left may have an impact on your rights to child custody. Consult a family lawyer if you are considering moving out before the divorce.
I lost all contact with my spouse. Last time we saw each other was about 20 years ago. How can I get a divorce?
You must make reasonable efforts to find your spouse to serve the divorce petition. The law does not specify what you have to do to try to find your spouse. Some things you can do are to call your spouse’s family members, your mutual friends, your spouse’s friends, your children, your spouse’s last job, check the telephone directory, or do an internet search. If you are not able to find your spouse after a diligent search, you can ask a judge to serve your spouse by publishing the divorce notice in a newspaper. If the judge approves your request, the notice will be published in a local newspaper. Although it may be unlikely that your spouse will see the notice in the newspaper, the law requires publication in the event you are not able to locate your spouse.
My spouse moved to a foreign country and I want to get a divorce. How do I divorce someone who lives abroad?
People often ask how to divorce a person who is in another country. There is some more paperwork and it may take a bit longer. Divorce is like a lawsuit, and just like any lawsuit, it must be served on the other party. How to serve your divorce papers depends on the law of the country where your spouse lives. The laws of the country where your spouse lives may require you to translate the divorce papers to English. You may serve your papers by mail if your spouse lives in a country that allows service by mail. If the law of the country where your spouse lives does not allow service by mail, service can be accomplished through “letters rogatory.” If your spouse is served by the “letters rogatory” process, the court of the country where your spouse lives will forward the proof of service to the court here. For example, Mexico is one of the countries that does not allow service by mail. Mexico requires translation of the divorce papers to English and service through the local court. Most of our foreign divorces were handled on behalf of individuals in the U.S. who were divorcing a spouse in Mexico.
What is the difference between divorce and legal separation?
Legal separation is essentially the same process as divorce, except that you are not divorced at the end. Couples choose legal separation instead of divorce for personal, financial, or religious reasons. This option is rarely used.
What is summary dissolution?
Summary dissolution is a quick and easy way to get divorced, but not everyone qualifies for this procedure. See a family lawyer if you want to end your marriage.
I am an undocumented immigrant. Can I get a divorce in California?
Yes. The court does not look into your immigration status when you are filing for divorce. You can file for divorce in California as long as you meet the residency requirements. You are considered a “resident” if you meet the residency requirements despite the fact that you do not have an immigration status.
What is child support?
This question may appear to be self-explanatory. People ask what is child support because they think that just because they are not living with the other parent, the other parent can force them to pay. People often ask if they must work it out with the other parent and pay what may be demanded. This is why it is important to understand what is child support and how it is established. To establish child support, there must be a court case. Child support is a court order for a certain amount of money that one parent must pay to another each month to help cover the children’s living expenses. Child support can be ordered as part of a divorce case, paternity case, or a domestic violence restraining order case.
How much will I pay in child support?
California has a formula that the court will use to calculate how much you will pay in child support each month. This formula is called the “guideline.” In calculating child support, the court will consider factors such as each parent’s income, the number of children, and the percentage of time each parent spends with the children. Consult a family lawyer to understand how child support works and for an estimate of how much you may be expected to pay.
Does the court always use the child support guideline to calculate child support that a parent must pay?
As a general matter, yes. However, the court may deviate from the guideline in some cases. It is important to note that courts do not like to deviate from the guideline. A deviation from the guideline is very rare and if the court does allow a deviation, the amount ordered may not be significantly less than the guideline amount. Although typically the court does not deviate from the guideline, the court has discretion to order payment above or below guideline if it is in the best interest of the children. An analysis must be made on a case-by-case basis to decide if it is worth for you to ask that the court order child support that deviates from the guideline.
Does the amount of time I spend with my children affect how much I will pay in child support?
The amount of time that you spend with the children is a factor in calculating child support. Generally, the more custody time you have, the less support you will have to pay because you provide for the children’s needs during the time they are in your custody. Keep in mind that timeshare with the children is just one of the factors in calculating child support. Your spouse’s income is also a factor in calculating child support.
How long will I pay child support?
A parent has a duty to pay child support until the child turns 18. If the child is 18 years old, a full time high school student, and not self-supporting, then a parent must pay child support until the child turns 19 or completes 12th grade, whichever is sooner.
Are there situations in which I will have to pay support for an adult child?
The court may order support for an adult disabled child who is not self supporting. You and your spouse may also agree to support a child longer. For example, many divorced parents pay for their children’s tuition and living expenses during college.
The parent who had been ordered to pay child support just quit working. What do I do?
You would think that parents understand that they have an obligation to support their children and that they must fulfill that obligation. But, more often than not, parents who are ordered to pay child support do not think that way. Parents either try to avoid paying child support or avoid paying the amount they are ordered to pay. If the other parent quits working to avoid paying child support, the court may impute income to the other parent based on earning capacity. Imputation of income is assigning fictional income to a person based on what that person has the capacity to earn and should be earning. Income may be imputed when a parent is not working on purpose, is not working full-time despite the ability to do so, or is working in a low paying job on purpose. If the court imputes income, the child support order will be based on what your spouse should be earning if employed according to capacity.
The parent who had been ordered to pay child support took a job that pays less on purpose in order to pay less in child support. What do I do?
Sometimes, a parent may try to avoid paying child support by quitting work or reducing work hours and salary. We have experience handling cases in which one parent attempts to either reduce or eliminate child support by either not working at all or not working to capacity. Courts are well aware of these games and courts do not like them. If the court finds that a parent is not working to capacity, the court may “impute” income based on earning capacity.
My spouse makes it hard for me to see the children. My spouse also tells the children bad things about me and our relationship. Since the child support calculation takes timeshare with the children into account, I think my spouse wants me to spend little or no time with the children to get more money. What should I do?
We have experience handling cases where one parent attempts to reduce the the other parent’s time with the children or to prevent the non-custodial parent from seeing the children. Unfortunately, this is a tactic that is often used (and abused) when the custodial parent wants to get more in child support. Even more unfortunate, is the tactic of accusing the non-custodial parent of domestic violence to prevent any kind of visitation. Allegations of domestic violence are taken very seriously. A domestic violence restraining order may not only limit your time with the children, but may ruin your life. If this is your situation, talk to a family lawyer.
My spouse who has been ordered to pay child support paid for some time and then stopped. I know where my spouse works and the income has not changed. What do I do?
In every case ordering child support, the court will order that child support be paid by wage assignment (garnishment). This way, your spouse’s employer automatically deducts the support amount from your spouse’s paycheck and sends the money to you. If there is a child support order, talk to a family lawyer to put a wage assignment in place. There are other ways to force the non-paying parent to pay. Talk to a family lawyer for a full analysis of your situation.
I lost my job and I cannot meet my child support obligations. What should I do?
Life changes, and the courts are aware of that. You need to read this if you lost your job or your income was reduced because you are either getting less hours or your schedule changed because work is no longer available. You must file a request with the court to change your child support amount right away. If you do not do this, you will fall behind on child support payments, and you will be obligated to repay what you owe despite the fact that your situation has changed. Talk to a family lawyer immediately to modify your child support order to reduce the amount you are paying.
I worked in two jobs, and now I can no longer do that. My spouse, however, expects me to work two jobs as I used to. Will the court require me to continue working in two jobs just because at one point in my life this is what I did?
The expectation is that you work a reasonable work schedule. A reasonable work schedule is 8 hours per day, 40 hours per week. The court cannot obligate you to hold more than one job or to work beyond a reasonable work schedule.
I fell behind on my child support payments. What do I do?
If you are behind on child support payments because you lost your job or your income has decreased, it is important that you file a request with the court to change your child support amount right away. Talk with a family lawyer about how to do this. If you are falling behind on your payments because you lost your job or your income went down, you must ask to court to modify your child support order right away. If you are behind on child support, you must make arrangements with your spouse to repay what you owe. Work out a repayment schedule and make the payments.
Who can claim the child as a dependent?
Generally, in order for a parent to claim a child as a dependent on a tax return, a parent must provide at least 50% of child child’s financial support during the tax year. When parents are separated, only one parent can claim the children as dependents. If both parents try to claim the children as dependents, this could spell trouble with the IRS.
My spouse and I were married for 3 years. Will I have to pay spousal support?
Often, one spouse will say: “I will force you to pay spousal support after we divorce!” It is important for you to understand California spousal support laws and what your obligations may (or may not) be. In a short term marriage, spousal support typically goes for half the length of the marriage. You may have heard that temporary spousal support is determined based on a computer program, but this is not always the case. There are many factors that are taken into account in ordering spousal support. If you and your spouse are both young and have been working, it is unlikely that you will be ordered to pay anything. Talk to a family lawyer for a full analysis of your situation.
Will I have to pay spousal support?
Spousal support is meant to help the spouse who was out of work for a long time with living expenses in order to get back to work. If you were married to someone who did not work for 20 years, then it is very likely you will be ordered to pay something to your spouse. The court will not expect someone who was out of the work force for 20 years to find a job immediately. It is important for you to talk to a family lawyer to understand this thorny subject because spousal support is a huge financial obligation. Aside from that, there are so many ways that spousal support can be abused. A family lawyer can help you make sure your rights are protected and your spouse does not take advantage of you.
What is temporary spousal support?
Temporary spousal support is available immediately upon filing for divorce. The court does not automatically award spousal support, it must be requested. The purpose of temporary support is to provide the spouse who is receiving support funds for basic needs. Long-term spousal support may be awarded at the end of the divorce procedure.
How much will I pay in spousal support?
Spousal support is a thorny issue. In reality, very few divorces involve spousal support. However, if your spouse never worked or has been out of work let’s say, 20 years, you may be ordered to pay spousal support. If you are ordered to pay spousal support, it may be the biggest obligation you will incur in life. If your spouse hasn’t worked at all during the marriage or has been out of work for a long time, the court will not expect your spouse to find a job immediately. You may think it’s not fair that you have to support your spouse after the divorce because the relationship is over and so are the benefits that come with it. Because the law doesn’t look at it this way, it is important for you to understand how much you may have to pay, how long your obligation may last, and to make sure your spouse is not taking advantage of you. Your must also think long-term and start coming up with a strategy to end spousal support. This is why consulting with a family lawyer is important. “Permanent” spousal support is awarded at the end of your divorce case. The court will not use a computer program to figure out how much should be paid. California law states that the amount of “permanent” spousal support is determined by looking at several factors: (1) the length of the marriage; (2) the needs of each person based on the standard of living established during marriage; (3) what each person pays or can pay to keep the marital standard of living; (4) whether having a job would make it hard for the custodial parent to take care of the children; (5) the age and health of the spouses; (6) debts and property; (7) whether one spouse helped the other to get education or job training; (8) any history of domestic violence; (9) whether one spouse’s career was affected by unemployment or by taking care of the children; (10) tax consequences. The court has a lot of discretion in deciding how spousal support is awarded. Consult a family lawyer for a full analysis of your facts.
How long does spousal support last?
Contrary to popular belief, spousal support is not “permanent.” It is the policy of the state to get divorced spouses who have been out of work back to work. Otherwise, divorced spouses would live off support and not work. In California, marriages that lasted 10 years or longer are considered long-term marriages, and, as such, the court cannot set a termination date for spousal support at the time of trial. This does not mean that you will be obligated to pay spousal support forever. Even though the court cannot end spousal support by a certain date, the court can say that spousal support will end by a certain date unless your spouse asks to extend support before that date. If a marriage lasted less than 10 years, spousal support is presumed to last no longer than for half the length of the marriage. For example, if your marriage lasted 8 years, it is presumed that spousal support will last 4 years.
How do I end spousal support?
Even after marriages of long duration, spousal support must eventually end. If the marriage lasted less than 10 years, the supported spouse is expected to become self supporting within half the length of the marriage. Even in long-term marriages, the supported spouse has a duty to become self-supporting within a reasonable period of time. What has the supported spouse done to become self-sufficient? This is the first thing to look at. A vocational examination may be necessary. Also, the supported spouse might have found a job or increased income. If that is the case, it should be brought to the court’s attention because there would be less need for support. Maybe your spouse is living with someone else or remarried. If you can prove that your spouse is in a romantic relationship with someone and lives with that person or your spouse remarried, the court should consider reducing or eliminating support. Also, your duty to work to support your spouse ends when you turn 65 when you are eligible to retire. There are many things to look at to decide how to eliminate spousal support. Consult a family lawyer for an analysis.
My spouse never worked and doesn’t want to work. Will I have to pay spousal support?
Maybe, but not necessarily. If your spouse did not work and doesn’t want to work, the court will often issue a “seek work order,” which will tell your spouse what to do to look for a job and bring proof of work search efforts to the court. I had a case where the wife never worked and did not want to work after the husband filed for divorce. The court ordered the wife to apply for 10 jobs per week, document her job search efforts, and to bring proof of her job search efforts to the next court hearing. The wife did not attend the court hearing during which the court was supposed to review her work search efforts. The court imputed income to the wife. The court said that the wife had sufficient time to look for work between the initial hearing and the review hearing, which were several months apart. The court determined that the wife had the capacity to earn at least minimum wage, and assigned a gross monthly income of $1,440 to her. The husband was not ordered to pay spousal support because if the imputed income and the child support the husband were paying were added together, the wife ended up with more money at the end of the month than the husband. If your spouse isn’t working at all or isn’t working to capacity, consult an family lawyer.
My spouse claims to be disabled. Will I have to pay spousal support forever if the court decides that my spouse is not able to work?
Often, people feign disability in order not to work. To some people, work may be scary as it involves getting up in the morning, thinking, and taking responsibility, which may not be something they are used to. If your spouse has a disability, it doesn’t mean that your spouse can’t work at all. A person with a physical disability may not be able to lift heavy things, but may be able to answer the telephone, type, file, and you name it. Sometimes, a person may complain of a disability when there is none. In many cases, an independent medical evaluation is recommended. Consult an attorney if your spouse is either feigning a disability or uses a disability as an excuse in order not to work.
I was ordered to pay spousal support. I am now 65 years old and I want to retire. Will I be obligated to pay spousal support after I retire?
You are entitled to retire at age 65, and you can’t be required to support your spouse. If you are forced to retire early, you may have an argument for ending spousal support.
I was ordered to pay spousal support. My income went down. Can I pay less in spousal support?
Yes. An order for spousal support can be modified. If you lost your job your your income was reduced, you should be able to decrease what you are paying in spousal support. In many cases, if you can’t get a job that pays the same as your old job or if your income went down, you may be able to reduce what you are paying in spousal support or even to end spousal support.
I am ordered to pay spousal support. I just got a big raise. Will I have to pay more in spousal support?
No. Spousal support is meant to give your spouse the standard of living established during marriage.
I am an undocumented alien. Do I have the right to spousal support and child support?
Your immigration status has nothing to do with your rights to support or your property rights.
What is domestic violence?
Someone who has been in an abusive relationship can define domestic violence based on experience. When we speak of domestic violence, an image of a battered woman often comes to mind. But an abusive relationship can mean so many things, and the abuse is not always physical. Abusers are very smart. They know that they will get in trouble if they physically harm the other person. Ketti, a former client, was a victim of domestic violence. She obtained a domestic violence restraining order after he husband hit and choked her. After that, her husband learned his lesson. He stopped hitting Ketti. Instead, he started to humiliate her, often in front of the children, by telling her she was ugly, stupid, and worthless. When Ketti testified in court about the emotional abuse and the impact it had on her and the children, the judge ordered her husband to leave the home. This is just one example of how abusers try to gain control over another person by intimidation, threats, humiliation, and emotional isolation. Kettis’ husband was the breadwinner, and he also attempted to control her by limiting her access to money. Abuse is a vicious cycle, where one thing leads to another. Domestic violence happens in families from different cultural and socioeconomic backgrounds.
What is a domestic violence restraining order?
A domestic violence restraining order is an order issued by a judge to protect people from abuse or threats. The restraining order can direct the person who has abused you to move out of the home, to stay away a certain distance from you, not to contact you, not to contact your family members, and not to contact your children. You can ask for a domestic violence restraining order if the person has abused you or threatened to abuse you and you have a close relationship with that person. You are in a “close relationship” if you are either married or registered domestic partners, divorced or separated, dating or used to date, living together or used to live together as part of a romantic relationship, have a child together, or you are family members.
How do I prove that domestic violence had occurred?
In order to prove domestic violence and to keep your family safe, there are things that you must do. Call the police immediately and report the abuse. Do what the police officer tells you. Get a police report. Go to the hospital if the abuser hit you to treat and to document your injuries. Take photos of your injuries. If the abuser is sending you unwelcome or threatening messages, save them. If the abuser is constantly calling, keep records of the calls and voice messages. If the abuser is stalking you or comes to your home without your consent, call the police. Keep a record of everything that happens. It is very important to document the violence. Get a lawyer who knows how to handle domestic violence cases. It is important that you have a rapport with your lawyer and the lawyer be the person whom you trust. Your lawyer will be the person with whom you will share very personal and emotional matters. If you talk with a lawyer and you feel that you are not comfortable opening up to that person about personal and sensitive issues like abuse, then you should work with someone else.
I am being accused of domestic violence. I read the domestic violence restraining order papers that were served on me and everything there is a lie. I did not do the things I am being accused of. What do I do?
Although laws pertaining to domestic violence exist to protect victims, very often the so-called “victims” resort to false accusations of domestic violence because they believe it will give them an advantage in court. A vindictive spouse may make false accusations of domestic violence just out of spite. A custodial parent may make false accusations of domestic violence to keep the non-custodial parent away from the children in order to get more in child support. False accusations of domestic violence are also used just to make the accused person look bad. After all, if you are accused of domestic violence, the judge does not know what really happened and what did not. A divorce client we had was accused of engaging in abusive behavior after he came home drunk and urinated on the walls. When something like this gets into court papers, the person looks bad no matter what. A domestic violence restraining order was issued against another client after the wife accused him of hitting her with a plastic chair. The client knew that trouble was coming, and he did not hire a lawyer on time. Review our article “When you need a lawyer.” The lesson to be learned is that if you are being accused of domestic violence and you did not do anything, call a family lawyer who has experience handling such cases.
I want my spouse to move out of the house because I cannot stand the abuse. What do I do?
You can ask the judge to order your spouse to move out of the home when you ask for a domestic violence restraining order. If the judge grants your request, have the sheriff serve the order on the abuser and force the him/her to move out of the home.
How is a domestic violence restraining order enforced?
Many people do not do anything about their situation because they do not have faith in the court system. Sometimes people say that the court order is just a piece of paper. After the domestic violence restraining order is issued, the police cannot follow the abuser around to make sure the abuse stops and the order is obeyed. While it is true that the police cannot follow the abuser around, law enforcement takes a violation of domestic violence restraining order very seriously. The domestic violence restraining order is entered into the law enforcement electronic database. If the abuser was forbidden from coming to your home or contacting you, but the abuser nevertheless comes around, follows you, contacts you, or tries to contact you through your friends or family members, report it to the police immediately. Violation of a domestic violence restraining order is a crime that will be prosecuted. Your complaint to law enforcement is enough to make an arrest, which could lead to jail time for the abuser.
What is a civil harassment restraining order?
Civil harassment is abuse, threats, and stalking by someone with whom you do not have a close relationship. A civil harassment restraining order is a court order that helps protect the victim from abuse by another person. A common occurrence of civil harassment is between neighbors. Another common occurrence of civil harassment is on the part of people whose romantic advances were rejected. You can ask for a civil harassment restraining order if a person has abused you, threatened to abuse you, or the person is engaging in behavior that is seriously annoying or harassing. Examples of such behavior can be incessant phone calls, stalking, following, unwanted visits, and unwelcome communications. The person can also be harassing you by contacting your friends, your relatives, and your job.
What are the immigration consequences of being accused of domestic violence?
An immigrant who commits a crime could be deported. It doesn’t matter if you are a documented or if you are undocumented. If you are an immigrant charged with the crime of domestic violence, you could face deportation, but whether or not you are deported depends on the facts. The definition of domestic violence is very broad. An act of domestic violence is not just hitting someone. Domestic violence includes threats or threats to hurt, harassing, stalking, or destroying someone’s property. Unfortunately, false accusations of domestic violence are not uncommon. Section 237 of the Immigration and Nationality Act states that you can be deported if you used physical force against another person or made threats to use physical force. It is important that you hire a lawyer who has experience dealing with these issues.
How do courts decide child custody matters?
Child custody is decided based on the best interests of the child. The following factors are considered: (1) age and health of the child; (2) emotional ties; (3) who has been the primary parent taking care of the child; (4) amount of time each parent spends with the child; (5) family violence and drug abuse; (6) parents’ employment. Ultimately, the court will not be concerned with what the parents want. What is best for the child is the underlying consideration.
What happens if we cannot agree on child custody?
If you and your spouse cannot agree on child custody, the court will make a temporary child custody order. The temporary child custody order will reflect the current custody arrangement. Therefore, it is highly likely that the temporary custody order will affect the permanent custody order. Before a child custody hearing, you will participate in mediation. You will meet with a neutral third-party mediator who will listen to you and to your spouse in order to help you come up with an agreement. Why is it important to consult a family lawyer to learn more about the mediation process? First, so that you know what to expect. Second, so that you can define your goals and so that you know how to stand your grounds because sometimes the mediators may push you to settle in order to close the case. A family lawyer can help you evaluate the pros and cons of every decision so that you can decide what custody arrangement you are and are not willing to accept. The reason for going to mediation is that a child custody hearing is very emotional, and mediation affords you and your spouse an opportunity to meet with someone in private to work things out before going to the judge. When you are in front of the judge, there are other people in court, who will hear your private matters. If you don’t agree on custody in mediation, the court will hold a hearing. A lot of people are intimidated to go in front of the judge. Keep in mind the judge is another human being, not different from you or anyone else. You may obtain a better result in a hearing if you and your spouse cannot work things out outside of the courtroom.
What is temporary custody?
After you and your spouse separate, it is important that you decide how you will share custody of your minor children. If you and your spouse cannot agree on custody and visitation, you must get temporary custody court orders. This is very important if you are planning to move out. The temporary order will remain in effect while you and your spouse work out the issues in your divorce, including a permanent custody and visitation schedule. It is important that you retain a family lawyer at this stage to work out a custody arrangement that you will be happy with because the custody arrangement you work out at the beginning often ends up being the permanent custody arrangement in the future. It is also important to hire a family lawyer when you are working out a temporary custody and visitation arrangement because often your spouse may pressure you into accepting an arrangement that will be to your disadvantage.
I have always been taking care of our children, and the other parent was in and out of our lives. Now the other parent has filed papers with the court asking for 50/50 custody. I don’t think this is fair given the fact that the other parent took very little interest in the children. What is the court likely to do?
Family law judges prefer the status quo and stability for the minor children. Sometimes, a parent who has taken little interest in the children is suddenly asking for more custodial time in order to pay less in child support. Sometimes, a parent who has taken little interest in the children fights for more time with the children because there were disagreements on visitation and parenting. Sometimes, court papers are filed just to prove a point. Keep in mind that the court will look at what is best for the children, not what the parent wants or thinks is best. Consult a family lawyer if a parent who has been absent in children’s lives suddenly shows up and fights for more custody.
The other parent wants to move and to take the child. What do I do?
The “move away” cases can be very difficult and emotional. The custodial parent may want to move far away because of a job opportunity, financial considerations, or a new relationship. The impact on the non-custodial parent can be profound because the children will live far away and visitation rights will be affected. Difficult decisions have to be made about where the children will live and how the non-custodial parent will see them. In California, a court will decide child custody and visitation matters based on the best interest of the children. Public policy states that it is important for both parents to maintain frequent and continuing contact with their children. A child custody order can be changed if there is a significant change in circumstances. When one parent wants to move away, a new custody order will be necessary. The court cannot prohibit a parent from moving. The issue will be whether the child should move, and if the child moves, what the custody arrangement will be. The court’s decision will be based on whether the moving parent has sole custody of the child or whether there is a joint custody arrangement. Ultimately, a decision will be made based on what is in the best interest of the child. The court will consider various factors, such as the distance of the move, the reasons for the move, the child’s age, the child’s relationship with both parents, the relationship with between parents, and the child’s wishes. If you have a move away case, you should create an arrangement that is best for the child and you should make sure that the child has a continuing relationship with the non-custodial parent.
How is a child custody order enforced?
When a judge makes a child custody order, the order must be followed. If the other parent is not following the court order, call the police. The police will enforce the custody order. Talk to a family lawyer about filing a contempt of court action against the parent who disobeys the court order. It is important to keep records of when the parent who is not obeying the court order created problems.
My spouse says I am not entitled to anything because I don’t work. Is that so?
The court, not your spouse, will decide what you will get and will not get. Your community property will be divided according to the law regardless of whether you work or not. California is a community property state, which means that all property you acquired during marriage is, generally, divided 50/50. The debts you incurred during marriage are generally divided 50/50. Both spouses are responsible to pay debts incurred during marriage regardless of in whose name the debt it. Saying that “you will not get anything” is a common intimidation tactic.
Why do I need a lawyer to help me with property division?
Someone has to determine what property has to be divided. Often, you may not know about property in your spouse’s control or your spouse may be hiding assets. This happens when one spouse runs a business and manages the finances, while the other spouse stays home and takes care of the children. Valuation of property is another issue, and a family lawyer can advise you on that issue. Some assets are hard to characterize. For example, there may be a home that one spouse owned before marriage, then the home was refinanced, and the other spouse was added to the title. One spouse may have taken advantage of the other spouse and induced him/her to sign documents to his/her disadvantage when the property was bought. There are also complicated assets, such as pension plans, businesses, and stock options. You want to make sure the results are fair when your property is divided, and a family lawyer can help you get what is rightfully yours. You also want to make sure your spouse is not taking advantage of you, and a family lawyer can help you with that also.
Does domestic violence have any effect on how our property will be divided?
Who gets the house?
People are emotionally attached to their houses and can’t stand the thought of giving them up. When going through a divorce, it is important to put emotions aside and understand that there are now two households instead of one. You will now have one income instead of two. Both you and your spouse will need to decide where to live, how much to pay in rent, what car to drive, and what expenses you must cut. If you are ordered to pay support, this will eat into your budget. There are good and bad reasons to hold on to something, even a house. If you are trying to hold on to something you can no longer afford, it is time to think twice. If you want to continue living in the house, it will be your responsibility to pay the mortgage, taxes, insurance, and maintenance. Consider the cost of staying in the house as opposed to the benefit. Your spouse is entitled to receive a his/her share of the equity. Despite the fact that you may want to stay in the house because you want to, your house is an asset that the court will divide according to the law. If you and your spouse cannot agree on how to divide the house and to handle the financial obligations associated with keeping it, the court will order the sale of the house. Your spouse will ask for the house during the divorce proceeding, and the house is community property, the judge will divide it according to the law. I recently handled a highly contested divorce case where the husband was paying for the mortgage, while the wife was living in the house without making a single payment for anything. The wife wanted to stay in the house despite the fact that her income was not enough to afford keeping it. The judge ordered to put the house for sale. The wife spent thousands of dollars fighting a legal battle that she lost. Her money would have been put to better use if she paid off delinquent property taxes and found a job.
I need a place for myself and the children to live and I am willing and able to pay the mortgage and other expenses to live in the family home. Can the home be sold in a few years after the divorce or do we have to sell our home after we divorce right away?
A deferred sale of the house is possible if it would promote stability or the children and if you can afford to pay for it for the time you would live in it. California family law sets forth specific factors that the court considers in deciding whether or not to defer the sale. The law is clear about one thing: if you want to live in the house, you must pay for it. The most important thing, therefore, is your financial ability to pay for the house during the time the sale is deferred. If you cannot the judge that you can afford to pay for the mortgage, taxes, insurance, and maintenance, the sale will not be deferred.
I was paying the mortgage after separation while my spouse lived in the family home. What are my rights?
This is a complicated issue because so many factors come into play. Generally, it is a bad idea for your spouse to live in the house when you are paying the mortgage because such an arrangement can have serious financial consequences for your spouse. Your spouse may be ordered to reimburse you for the mortgage payments that you made. Talk to a family lawyer for a full analysis of your situation.
Who will pay what debts after we separate?
In California, debts are also “community property.” Generally, the debts and the assets are divided equally. Debt adds more complexity to a divorce. It is better to clear the debt before going through a divorce.
My spouse shopped a lot and we now have big credit card bills. I didn’t even know about it. The debts are in my spouse’s name. Am I responsible for the debts that are in my spouse’s name?
Yes. Both spouses are responsible for debts incurred during marriage regardless of whose name is on the credit card.
I was not working during our marriage. Will I receive a share of the property my husband bought with his money?
It depends. California is a community property state. It is presumed that all property acquired during marriage is community property. There are always exceptions to this rule, but we will not deal with the exceptions here. The money that is earned during marriage is community property regardless of who earns the money. It doesn’t matter if one spouse works and the other one doesn’t. There is no such thing as “my money” and “your money.” If the husband bought property during marriage with the money that he earned, that property would be community property.