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Frequently Asked Questions About Divorce

 

Divorce is a reality that no one ever dreams of facing.

No one goes into a marriage thinking that they'll be divorced someday. Sure, it was in the back of your mind somewhere. You knew about divorced couples throughout your life and had some idea of what both parties went through. Then there you were; standing there getting married and those horrible stories were buried under the idealistic notion that you had found "the one." That day has come and gone and you now find yourself reading this.

 

I understand the turmoil that you're experiencing in your life right now; I have been there myself. The uncertainty of your financial future, your living arrangements, possibly there are young children involved. Whatever your situation, I want you to know that each case is handled with the care and attention that it deserves. This is not the time to dwell on the past; it is the time to plan your future. 

 

Whether you are planning to be the one to file, or if you've already been served with a summons, I am here for you. There are serious issues ahead and you need a serious attorney to guide you through the overwhelming paperwork, disclosures, and court appearances. If you have minor children, this is but the first step in a long line of decisions that will have to be made concerning custody and support.

 

Please contact me immediately so we can discuss your unique situation and options as to how best to handle your matter. 

 

How long is this going to take?

Under California Law, the parties must be separated for a minimum of six months before a judgment of dissolution can be entered. That being said, the notion that you’ll be finished with this process after six months is idealistic and implausible. Most dissolutions take a year or more to complete. Much will depend on how much the parties can agree as to property division and child custody. I encourage everyone to reach an agreement on as many issues as possible and only leave those that cannot be settled to the Court for a judgment.

 

What if I want a divorce and the other side tells me that I can’t have one?

Under California Law, the other side does not have to agree to a divorce. If one party wants it, it happens.

 

I am new to California, are there residency requirements?

Yes. Under California law, at least one of the parties has to have been a resident of the State of California for at least six months and a resident of the county in which he or she files for at least three months. If you do not meet these requirements, there are still ways of accomplishing your goals. Please contact me and we can discuss your options.

 

What is Community Property?

California Family Code provides that all property acquired during marriage is presumptively community property. It does not matter where this property is located and it does not matter whose paycheck was used to purchase it. If it was acquired during marriage, the Court assumes it is community property unless the other side proves otherwise.

 

Community Property means that each spouse has an equal interest in the value. Upon divorce the property can either be sold and the profits split equally, or the Court will divide the property based on its value. Example: Husband keeps the boat worth $20k, and Wife keeps the car worth $16k and the furniture worth $4k. Both end up with $20k worth of property in this insanely simplistic example, and community property has been divided.

 

Imagine Mrs. Housewife, 1957. She stays home and raises the four kids, does the laundry, etcetera while he goes to medical school. Twenty years later, he leaves her for the 18-year-old secretary and wife is relegated to a minimum wage job because Husband “earned” all the money during the marriage. Community Property laws correct that unbalance.

 

What is Separate Property?

Separate Property means what the name implies; the spouse claiming ownership is entitled to the property as his or her sole and separate property. California Family Code provides that all property acquired prior to marriage or after the date of separation is presumptively separate property. Separate property can also come in the form of inheritance, gifts, and income from separate property businesses. Many times that which would have been separate property is commingled with community property and therefore potentially changes character and becomes community property. Certain burdens of proof apply and legal tools known as “tracing” are often employed. Only an attorney is qualified to give you advice and identify what property is indeed separate property.

 

What if everything is in the other person’s name?

This comes up all the time. The fact that the car, house, boat, furniture or other items are in the other person’s “name,” does not necessarily mean that he or she owns them. This is a very common misconception among people unschooled in the law and has caused many a sleepless night for those afraid of seeking a divorce who fear they’ll lose everything. Anything acquired during marriage is presumptively Community Property. It is up to the other side to prove that the particular asset is his or her separate property. For example, even if the house was owned by the other side before marriage, payments made toward the mortgage with community property funds make a portion of that house community property. I often am told that one party purchased a vehicle without putting the spouse on the title; that fact alone does not make the vehicle the purchasing spouse’s sole property. Sadly, television and urban-legends have made this a very difficult thing for many people to understand. If I could recall the number of times I’ve had to explain this to family law litigants, I’m certain the number would be quite staggering.

 

Spousal Support

Also commonly known as Alimony, spousal support is money paid by one spouse to another after divorce. Unlike child support, spousal support is not automatic and is often used as a bargaining chip in order to gain some piece of property that has value to the requesting spouse. An example would be one spouse giving up the ability to collect support in the future in exchange for an agreement to be awarded the family car or some other item as his or her separate property. Pursuant to California Family Code, spousal support is intended to compensate for the standard of living during the marriage. The Court may very well order wives to pay it to husbands or vice versa. In some cases, the Court can reserve the issue for an indefinite duration. Only an attorney is qualified to advise you as to your ability (or liability) on spousal support issues.

 

 

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