Frequently Asked Questions

A:  Cases vary greatly, depending on the complexity of the issues, the willingness of the parties to settle, and the degree of cooperation or non-cooperation from the opposing side.  The earliest date for obtaining a judgment terminating marital status is six months after the divorce petition is served on the other side.

Q:  Can I get the judge to order that my spouse contribute to costs of college for the children?

A:  The court loses jurisdiction over children’s expenses when the children reach age 18 (or age 19 if still in high school).  So the court will not make orders about college issues.  However, parties in their negotiated settlement agreements often specify how the costs will be shared, and these agreements are fully enforceable as contracts between the parties.

Q:  May I date while the divorce is in process, and will that be a problem in my custody case?

A:  Yes, it is fine to date.  Judges do not frown on dating.  In fact, it is the policy of the law that following the breakup of a marriage, the parties are encouraged to get on with their lives.  As for custody, it is important (as with all other matters where children are affected) to be sensitive to the children’s feelings and needs, and careful about how a new significant other is introduced into their lives.

Q:  Does it matter who files first for the divorce?

A:  Legally, no.  The only significance is that the party filing first presents his or her case first if the case goes to trial.  “Going first” in a trial can, in some circumstances, give an advantage.

Q:  Can I have my spouse removed from the house after we separate?

A:  Generally, a judge will order a spouse to move out of the house only if there has been abuse, or a threat of abuse, or if physical or emotional harm is likely to result to a party or the children if the parties continue living in the same home.

Q:  What is a Legal Separation?

A:  This is a judgment that, like a divorce judgment, divides property, specifies custody, and provides for spousal and child support where appropriate.  It differs from a divorce judgment in that the parties are still married.  It is different from the term “separation,” which refers to the date on which at least one of the parties decides the marriage is over, and that decision is a final one.  According to a recent appellate court case, if the parties remain in the same residence after that decision is made, the separation date will probably be the date one party moves out of the family home.

Q:  What is the significance of the date of separation?

A:  It ends the community; i.e., the period during which anything acquired by the work effort of either party is joint.  Thereafter, anything either party earns by his or her work or other effort is separate property.

Q:  Do I have to go to court in my divorce?

A:  No, court is avoided if issues are resolved by negotiation and compromise.

Q:  What is arbitration?

A: This is when parties give the case issues to a neutral third party to make binding decisions.  It is different from mediation in that mediation helps the parties to arrive at their own decisions, but the mediator has no authority to make decisions.

Q:  If I receive an inheritance, is that my separate property?

A:  Yes, so long as it is not so commingled with joint funds that it loses its separate character.  So it is important to keep inherited funds in an account in your name alone, and to keep other assets (like real estate or securities) titled in your name alone.

Q:  Can I get my spouse to pay my attorneys fees in my divorce?

A:  The standard is “need” and “ability to pay.”  If one party has a greater need for a fee contribution, and the other party has a greater financial ability to pay, judges will usually order the financially “better off” party to contribute to the other party’s fees.

Q:  What does “legal” custody mean?

A.  This means the right and responsibility to make decisions concerning the health, education, and welfare of the children.  Thus, joint legal custody means the parents have an equal voice in these decisions.  Except in rare and unusual circumstances, joint legal custody is the norm in California.

Q:  What does “physical” custody mean?

A:  This describes where the children live for most of the time.  Our experience is that judges and custody evaluators are moving away from awarding “sole physical custody” to one parent and visitation rights to the other parent; rather, we are typically seeing judges order “joint physical custody” to the parents, and then specifying the amount of time the children will spend with each parent.  “Joint physical custody” does not mean a 50/50 time share; it can encompass a broad range of time-share arrangements.

Q: I keep hearing about “temporary spousal support” and “final spousal support.”  What’s the difference?

A: Temporary spousal support refers to spousal support ordered while your case is “pending,” meaning from the time the divorce case is filed and a request for spousal support is made until the final judgment of dissolution.  Final spousal support refers to post-judgment support.  These will usually, though not always, be two different amounts.  The reason for the difference is that the purpose of temporary spousal support is to maintain the living conditions and standards of the parties as closely as possible to the status quo until final division of the assets and obligations of the parties.  In other words, it is meant to keep parties in parity and to “level the playing field” until the case is completed.  Thus, courts can order any amount consistent with the receiving spouse’s needs and the paying spouse’s ability to pay.   In reality, most courts simply use a computer software program that calculates temporary support “guidelines” to determine the appropriate temporary spousal support order.  In contrast, the purpose of final spousal support is to provide financial assistance, if appropriate, as determined by the financial circumstances of the parties after their dissolution and the division of their community property.  In making its decision as to final spousal support, the court is required to consider a laundry list of factors defined by statute.

Q: Will it hurt my case if I move out of the house?

A: This is a complicated question with many facets.  First, if you have children and you move out of the house without them, your time with them will likely be significantly reduced.  If so, this could affect the visitation rights you are granted.   Your spouse may argue that you voluntarily left the kids and now have little time with them, and once a status quo is in place it may be difficult to change.  With regard to property issues, by law all personal property items remain community until they are divided.  If parties are unable to come to an agreement about how to divide their household furnishings and the like, they can use an arbitrator to help them settle their dispute.  The items will likely be assigned “garage sale value.”  As a practical matter, items left behind often wind up being awarded to the spouse who remains in the house, if only because the expense of arguing over them is not worthwhile.  The spouse who moved out may then receive a monetary offset to compensate for the loss of the items.

Q: If an account is held in only one spouse’s name, does that mean it will be awarded to that spouse?

A: The general rule in California is that income earned during the marriage is community, while pre-marital or post-separation income is the separate property of the party who accrues it.  Thus, it does not matter if one spouse held an account in his or her name only: if the money that went into the account was earned or accrued during the marriage, it is community property.  Only when an account comes from a separate property source and is not commingled with community funds does it retain its separate property character.

Q: What about real property purchased just after my spouse and I separated and taken in sole title?

A: It depends on the source of the funds used for the purchase.  If the property was purchased with community funds, it is a community asset.  The burden is on the spouse making the separate property claim to prove that the source of funds was separate.

Q: Can I “buy out” my spouse’s share of the family home?

A: Yes, but you should consult with your tax advisor and be aware of Internal Revenue Code section §1041, which makes transfers between spouses which are incident to divorce tax free.   Thus, if you are the selling spouse, you pay no taxes on the money you receive from the sale.  But if you are the buying spouse, when you go to sell the house all of the gain may be recognized.  Parties should keep this in mind when negotiating a sale price.

Q: Why do I have to wait at least six months for my divorce to be finalized?

A: The purpose is to give the parties time to be sure there is no chance of reconciliation.  However, even if you are certain there is no chance of reconciling, practically speaking it usually takes at least six months to negotiate agreement on property, custody and support issues even in the most amicable of divorces.

Q: I was just served with a Summons and Petition for Divorce, and I read on the back of the Summons that I cannot use any community accounts.  However, I have no other source of money to purchase food and other essentials.  What do I do?

A: There is an exception to the automatic temporary restraining orders which prohibit spouses from dissipating community assets: that is, purchases made for “the necessities of life.”  If you need to use community assets for food, shelter, clothing, transportation and other basic day-to-day necessities, you may do so without violating these orders.

Q: My spouse filed a Petition for Dissolution, but we have since decided to try to work out our differences and we are no longer seeking to divorce.  Will the court enter a divorce if we don’t do anything further?

A: No.  However, the case will remain open.  If you are certain that neither party will be pursuing dissolution, the party who filed the Petition for Dissolution should file a Request For Dismissal of the Petition for Dissolution.

Q. Do I really have to disclose exactly how much money I earn and all of my assets to my spouse?

A: Yes.  The California statutes require each party to disclose his/her income from all sources and to provide a complete list of all assets, even those you may believe are your separate property.  In drafting these statutes, the California Legislature reasoned that by forcing parties to be open and honest about their income and assets, settlement could be more easily achieved and the degree of litigation would be reduced.  In fact, you can be sanctioned for not fully disclosing assets.

Q: How do I know if something is community property or my separate property?

A: Generally, assets or debts acquired after the date of marriage are community property.  If they were acquired before marriage or after separation, they are separate property.  There are certain exceptions to this general rule, such as gifts and inheritance, which are separate property even if acquired during marriage.

Q: If I receive a personal injury award, is that my separate property?

A: Personal injury damages received during the marriage may be characterized as either separate property or community property.  If there is a divorce the injured party must receive at least one-half, and maybe all, of the amount.  The statute gives the court the ability to take into account the economic condition and needs of each party, how much time has elapsed since the damages were awarded, and other factors.  If the court reaches the conclusion that the “interests of justice” require a division of the personal injury damages between the parties, the court can decide how much each party should get.

Q: I have a large pension, and my spouse and I own our home free and clear.  Will my pension necessarily have to be shared with my spouse, or can I “trade” the home in exchange for my keeping the entire pension?

A: In negotiating a settlement, parties can agree to any kind of division they wish, including “trading” one asset for another.  However, keep in mind that the pension payouts once you retire are considered income available for support.  The fact that you received the pension in the final settlement of your divorce does not “protect” it from being a source of support payments.

Q: I receive child support from my ex-spouse.  Can I obtain a higher award than the one put into place by the final judgment of dissolution?

A: In California, children are entitled to share in the standard of living of their parents, even after divorce.  If the parent who pays child support begins earning a higher income after the divorce, the other parent may bring a motion to have child support increased.  In some cases, one or both parties work in a field where they have a fluctuating income (for example, commission-based sales).  In those cases, the parties might want to include a provision in their final settlement agreement whereby they exchange income tax returns every year, and adjust the child support retroactively for that year using the income reported to the taxing authorities.

Q: How long will my divorce take?

A: Cases vary greatly depending on the complexity of the issues, the willingness of the parties to settle, and the degree of cooperation or non-cooperation from the other side.  The earliest date for obtaining a judgment terminating marital status is six months.

Q:  What is a Judgment of Legal Separation?

A:  Obtaining this is very much like the process of obtaining a divorce.  Assets and debts are divided, child custody issues are resolved, and spousal and child support are determined.  At the end of the process, however, the parties are still married.  Don’t confuse a court action to obtain a judgment of legal separation with the concept of being “separated” for divorce purposes, which is when community property is no longer being created; earnings after separation are separate.

Q:  I’ve heard the term “date of separation” used.  What does this mean?

A:  This is the date when at least one of the parties makes the final decision that the marriage is over.  Typically, though not always, the date coincides with the date one party moves out of the family home.  But the date can be earlier (for example, when the decision to end the marriage has been made but the parties remain in the home together for financial or child-related issues), or later (for example, when one moves out but the parties are still attempting reconciliation).  Sometimes parties will disagree about the date of separation, and determining it will be an issue in their divorce.

Q:  Can I bring a friend or relative along to my appointment with my attorney?

A:  All discussions you have with your lawyer are confidential.  Bringing along a third party runs the risk of waiving the confidentiality such that the other side could compel the disclosure of what was said.  However, if the third party is there to assist the lawyer (such as translating, or helping the lawyer to understand what the client is trying to convey, or answering questions the lawyer needs to represent the client well), those communications remain confidential.

Q:  What can I do to keep legal fees down?

A:  Try to use your attorney’s time efficiently.  If your attorney asks you for documents or information, provide them promptly.  If your attorney has to follow up to get them, that costs you fees.  If you have questions, make a list for when you talk with your attorney.  Remember that every time you call with a question, you are billed for the attorney’s time in responding to it.  One organized call to discuss four questions will be a less expensive than four separate calls.  If you are feeling emotionally overwhelmed and need to vent your feelings, it’s a good idea to use your friends or relatives rather than your attorney.  A therapist is also a good resource for you; they are typically less expensive than a lawyer, and they are trained to deal with these issues.  Remember that your lawyer is a lawyer, not a therapist.

Q:  Can my spouse and I use one lawyer for our divorce?

A:  No.  Lawyers are ethically prohibited from representing both sides of a divorce.

Q:  But if we mediate our case with a lawyer, isn’t he/she working for both of us?

A:  A mediator works with both of you, but does not represent either of you.  You need to have independent counsel and advice.  That’s why the mediator will tell you that you each need to have your own reviewing attorney.

Q:  What’s the difference between alimony and spousal support?  I’ve heard both terms.

A: “Spousal support” is just the term we use in California.  Other states use the term “alimony.”

When clients come to us they frequently have certain beliefs about divorce law that are not correct.  These are “urban (family law) legends” that continue to persist.  Here are some of the most common ones we encounter:

When my child reaches a certain age, he/she can choose which parent to live with.

-----No.  If a child is of “sufficient” age and maturity to express a reasoned preference, that will be taken into consideration, but it will not be determinative.  And there is no particular age at which this occurs.  Clients often think it is age 12; that is not true.  It depends on the individual child.

There is a rule that spousal support lasts half the length of the marriage.

-----No.  This misunderstanding comes from the law’s presumption that at the end of a short marriage (under 10 years), a supported spouse should be able to generate enough income on his or her own to no longer require support after the passage of time equal to half the length of the marriage.  The actual duration of a spousal support order, however, can be significantly shorter or significantly longer—depending on the facts of the particular case.

If I have been married for ten years or more, I am entitled to permanent (forever) spousal support.

-----No.  Even after a lengthy marriage (ten or more years), the duration will depend on a long list of factors that the court is required to weigh.

If my spouse gave me a gift (say, a car on our anniversary), it’s my separate property if we divorce.

-----Not necessarily.  For a gift between spouses to be valid, there has to be a writing (by the person making the gift) clearly showing the intent to change the property into the other spouse’s separate property.  There are a few exceptions to the writing requirement, such as for gifts of jewelry of “nominal” value.  (Whether or not an amount is “nominal” depends on the financial circumstances of the couple.)
Prenuptial agreements are only for people with lots of assets.
-----No.  While persons with substantial assets are typically more concerned about having a prenuptial agreement, even persons with few assets should consider whether an agreement makes sense for them.  (For example, if a person is trying to start a business before marriage, and thinks he or she will make it a success after, a prenuptial agreement can define whether it will be separate or community.)

I have a successful business during marriage, and it was successful before marriage, so it’s entirely my separate property..

-----Not necessarily.  If the business has increased in value during the marriage, and if some or all of the increase was due to the work effort of one of the spouses, there can be a community-property interest in the business.

I was granted stock options during marriage, but they’re under water, plus they all vest after my spouse and I separated, so the options are all my separate property.

-----No.  Courts typically divide stock options using a time rule, such that if they were granted during marriage, they are partly community even if they vest after the marriage ends.  The longer the period of time between grant date and the parties’ separation date, relative to the period between the separation date and the date the options vest, the greater the community percentage.