Divorce FAQ

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Do I need an attorney?

The simple answer is no.  A large percentage of divorcing couples are self represented.  The problem, though, is very often big mistakes are made (which seem like small mistakes to a litigant) that may not be able to be corrected later.  If a couple goes through a collaborative law case, they must be represented by counsel.  If the issues are mediated, oftentimes there is no representation or perhaps a consulting attorney.  Sometimes legal issues such as jurisdiction and fiduciary duties make it nearly impossible to be self represented.  Consultation with a family law attorney is advised.

What is the procedure to start a divorce?

A Summons and Petition Requesting a Dissolution and other forms are filed.  Different counties require additional forms.  The filed paperwork either must be personally served on the opposing spouse or the spouse being served can (and should) complete an Acknowledgement and Receipt agreeing they received the paperwork.  If the case proceeds through the Collaborative process, it is handled differently and the attorneys handle this.

How are assets divided?

Typically every asset and debt acquired between the date of marriage and the date of separation is evenly divided as long as it was acquired with community funds.  Community funds are typically earnings made by either spouse after date of marriage or date of separation.  Separate property are those items that a spouse had coming into the marriage, was a gift or inheritance by someone other than their spouse at any time and items purchased/acquired after date of separation as long as it was acquired with separate property or after separation earnings of that spouse.  Complications arise when separate property (typically a house or a business) increases in value during marriage as a result of the efforts of either spouse and/or monies paid from community funds.  There is a formula and reimbursements take place.  If you own separate property, you should keep it completely separate and do not commingle the money in a community account.  For example, if you own a house and the rental income pays for the mortgage, taxes, upkeep, HOA, etc., keep a separate bank account.  If you do this and no significant time was spent by you and no community funds were contributed, this will likely continue to be separate property with no offset to the other spouse -- except it might count as income for purposes of support.  Be careful to share all material facts and information with your spouse about community assets and debts during the marriage and until the property is divided to avoid claims of breaches of fiduciary duties.

How is custody determined? What is Joint custody and Sole custody? What is Legal custody?

This is a complicated question.  The easy answer is what is in the best interests of the children.  If you are in litigation, the best interests are determined by a judicial officer who may or may not agree with your position regarding best interests.  The Courts have wide discretion in this area.  The other problem is that the dockets are too full and little time is afforded to give the Judge the full and complete picture of your case, in the litigation realm.  Most people think joint physical custody is 50/50 timeshare.  It is not.  It is when each parent has a significant amount of time -- that might be 25% to one parent and 75% to the other.  When one parent has a very small amount of time with the children, it is sole physical custody.  Legal custody is the decision-making authority for the children.  It is extremely rare that one parent gets sole legal custody although it is often requested.  Parents must learn to co-parent regarding the children which is sometimes difficult, at least at first.  The big advantage in Collaborative Law and Mediation is there is greater flexibility to find the right fit for your particular family.

How is Spousal and Child Support determined? What if the other party doesn't pay?

There are guideline child support calculators:  XSpouse, DissoMaster, Family Law Software, DCSS Guideline Child Support Calculator.  There are many factors that are put in the calculator.  The factors with the largest impact are amount of income and percentage of time with the children.  Each party almost always pays one half of the day care for the children while a parent is working or obtaining education to become employed -- but not to get better employment.  There are many other factors such as payment of support to persons not part of this action or credits for children for which support is not received (called "hardships" and is discretionary with the Court). Each spouse will usually pay one-half of health-care costs not covered by insurance.  Spousal support (also known as alimony) can be determined by the same calculator for temporary spousal support or support from the time of the filing of the Petition until trial (but not always).  Permanent support is subject to many complicated factors as set forth in Family Code 4320.  There is really no such thing as "permanent".  Anytime there is a change of circumstances, up or down, either party can go back to court to change child and/or spousal support.  Wage assignments usually issue so the employer pays the support.  If DCSS is involved, they can confiscate tax refunds and can suspend driver's licenses and professional licenses.  There is a code provision for the collection of fees and costs incurred for failure to pay.  Otherwise, the collections are just like any other judgment.  There is a 10% interest for unpaid support.  This judgment does not have to be renewed like a civil judgment.

How long will it take to get divorced?

Your divorce cannot be final until 6 months after service of the Petition.  Sometimes, with a simple divorce and an agreement, the Judgment can be entered before the expiration of the 6 months but neither party can be re-married until a future date as set forth on the Judgment.  Depending on the complications in the case, a contested divorce will taken between 2-5 years in litigation; but typically a year to year and a half in Collaborative Law or Mediation.