FAQs

What are the grounds for divorce?

The grounds are irreconcilable differences and incurable insanity. By far the most common ground is irreconcilable differences.

Can my spouse stop me from getting a divorce?

No your spouse can not stop you from getting divorced.  For the grounds for divorce of irreconcilable differences, there is no fault on the part of the other party that needs to be proved.  The only evidence necessary in order for the divorce to be granted is your testimony that the relationship has irretrievably broken down. 

What happens if I do not want the divorce?

The divorce will be granted whether you agree that the marriage relationship has broken down or not. I encourage marital counseling whenever possible under these circumstances.

Who will get custody of our children?

While it is better if you and your spouse can decide on the custodial arrangements, where this does not happen the judge will decide what he thinks would be in the best interest of the children's welfare. Custody is broken down into "legal" custody and "physical" custody.  There is a presumption that both parties will have "joint" or "shared" legal custody after the divorce unless there is a history of domestic violence and/or restraining orders.  Commonly one party has primary physical custody and the other party has right to parenting time with the minor children. 

Will I get child support?

Child support guidelines in California use a complicated mathematical formula to determine the amount of child support. The factors that are used in the formula are the parties' respective incomes; the cost of child care; the cost of health, dental and vision insurance; existing support obligations for the children from a prior marriage or relationship, and the number of children along with the respective "time share" allocated to each of you within the custodial arrangement. If certain circumstances exist the parties can determine the amount, if any, that would be ordered.

Can I stay in the family home?

Normally the house is sold or one of the parties will buy the other's interest in the home. Where it is economically feasible and in the best interest of your children, you may be able to defer the sale of the home under limited circumstances.

Can I receive alimony or spousal support?

When determining whether to or how much alimony or spousal support to award a particular party, the Judge is required to take into consideration the many different factors listed in the California Family Code Section 4320. See below:

In ordering spousal support under this part, the court shall consider all of the following circumstances:

   (a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:

   (1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.

   (2) The extent to which the supported party's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.

   (b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.

   (c) The ability of the supporting party to pay spousal support, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living.

   (d) The needs of each party based on the standard of living established during the marriage.

   (e) The obligations and assets, including the separate property, of each party.

   (f) The duration of the marriage.

   (g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.

   (h) The age and health of the parties.

   (i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.

   (j) The immediate and specific tax consequences to each party.

   (k) The balance of the hardships to each party.

   (l) The goal that the supported party shall be self-supporting within a reasonable period of time.  Except in the case of a marriage of long duration as described in Section 4336, a "reasonable period of time" for purposes of this section generally shall be one-half the length of the marriage.  However, nothing in this section is intended to limit the court's discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.

   (m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4325.

   (n) Any other factors the court determines are just and equitable.

Temporary support may also be available while the divorce process is pending. Do not forget to address this with your attorney.

What property will I receive as when our divorce is final?

All assets accumulated by the parties during the course of the marriage including all bank accounts; investment accounts such as mutual funds, stocks, bonds, etc; retirement accounts such as IRAs and 401(k)s, and; pensions are normally considered part of the marital estate and as such are is community property and divided equally. It makes no difference to the court which party accumulated the asset or whether the asset is in the name of one party or the other or both. As long as the asset was accumulated by the parties during the marriage the court will presume that the property is community property and divided accordingly. While the court is required to divide such property equally, the parties can agree otherwise.

How much does it cost to get divorced?

It is difficult for anyone to know what will be the final cost of a divorce due to the varying issues. Generally attorneys will require that clients pay a retainer fee that is used to pays legal fees as they are incurred. An expected range for an hourly fee is from $250. to $450.per hour for an experienced family law attorney. The total in fees may range from $1000. to literally several thousands of dollars depending on the circumstance. There may also be other costs involved such as Court costs, appraisal fees, accountant's fees and the like. No two divorces are the same. It is best to try to come to an agreement as soon as possible, whenever possible.

Will I need an attorney to get a divorce?

An attorney is not legally required, however it is common for parties to improperly complete or file all the necessary papers required by the Court. Even if you and your spouse have agreed on everything, the work of a qualified attorney is will worth it.

Can I date while separated?

If you choose to do so one should be careful particularly where there are young children involved. I would recommend a good family psychologist be retained for guidance. It also makes great sense to be as discrete as possible since you do not want to inflame what may be already an extremely emotional experience for your spouse.

Do I have to go to the court?

Not necessarily. If an agreement is reached I may be able to file the necessary documents without a single court appearance. However, many court appearances can be common in some divorces.