1. What is family law?
“Family Law” legislates issues that pertain to family relationships, including marriages, parents-children, and registered domestic partnerships. Family law is designed to define the rights and responsibilities of all parties in these relationships and to provide guidance for a resolution when a dispute arises between them.
2. What types of cases do family law attorneys handle?
Family law attorneys can represent any client whose case in some way involves their family. Examples include (but are not limited to):
- Domestic partnerships;
- Legal Separation;
- Spousal support;
- Child support and child custody;
- Division of marital property;
- Name changes;
- Emancipation (releasing a minor to take responsibility for themselves apart from their parents);
- Reproductive rights;
- Paternity; and
- Domestic violence / restraining orders.
3. How do I choose the right family law attorney for my case?
Two factors are of utmost importance: Can the attorney be aligned with your goals, while ensuring the attorney is educating, advocating, and acting in your best interest, and will you feel comfortable working with them? Prior research (e.g. browsing attorney websites, reading online reviews, obtaining records from the local bar association) can help narrow the choices, but a personal interview via telephone, video chat platform, or even in person is the best way to sense if a given attorney’s work and communication style will mesh well with you.
4. What is the difference between a divorce and legal separation?
The primary difference is that in a legal separation, the marriage remains legally intact, inhibiting the ability for either spouse to purchase real property on their own and without the other party’s written consent, and inhibiting the ability for either spouse to remarry but also making it more easily reversible. Additionally, in California, there is no residency requirement to be eligible to file for legal separation, nor is there a mandated waiting period to finalize it, as there is for a divorce. In most other practical matters (property division, spousal support, child support and custody, etc), legal separation and divorce are identical.
5. How is child custody determined in a divorce case?
California typically awards joint custody to both parents. The judge may deviate from that trend and award sole legal custody to one parent if they believe it is in the best interests of the child. Examples of factors that may influence a deviation include, but are not limited to:
- The overall health of the parents and child;
- A parent’s capacity to care for the child;
- Particular emotional connections between the child and one of the parents;
- Maintenance of stability for a child in their home and school; and
- Violent tendencies or substance abuse by one of the parents.
6. What is the process for filing for divorce in California?
- Confirm residency eligibility: Either spouse must have lived in the state of California for at least six months, and in the filing county for three months.
- Submit paperwork: The spouse initiating the divorce (the “petitioner”) completes the following forms and files them with their county’s superior court:
- Form FL-100, “Petition — Marriage/Domestic Partnership”;
- Form FL-110, “Summons (Family Law);
- Form FL-105, “Declaration under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA),” if they have children together;
- Any other forms required by the local court;
- Filing fee ($435 – $450), unless waived.
- Serve the spouse: After the court files the above-referenced documents, copies of the above forms must be delivered to the other spouse (the “respondent”) by anyone 18 years of age or older who is not a party to the divorce. The respondent may also sign a Notice and Acknowledgment of Receipt to accept service of the documents.
Once the petition packet is successfully filed and served, the divorce case is officially opened.
7. What factors are considered in determining spousal support or alimony?
Alimony, an outdated term that is now referred to as spousal support, is not mandated in California. If awarded, whether on a temporary or long-term basis, the court considers factors, which include, but are not limited to:
- The duration of the marriage;
- The age and health of each spouse;
- The standard of living achieved during the marriage;
- The marketable skills and earning capacity of each spouse;
- The ability of each spouse to be self-supporting;
- Whether one spouse significantly contributed to the other spouse’s education to advance their career;
- The presence of dependent children and their needs;
- Whether one spouse engaged in domestic violence against the other.
California does not award nor adjust alimony based on the infidelity of one of the spouses.
8. What is the timeline for finalizing a divorce?
A divorce in California may take at least six months, though the average is about 15 months. The length depends on a number of factors; an uncontested divorce will naturally take less time than a highly contested divorce.
9. How are assets and debts divided in a divorce case?
California is a “community property” state. Unless superseded by a prenuptial or postnuptial agreement, all assets and liabilities (with some exceptions) that are acquired after marriage and before the date of separation are divided equally, 50-50, to each spouse. Assets and liabilities acquired individually before marriage or after separation are presumptively that spouse’s separate property.
10. What should I expect during the divorce process?
After the initial petition documents are filed and served, and any temporary orders (spousal or child support) are in place, the process enters a period called “discovery,” in which all necessary information to settle the divorce is collected. Thereafter, the parties attempt to negotiate in hopes of reaching a mutually agreeable settlement. If successful, the agreement is submitted to the court for ratification; if not, the court adjudicates the divorce itself. The divorce is considered final once the final divorce judgment is entered.
11. How can I prepare for a meeting with a family law attorney?
When you call to schedule your first appointment, you will be told what documents should be brought with you (marriage certificates, tax returns, bank statements, pertinent medical records, any previous legal actions, etc). It is a good idea to also keep a notepad with you in the days leading up to your consultation, on which you can write down your questions or important details about your situation that you do not want to forget later. Most importantly, prepare yourself to be honest and transparent with your attorney since hiding information, even if it feels embarrassing to reveal it, will not give him or her the full picture and may negatively impact your case later.
12. What are some common mistakes to avoid during divorce proceedings?
The most common mistake – and perhaps the most dangerous one – is to use the divorce process as a means of revenge against your spouse: failing to negotiate well, or attempting to use the court to tarnish the reputation of your spouse, will not only elongate the process (and make it much more expensive), but it will also likely backfire on you. Other mistakes to avoid can easily arise from clouded judgment, such as losing control of your finances, or, even worse, using your children as “spies” or “bargaining chips” in an attempt to get the upper hand. Above all, trying to navigate a divorce without experienced legal counsel will certainly result in a less-than-favorable outcome for everyone.
13. How can I protect my interests and assets during a divorce?
A prenuptial or postnuptial agreement will go a long way toward identifying – and thus protecting – each spouse’s separate property should a divorce later occur. If no such agreement exists, the first thing that must be done is to create a complete inventory of all of your financial instruments, categorizing them as either marital property or separate property, and then ensure that you maintain complete records of any transactions that impact those instruments. As soon as possible, isolate your personal finances by establishing your own bank accounts (but do not fund them with any money from joint accounts without consulting your attorney first), and cancel any joint credit cards or other means of establishing new community debts.
14. What should I do if I suspect my spouse is hiding assets or income?
If you suspect your spouse may be engaged in financial fraud, begin by collecting as much evidence as you can. For example:
- Tax returns;
- Bank statements;
- Photographs of unrecognized assets;
- Affidavits from friends and relatives who may know of your spouse’s fraudulent financial activities.
Your attorney will help guide you in this process and will be able to pursue any and all court remedies to collect information (e.g., subpoenaing bank records) and to protect you from any financial fallout (e.g., freezing accounts).
15. How can I modify or enforce a custody order?
In the state of California, there are two ways to modify or enforce custody orders:
- Both parents may agree to the changes and submit their new parenting and support plans for court review and ratification;
- One of the parents may complete a Form FL-300: Request For Order (along with any additional documents or local forms) and submit it to the court along with any documentation to support the request (change of employment, school records, reports from counselors or therapists, etc). The judge will then rule based on what they believe is in the best interests of the child.
If current orders are not met by one of the parents and attempts to work directly with them have failed to produce results, then a contempt court case may be the only way to redress their failures. Consult with your attorney immediately if you are in this situation.
16. Can I get a divorce without going to court?
While a judge’s signature is always needed to finalize a divorce and make its terms enforceable, there are three basic ways to avoid the court’s involvement along the way:
- An uncontested divorce, in which both parties agree to the terms that they themselves create, is by far the cheapest and fastest (not to mention the least emotionally damaging) option to avoid litigation;
- Mediation and collaboration, though technically different processes, both engage third parties (a professional mediator or each spouse’s attorney in a “four-way” discussion) to resolve differences;
- If those negotiations are unsuccessful, it is also possible to hire a private judge, or arbitrator, to make settlement decisions based on the facts they are given.
All of these methods permit divorce negotiations to be conducted outside of the court system. Reducing the time, costs, and stress of the divorce process and keeping all but the final settlement document out of publicly available court records.
17. How does the divorce process work if we have children?
In a divorce involving children, the primary question will be, “What is in the child’s best interest?” When the divorce is filed, temporary orders will be issued establishing the legal (decision-making) and physical (daily care) custody of the children. The final settlement may either leave intact or amend those orders depending on the negotiations of the parents and/or the judge’s decision. The bias is to maintain joint legal custody and shared physical custody (usually involving a visitation plan) unless specific circumstances (e.g., domestic violence or substance abuse) indicate that it would be unsafe or unhealthy for the child to do so.
18. What are my rights as a father in a custody case?
It is forbidden under California law to make child custody decisions based solely on the gender of the parent. The court will issue child custody orders based primarily on what is in the best interest of the child.
19. What are my rights as a mother in a custody case?
California law is gender-neutral in awarding legal (decision-making) and physical (daily care) custody of children in a divorce case. The parents both have equal rights of access to their children, and the bias is to award joint custody so long as both parents are deemed fit to care for their child.
20. How can I protect my children during a divorce?
The primary way to protect your children in your divorce is to keep the process as contention-free as possible. Fighting publicly with your partner may only increase the stress your children are already feeling. Consult with your attorney in negotiating custody and support decisions, and remember that, except in extreme circumstances of abuse or unsafe/unhealthy environments, time spent with both parents is crucial for your child’s overall development and success.
21. Can I modify a custody or support order after it has been finalized?
California law does provide for both parents to agree to and submit a new parenting plan for ratification by a judge. If both parents cannot agree to any changes, the parent requesting the change must complete a Form FL-300 Request For Order and file it with the court along with any documentation (including any local forms) to support their request. If the judge agrees that a modification is warranted and is in the best interest of the child, they will issue new and legally-binding custody orders.
For answers to all of your questions…
Family law matters are often very delicate and complex. Your divorce should not be navigated without the counsel of an experienced and knowledgeable family law attorney. For all of your questions regarding your particular case, contact the law firm of Hoover Krepelka today or fill our our form below to schedule a meeting with an attorney. Our team of highly trained and experienced family law attorneys will be happy to assist you.
While this website provides general information, it does not constitute legal advice. The best way to get guidance on your specific legal issue is to contact a lawyer.