Frequently Asked Questions
1. What is a legal separation?
The term “legal separation” generally refers to one of two things. More often than not, the term refers to the “date of separation,” meaning the date on which the parties ceased living together as husband and wife. The term also refers to a type of marital dissolution proceeding that begins by filing a petition for legal separation rather than a petition for marital dissolution. With one exception, a judgment for marital dissolution and a judgment for legal separation has the same result. Both judgments determine custody and visitation rights, child and spousal support rights, and divide community property. Both judgments result in the parties’ filing their income tax returns as single taxpayers. The only difference is that you cannot remarry if you have a judgment for legal separation. Legal separation judgments are rare and are normally only obtained when the spouses, for religious reasons, do not wish to terminate their marital status or when one of the spouses wants to continue carrying his or her former spouse on his or her group medical insurance.
2. What does a divorce cost?
Unfortunately, there is no way to know or to predict what a divorce will cost. In the final analysis, family law lawyers are highly paid plumbers. What they charge depends on how much of their time is required to resolve your case. The amount of time a lawyer or a member of his or her legal team spends on your case depends on the complexity of the issues involved, what needs to be done to protect your rights, and, most importantly, the willingness of the parties to reasonably settle their case without having to go to court. Even if you have to go to court, your willingness to settle smaller issues without court involvement can save thousands of dollars.
3. How long does a divorce take?
In California, there is a minimum six month period between the date on which a petition for marital dissolution is served and the date on which marital status can be terminated. Having said that, a termination of marital status at the end of six months does not automatically happen, and marital dissolution cases generally take longer than six months to resolve. Sadly, because of budget cuts and limited judicial resources, the time it takes to resolve a marital dissolution case is getting longer. You should not expect your marital dissolution case to be over in six months. Obviously, marital dissolution cases can take significantly longer if the issues are complex, and the parties cannot settle the issues without going to court. It is our goal to move your case along as quickly and as amicably as possible, keeping in mind that we will do whatever is necessary to protect your rights.
4. Does it make any difference if my spouse uses drugs, is an alcoholic, or cheats on me?
California is a “no-fault” state, which means that you do not need to have “grounds” for a divorce. In fact, by statute, each party is prohibited from introducing evidence as to why he or she wants a marital dissolution. Marital status will be terminated if either spouse is willing to testify that, in his or her opinion, they have “irreconcilable differences.” Evidence of drug abuse, alcohol abuse, or infidelity is irrelevant to the issue of marital status. The only way the court can consider such evidence is if it is somehow relevant to the issues of custody, visitation, or property division.
5. How long will I pay or receive spousal support?
When it comes to awarding spousal support, trial courts have a great deal of discretion. As a matter of legislative policy, each spouse is expected to contribute to his or her own support to the extent he or she is able to do so. By statute, if a marriage is less than ten years, it is deemed to be a short-term marriage. Typically, in the case of a short-term marriage, the supported spouse will receive spousal support for a period equal to one half the length of the marriage (meaning the time period between the date of marriage and the date of separation). If a marriage is over ten years, it is deemed to be a “marriage of long duration,” and a trial court will generally order the payment of spousal support until the death of the paying spouse or the death or remarriage of the receiving spouse.
6. Will my spouse have to pay my attorney’s fees?
Attorney’s fees are another area where trial courts have a great deal of discretion. Whether and/or how much one spouse pays of the other spouse’s attorney’s fees truly depends on the facts of each individual case. Typically, the higher-earning spouse will be ordered to pay at least some portion of the lower-earning spouse’s attorney’s fees and costs, keeping in mind the complexity of the issues involved, whether there is an available source from which the payment can be made, and whether the conduct of either party caused unnecessary fees to be incurred.
7. Does it make a difference who files for divorce first?
The short answer to this question is that it generally makes little or no difference who files first. An exception to this statement may exist if the parties have been separated for some time and are living in separate counties or states. In that case, the marital dissolution action will generally be heard in the county or state in which the petition for marital dissolution is first filed and served. Obviously, having to attend court and to litigate your case in another county or state could be a substantial disadvantage.
8. Do I get back the money or other assets that I had when we got married or that I received by gift or inheritance?
All property owned by a person before marriage or acquired by gift or inheritance during marriage is his or her separate property and must be confirmed to him or her as part of the marital dissolution process. This sounds simple but gets very complicated when applied to real-life facts. For example, the answer to the question changes dramatically if one spouse added the other spouse’s name to the title of his or her separate property. Similarly, a different result may occur if a spouse’s separate property was sold, spent, or hopelessly commingled with community property during the marriage. Separate property could become partially community property if it increased in value during the marriage due to the effort or genius of one of the spouses. Whether you actually get back your separate property depends on the specific facts in your case.
9. What happens when my spouse receives his or her income in cash or pays his or her living expenses through a family business?
Some of the most difficult family law cases involve the situation where the amounts the spouses reported on their income tax returns are not reflective of the amounts the family spent on their living expenses. This typically occurs when the paying spouse receives all or a significant portion of his income as unreported cash or when the family’s living expenses were paid by a family-owned or closely-held business. These cases are difficult because, if support is properly calculated, there are potential income tax implications. In this situation, both spouses need to listen very carefully to an experienced family law practitioner, who will undoubtedly recommend that a qualified forensic accountant be hired. In order for the court to set a proper level of support, evidence must be presented, establishing what the paying spouse’s true income would have been had, he or she kept proper financial records.