Call Today

(858) 935-6211

Contact Us

X

Call for Free Consultation

(858) 935-6211

Your Questions about Divorce Answered

The divorce rate in the United States has averaged around 50 percent in recent years. Nevertheless, most people are still unaware of the basic facts surrounding divorce law. In a divorce consultation, a lawyer will help those considering this legal option to understand likely outcomes regarding child support, child custody, and distribution of assets, among other things. Prior to filing a divorce claim, it is extremely important to consult an attorney in order to have any questions you may have answered and to make the process easier and less troublesome.

How Common Is Divorce?

Divorce in the United States is extremely common, though in recent years the divorce rate has seen a slight decline. People may choose to divorce for a wide number of different reasons, including:

  • Infidelity
  • Financial difficulties
  • Spousal abuse
  • Irreconcilable differences

Of all divorces, nearly 90 percent are uncontested, meaning that the terms are agreed on by both parties.

We Can’t Agree On Anything, Now What?

It isn’t uncommon for a couple seeking a divorce to fail to come to an agreement on how to go forth with the process. An attorney specializing in this field will make that process easier for both. Regardless of the specific circumstances in which you find yourself, a talented divorce attorney can help.

Contact Us

If you or someone you know is considering pursuing a divorce, we can help explain all of your options to you and guide you through this process. Contact the attorneys of Fischer & Van Thiel, LLP, today at 858-935-6211 to speak with a qualified member of our legal team about your case and learn more about what we can do for you.

Mike's Top FAQs About Divorce

401K plans and divorce

401K plans and divorce

Question Detail

If my spouse waives his right to my 401k plan, is there any circumstance that the court will still award him half or a portion of my 401k plan?

Answer

It is theoretically possible that a court can disturb an agreement to waive rights to property, but it is unlikely.  Courts will generally treat agreements as contracts, and thus are likely to strike an agreement only if it is unconscionable, induced by fraud, undue influence, duress or is against public policy. The judge cannot “reject,” nullify, or modify the provisions of an agreement merely because of his or her personal belief that a different arrangement should be made.

A marital settlement agreement, or MSA, can be used as a contract between spouses regarding the division of property that would otherwise be subject to community property laws. An MSA is subject to general contract laws, meaning that it can be found invalid if terms are against public policy (which includes, but is not limited to, (a) abrogating the statutory child support duty or impinging on the court’s jurisdiction to award child support, (b) limiting the court’s exercise of child custody jurisdiction, (c) “altering legal relations,” (d) “promoting dissolution,” and (e) providing for “fault”-based penalties at marriage dissolution) . The MSA can also be found invalid if entered into as a result of fraud, duress, menace, undue influence, or other factors which may make the agreement void or invalid.  Generally, an agreement such as the MSA is favored.  Hence, if there are no legal or equitable grounds for rescission or reformation it is binding on the parties and the court without express approval.

Posted in: Divorce, Family Law, Property Division

Can I get child support if I am not getting a divorce?

Can I get child support in California if I am not getting a divorce?

Question Detail

I have been separated for two years from my wife, and my kids live with me. Can I get support without filing for divorce in California? We have not been living together since our separation, and even file taxes separately.

Answer

You do not need to file for divorce in order to get support. You will need to go through the court to obtain a child support order so you will have to file something. You can contact your local Department of Child support services office and they can help you get started. So while you do not have to file for divorce, you can file for a legal separation. The court needs to know that you two have in fact separated and there is one parent who is the full time provides and therefore in need of support.

Posted in: Child Support, Divorce, Family Law

Can I move out with my daughter before the divorce in California?

Can I move out with my daughter before the divorce in California?

Question Detail

My wife and I are going to divorce, but we have not filed yet. We are always fighting, and my daughter, who is 7, is very stressed with the way we are living. Can I move out with her, if I do not move far away and let him see her all the time? He is not happy with my choice. Is this legal?

Answer

Yes, you can move out with your daughter, assuming there are no court orders already in place regarding custody and visitation. It is important to maintain frequent and continuing contact between the child and the other parent. When the court makes custody and visitation orders they will look highly upon the parent who facilitated contact with the child and the other parent. It is important to make the transition as easy as possible for the child.

Posted in: Divorce, Family Law

Is there a statute of limitations on owed child support?

Question: Is there a statute of limitations on owed child support?

Question Detail

An ex lover of mine (20 years ago) just approached me out of nowhere about getting tested to see if her son is my child. He is 20 and I live in California. I am trying to find the statue of limitations for child support if indeed I take the test and the child turns out to be mine.

Answer

Unless the mother has made a claim for child support with the welfare office or her local Department of child support services office, they cannot now collect from you on child support. Since he is no longer a minor child now that he is emancipated, there are no obligations for child support. You can get tested to see if you are the father, but you do not have to.

If the state has paid out welfare for the child, and it turns out that you are the Father, there can be some potential liability there with having to pay back the state the money they paid out. If this is not an issue, then they cannot now ask you to pay for child support.

 

Posted in: Enforcement, Family Law, Spousal Support / Alimony

Is the opinion of the child ever taken into consideration in a divorce?

Is the opinion of the child ever taken into consideration in a divorce?

Answer

Typically the Courts will take the child’s opinion into consideration at the age of 12. There is no set age, it depends on the maturity level of the child. If a child is of sufficient age and capacity to form an intelligent preference to custody the court can take it into consideration. It is important to note that all judges will rule for what is in the child’s best interests whether it be for the mother or the father.

Posted in: Child Custody, Divorce, Family Law

FAQs by Category:

Articles by Category:

Blogs by Category:

  • Testimonials

    • photo

      I was very happy with Mr. Fischer and his team! They helped me in a time of crisis and made sure the outcome was in my favor. Thank you s ...More

      Thomas Zachary
    • photo

      Thank you Mr. Fischer!!! I would and have recommended this Michael Fischer to friends. I had a very difficult divorce/child custody. He a ...More

      Elizabeth Mila
    • photo

      I was dealt with a man for over 2 years who was only concerned with breaking me and reducinghis support payments fo rhis children, Mr. Fi ...More

      David Sebastian
    • photo

      My wife and I started our divorce over two years ago, and I was at a stand still with my wife and my attorney at the time had no plan. I ...More

      Gabriel Dylan
    • photo

      I wanted to take a moment and thank Mike Fischer my divorce attorney for all that he did for me. He made a very difficult time much easie ...More

      Kaylee Victoria
    • photo

      Going through my custody battle was very emotionally trying. I was lucky to have choosen Fischer & Van Thiel to help me protect the m ...More

      Mithila Parker