The Process of Divorce
Divorce can be a long process and you may have a lot of questions concerning what exactly happens when you file for divorce. Here is a step by step explanation to guide you through this difficult time.
Petition for Divorce
Usually, you will have to first file for a petition in order to begin the divorce process. This document will identify you and your spouse and also any children that you may share. There must always be a reason for the divorce. Most cases of divorce state that they either have “irreconcilable differences” or that you are “incompatible” with your spouse. There are a number of ways to serve your divorce papers. A sheriff may serve them to your spouse or they may be served by a professional who specializes in serving divorce petitions.
Divorce orders will outline what must be finalized in order to complete the divorce process. These orders can range anywhere from child support expectations, child custody, and spousal support.
Divorce Discovery varies from state to state and will usually take up the bulk of your divorce process. This part of the divorce is used to gather information from both parties. Information could include bank statements or statements of income. This stage of the divorce can often be the most lengthy since one party may be hesitant to give up so much personal information for such a situation.
Your case will go to divorce court if not successfully mediated. Your unresolved case will go before a judge. This is the stage where you can argue your case before a judge. The judge will then settle the divorce based on the evidence and documents from the divorce discovery.
Finalizing the Divorce
After going to divorce court, you will sign a decree of divorce. The final decree of divorce will state important issues like: child custody arrangements, alimony, and child support.
Appealing a Court Order
If the final decree of divorce leaves you unsatisfied then you may file for a motion for appeal. You will file for the appeal with the same judge you dealt with in divorce court. Keep in mind, the more assets you have and the presence of children will drag the divorce on longer.
If you are considering filing for divorce, utilizing a reliable and knowledgeable attorney is a valuable resource during divorce proceedings. To schedule a consultation with the San Diego divorce lawyers of Fischer & Van Thiel, LLP, contact us today at 858-935-6211.
Mike's Top FAQs About Divorce401K plans and divorce
401K plans and divorce
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?
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.
Can I get child support in California if I am not getting a divorce?
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.
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.
Can I move out with my daughter before the divorce in California?
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?
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.
Question: Is there a statute of limitations on owed child support?
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.
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.
Is the opinion of the child ever taken into consideration in a divorce?
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.