Frequently Asked Questions
Divorce law can be a complex topic for those unfamiliar with the field. At the law firm of Fischer & Van Thiel, LLP, we have taken it upon ourselves to ensure that you are familiar with each issue that arises in a divorce.
Q: During a divorce and separating finances, will the joint bank accounts with just me and the children be split as community property? Or will they remain untouched? Main concern that the savings I, alone created for the kids have to be split with the respondent party?
This account would be community property. It was funded with community money, therefore it is community property. Had you set up the account as a trust for the benefit of the children, you could preserve that account as the children’s. You can definitely try and argue that it is the children’s money especially if you had proof that the account was established for the children and your spouse knew of this arrangement and agreed to it. You could also sit down with your spouse and ask that you both enter into a stipulation that the account be maintained for the children. He may agree to it, if not you will have to litigate this matter.
Q: What is rehabilitative alimony?
A: Rehabilitative alimony is a type of spousal support intended to help one spouse regain his or her financial and economic footing in the wake of a divorce. Rehabilitative alimony is usually awarded until certain criteria are met, usually including re-marriage of the receiving spouse or the attainment of a suitable job. When these criteria have been met, the alimony payments are terminated.
Q: What is the determination concerning what rights do each of us have as far as allowing others (her 22 year old son) to live in our house? Thank you. We divorced but own a house together. She has allowed her 22 yr old son to move back in.
This is something that should have been spelled out clear in your divorce judgment. There should be a provision in either your marital settlement agreement or stipulated judgment that lays out what the rights are regarding the house. The house is owned by both of you, so she must have been given exclusive use of the home. I would check your judgment and see if there are any provisions in there restricting who else could live there. If the judgment reserved jurisdiction over the house to make further orders, then you can file a motion asking for specific orders that the son not be allowed to reside in the house. You would need to have evidence to support why he shouldn’t be able to live in the house.
Q: My wife is accusing me of molesting our son, what do I do?
These are very serious allegations that your wife is making. I would not make any statements to the police unless you have an attorney present. Even if you have not molested your son, the allegations will be taken seriously. Typically, Child Protective Services will be involved and will conduct an investigation to see if the molestation allegations are founded or not. If CPS has reason to believe that the child is being molested, he will be removed from the home. If not, you might want to consider filing charges against your wife for making malicious allegations against you. I would contact a criminal defense attorney to help you with your case and do not willingly talk to the police unless you have an attorney present.
Q: Is there an advantage in filing for divorce first?
There is no specific advantage for filing first, but filing in general will give you an advantage. By filing for divorce it puts a restraining order on the community funds to make sure there is no fraud or misappropriation of the community funds. The community money can be spent for essentials only. This may be worthwhile for you since you are alleging there is theft of money going on. If that money is community property, you can protect is by filing and having her served.
If you are seeking the house as part of the settlement, you may want to consider living in it. If you are seeking the house as a condition of the settlement, then you should be living in it not her. If not then you need to ensure that the household bills are being paid especially if your name is on them.
Q: What Are The Grounds For Divorce In California?
In the state of California, the spouse requesting a dissolution of marriage is required to provide grounds for which the petition is being submitted, and most divorce filings in the state cite either irreconcilable differences or incurable insanity as the reason for divorce. California is a “no-fault” divorce state, meaning that if one spouse files for divorce and cites irreconcilable differences, they do not have to prove any wrongdoing, and there is little the other party can do to refute the divorce. Incurable insanity will be determined if sufficient evidence, such as testimony by a psychiatric or medical professional, is provided to determine if the spouse the divorce request has been filed against is incurably insane.
Make your divorce experience easier and less stressful by choosing a family attorney from Fischer & Van Thiel, LLP. Contact us at 858-935-6211.
Q: What Constitutes As Irreconcilable Differences?
Irreconcilable differences, simply known as a breakdown of a marriage, may result in a no-fault divorce. These differences typically involve spouses who are unable to come to terms on issues common within marriage. Such issues may include, but are not limited to:
- Raising of children
- Religious differences
- Personality conflicts
- Lack of spouses’ concern for the well-being of the other
- Financial difficulties
- Long durations of physical separation
- Lack of mutual interests
- Constant tension
Irreconcilable differences are just one of two categories under which a divorce can be filed in the state of California.
If you’ve found yourself drifting apart from your spouse and wish to end your marriage, contact a divorce attorney from the law office of Fischer & Van Thiel, LLP at 858-935-6211.
Q: My common law wife of 23 years abducted our 6 year old son 600 miles away (in state) without my consent. I filed a missing persons report with the police and they have not responded. What should I do?
Before dealing with the abducted child you parental rights need to be established judicially. California does not recognize common law marriages. We would need to file a petition to establish paternity and also get you a court date for custody and visitation. Right now since there is no court order that lays out any specific rules on your parenting, the police will not do anything. You need to get a court order in place to protect yourself in the future.
Q: What is the cost of a divorce in California? My husband and I have been separated, though not legally, for over 18 months. We want to begin the divorce process, but do not know what to do. We are on good terms and share custody of the kids. Would mediation be the way to go?
The first step would be to actually file for divorce. The Superior Court of California charges a filing fee of $395. If you both are on good terms and already have a custody and visitation plan worked out, it should be a pretty simple process. If the divorce is uncontested, meaning you can agree on all the issues, you can hire an attorney do to the work for a flat fee of $2500.
Mediation would be the way to go if you could not agree on the issues. The mediator job is to sit down and listen to both parties and come up with recommendations on how assets should be split. If you guys have everything worked out, there is no need for mediation.
Q: When parents have joint custody, do both need to approve of a child moving out of state for school?
In a situation like this, you can request an order from the Court allowing your child to attend the school. You would file what is called an order to show cause and get a hearing date. You will want to present evidence as to why going away to school is in the child’s best interests. The other parent would have to submit evidence as to why it is not in the child’s best interest. The judge will be able to grant the order for the child to move away.
How Can I Prove My Spouse Is Incurably Insane?
Filing for divorce on the grounds of incurable insanity is a challenge due to the fact that the burden of proof lies on the spouse filing for divorce. In order to prove to the court that one’s spouse is incurably insane, expert medical and psychiatric witnesses must be presented to the court. It is not a matter of whether or not the allegedly insane spouse suffered from a mental disorder at any point in the marriage. Rather, it must be proven that the disorder was present at the time divorce papers were filed and that said disorder will exist indefinitely. If young children are involved, proving incurable insanity will benefit the spouse making the claim. However, distribution of property or spousal support will likely not be affected.
Whatever your reason for pursuing a divorce may be, contact a family law attorney at the law office of Fischer & Van Thiel, LLP, at 858-935-6211.
How can I retain custody of my children in California?
My wife and I have been married since 2002 and we have two children, 8 and 5 years old. She kicked me out of the house and now wants to keep the kids. She is not a US citizen and cannot become one. My kids and I are born and raised in California. What should I do?
You should file for divorce and custody of the children. She can’t just unilaterally kick you out of the house if you are both on the lease or deed. However, she can keep the kids from you until there is a court order that the police can enforce. In order to protect your rights, you should file and get a specific parenting plan laid out so in the event that she tries to keep the kids or take them you can get the police to help you. Without a court order there is not much you or the police will be able to do.
The court will not likely take her immigration status into consideration when deciding who to award custody to. The Courts look at the quality of the parent and who can provide the most stable consistent environment.
How can she get child support?
In addition to filing for dissolution, she can file a motion with the court requesting child and spousal support. If she is unable to afford the services of an attorney, she can contact her local Department of Child Support Services (DCSS) for assistance. Also, Family Law Facilitator offices located in many courthouses can assist her in preparing the necessary documents to request support.
How do I begin the process of filing for divorce at a reasonable cost?
I need to file a divorce but do not have a lot of money to put out on it at this time. How do I begin the process in the first place and what is the easiest way to go about this that is not too costly also?
All of the forms required for a divorce proceeding can be found online and in a courthouse, including instructions on how to complete the forms. There are also family law facilitator offices that can provide legal assistance to you at no charge. Because of various procedural rules, having an experienced family law attorney would ensure a swift resolution of your divorce. Mistakes can significantly delay the process.
How do I get custody of my children again?
Two years ago I was at my now ex’s house with my two children when a raid took place for marijuana. I was clueless to the fact that he was growing marijuana in the garage. CPS was called and kids were taken. It has been a hopeless battle for me with false hope after me doing everything and more than was told to do I went to a very strict four days a week drug program, was drug tested three times a week, rehab, eventually rented my own apartment. I jumped through all the hoops. The father was asked to attend parenting classes and was granted full physical custody. We both share joint custody and I see my son four days out of the month and he controls everything and threatens that he doesn’t have to let me see him at all. I have not had a fair chance at all. I need help, even my criminal charges are the same as what he was charged with and I was just a guest that stayed the night at his residence.
If you have completed your rehabilitation program, are currently sober and have been keeping up with your court ordered visitation time, you will want to file an Order to Show Cause motion to modify the current custody and visitation order. Given the complexities of your case, it would probably be in your best interest to consult with an attorney.
How do I protect my children and me, as well as our rights, from my husband in California?
My husband was verbally and physically abusive towards my children and me. My friends and neighbors have documented this activity. I need to protect our rights. What do I do?
If you are in immediate danger you should contact the police. A police officer can help you obtain an emergency protective order. An emergency protective order can last for up to one week and will require your husband to stay away from you and your family. If you need protection for more than just one week, you can request a temporary restraining order. Any family law attorney can help you in filing the necessary paperwork for a restraining order. Additionally, there are many self-help centers and domestic violence programs at the courthouses in California. You can also contact the National Domestic Violence hotline at 1-800-799-7233. They can give you information regarding shelters, legal assistance, and programs that are available to help you.
How long does it take to get a divorce in California?
There is no set answer for how long a divorce can take in California, but there is a 6 month minimum. The Court will not grant you a divorce until at least 6 months after the respondent is served with the divorce papers or makes an appearance. Even if all the agreements are made and the case is settled, there is a time period the parties must wait until the divorce can be final.
The actual process of separating out assets and coming to an agreement on the settlement can take longer. This process can be a lengthy one depending on how many assets and debts the parties have accumulated during the length of the marriage. In addition, if children are involved it can take longer because custody is at issue.
In order to make sure your divorce moves along and is not held up for any mundane reasons, it is best to seek an attorneys help. The laws have recently changed regarding divorce and support in California and having an experienced attorney represent you to make sure you get the proper settlement is best. However, it is not mandatory to seek representation. You can choose to represent yourself in your divorce.
I filed for divorce but now I want to stay married, what do I do?
I filed for divorce, filed the proof of summons, and now want to revoke the papers because we are going to stay married…my husband has not yet filed. His deadline to file his papers is tomorrow. What do I need to do to ensure that the divorce does not go through and that we can stay married?
As long as your husband has not filed a response to the divorce, you can file a request for dismissal. This is a simple form that both you and your husband can sign and file with the Court.
I paid a lawyer to file my divorce but he is not my attorney on record, can I get help from another lawyer?
I paid a lawyer to file my divorce but he is not my attorney on record, can I get help from another lawyer?
I paid a lawyer to file my divorce papers and he has not completed forms. He is not my attorney on record. I am now experiencing a second time that it has been weeks that it has been impossible to get a hold of him. My simple divorce has to still be finalized and it has been over a year and a half since I filed.
Generally, if you hire an attorney, he or she will determine if there is an attorney of record and file a substitution of attorney themselves. Therefore, even if the attorney who you hired is your attorney of record, a new attorney you hire can file a substitution of attorney for you and take over the case. If you are not satisfied with the service you are receiving, you have every right to seek a new attorney. You should consult with an experienced family law attorney for assistance and to explore all your options.
If I reschedule my custody hearing court date, will that hurt my case?
I am a father and I have legal custody of my girls. Yesterday my spouse did not show to court becuase she had to reschedule. She does not work, but I do. If i miss my custody hearing, and I reschedule for the following week, is that bad for my case?
If you speak to the court and get permission to reschedule then no, it will not hurt your case. However, if you just do not show up to a hearing then that could have an adverse effect.
If someone in the Army gets a divorce, will they have to pay a lot of spousal support?
My friend is thinking of divorcing his wife but he is scared that she will get everything. He is in Army and she works at a factory. They got married August 14 2006. She is verbally mean and she has used weed. They have 3 cars. If he files for divorce will he have to pay her support?
The law in California allows spousal support to be awarded based on the parties’ income and certain factors the court looks at such as ability and opportunity to find work. California wants the supported spouse to become self supporting, but the Court does not want to leave one spouse with no sort of income or resources especially if the party is not employed. The military has its own laws regarding the payment of support, but these can be superseded by a Court order. Typically in the military, it is ordered that one half the BAH is given to the spouse as support. The Court looks at multiple factors that include income, standard of living during the marriage, income, age and education.
Even for a short term marriage such as yours the judge will likely award a support order but that is taking all factors into consideration. The standard in California is that support is awarded for half the length of the marriage. The longest period of time would be 2.5 years. The amount would be determined on the income of both parties.
Is it necessary to be legally or officially separated before you get a divorce?
We just decided to get a divorce. We have been married and living together for two and a half years. We never decided to separate legally, though my husband has been staying with friends lately. Do we need to be legally separated before we can get a divorce?
No, you do not have to be legally or officially separated before you get a divorce.
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.
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.
Q: Will a divorce court do an investigation to find out which assets I have in California? For instance, could they find out that I have a 401k?
The court itself does not do an investigation to find out what assets you have in California. However, during a marriage dissolution you are required to truthfully and fully disclose all of your assets and debts, including your 401k. There are consequences for failing to disclose all of your assets including having the judgment set aside, having the asset that was not disclosed given in its entirety to the other party and monetary sanctions. It is very important to be truthful in every step of your dissolution as every form you sign, is signed under penalty of perjury.
Can both parents agree to stop child support?
The custodial and non custodial parent agrees that child support should be stopped. Is this possible?
Yes, both parties can sign a stipulation stating that no child support will be paid as long as the custodial parent is not receiving aid. However, the court will retain jurisdiction over child support until the child reaches the age of majority. This means that at any time, the custodial parent can go to court and request child support.
Can I enroll my children in a school of my choosing if I am separated from my wife?
My wife and I have 5 kids. A month ago she left and moved across town. The 3 older kids (teenagers) stayed with me she took the 2 younger kids, ages 10 and 8. She then removed them from their school and enrolled them across town at another school against my objections. I want to do what is best for my kids and was wondering since we are still married and no papers have been filed, is there anything stopping me from picking my 10 and 8 year old up from school and enrolling them in their old school where they want to be?
There is nothing stopping you from picking them up, but it doesn’t solve your problem. There is nothing stopping her from then taking them out of school once again. In order to make permanent orders regarding where the children are to live and go to school you are going to have to file for divorce or legal separation and get some custody/visitation orders in place. The Court can make a decision where the kids will go to school. Their old school may be where they know everyone, but is there new school more convenient for the mom who has to take them and pick them up? These are factors the court will look at when making these decisions. Are you going to be able to help with the pick-up and drop off if you live clear across town? You need to think about what is best for the kids in the long run and that may be to go to the new school.
Can I start the proceedings for a divorce even though we are in the middle of filing a bankruptcy jointly?
Can I start the proceedings for a divorce even though we are in the middle of filing a bankruptcy jointly?
I badly want to get my divorce done but I am in the middle of filing a joint bankruptcy with my ex. do I need to wait until the bankruptcy is finished before getting the divorce?
You do not need to wait, in fact it will be better for you to file as soon as possible. In the state of California, it takes 6 months from the date of service on the other party to get a divorce. The longer you wait, the longer your divorce will take in the end. If you file now, at least the time will start tolling while you are figuring out your bankruptcy. Your finances will have to wait until after the bankruptcy but at least you can get the 6 month waiting period over.
You could also have a status only judgment entered and have the court reserve jurisdiction over the remaining issues until after the bankruptcy. You have options to consider, but you do not need to wait to file for divorce.
Can you change the determinations made in a divorce if circumstances change?
If someone uses the same divorce attorney and the divorce becomes final, can the terms be changed later? For instance, they said they would share custody of the children, but every time it’s my brother’s turn to have the kids for the weekend, his ex-wife comes up with a reason why she needs to keep them. Can he get custody in writing even though the divorce is already final? Also, his child and alimony payments were determined on his last two years of work. He has since lost his job and the ex-wife makes more than he does. Can you and how do you adjust the required monthly payments? He “owes” her $5000/month but doesn’t have a job. How is he supposed to pay this? Thank you for any help you can provide. Signed, a worried sister.
This is something that can be easily modified. You would need to file an Order to Show Cause to modify child custody, visitation, child support and spousal support. From there the parties would go to mediation and sit down with the mediator to discuss the current custody and timeshare plan. Your brother can then address all his concerns regarding the children at that time.
Support is calculated based on the parties’ income. He would need to submit updated proof of his income and expenses. If there has been a change of circumstances, the judge can revisit the support amounts and see if they are still the right amount to be paid. He needs to get the support modified ASAP, as he doesn’t pay arrears will build up and interest could be tacked on.
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.
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.
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.
It is true that most alimony payments are from husband to wife, simply because men are traditionally more likely to be the wage-earner in a given marriage. However, the law itself makes no distinction between genders, and simply awards alimony based on economic and financial factors. If the husband in a marriage stayed home while the wife worked, the court would order the wife to pay alimony to the husband. In other words, the imbalance between alimony paid by men and women is due to factors independent of the law.
After our divorce becomes final, am I entitled to any of my ex-spouse’s Social Security, retirement, or disability benefits?
Anything that was accumulated before the date of separation is part of the common property of the marriage. However, anything after the date of separation can not be claimed by the ex-spouse.
How is child custody decided?
Generally, parents will share joint custody of any children. If parents can agree on a parenting solution, a judge will generally let this plan become the custody agreement. If the parents cannot agree on a parenting plan, or if one parent feels the other parent is an unfit parent, the judge will determine how time will be allotted with each parent.
Can you get child custody with no job?
My husband is trying to control my every move. I want to leave but he said if I leave if can’t take my son because I don’t have a job. Could I get custody?
Yes, you can get child custody even if you are unemployed. The court considers the “best interests of the child” when determining custody and visitation. You will need to file for divorce and file an Order to Show Cause requesting that the court set orders for child custody, visitation, child support and possibly spousal support. It is likely that the court will order him to pay you support for the care and maintenance of your son and maybe even spousal support depending on your individual circumstances.
How can I get my husband to pay half of the divorce fees?
My husband abandoned me after 6 months of marriage. He was abusive and cheating. I let him have all the assets (which was not much…just all the furniture and that). I am an Australian citizen still living in California. My application for residency is being processed (under VAWA). He now is residing in Georgia. All I want is a divorce and want him to pay at least half of the the divorce fees. I know it is about $400 in total, but financially I am struggling. Is there any way the court can make him pay for half the filing fees?
If you cannot afford the fees for your divorce, you can ask the court for a “fee waiver.” In order to request a fee waiver, you would fill out a form called “Request to Waive Court Fees.” This form is available both online on the court’s website and at the courthouse. Also, if you do not qualify for a fee waiver, after you file the necessary papers for your dissolution, you can request that the court order your spouse pay half of the fees for the divorce. The family law facilitator’s office in the court can help you determine your best course of action.