(800) 404.4545
This is for general information and is not a substitute for individual legal council regarding your particular situation.
Divorce 101: The Basics
What is a divorce?
A legal ending of a marriage.
Do we both file for divorce?
No. Even if both of you agree to the divorce, only one spouse files the divorce petition with the court.
What is Legal Separation?
A legal separation enables you to divide both assets and debts, determine child custody and visitation, and set-up child and/or spousal support while still remaining legally married.
Some opt for Legal Separation for reasons such as: they do not meet state residency requirements, religious purposes or for health insurance reasons. Please note, Legal Separation does not automatically lead to divorce. It is also not to be confused with the 'Date of Separation'. Also, Legal Separation is not required before filing a divorce.
What is a Date of Separation (DOS)?
This is the date you determine your life as a married couple has ended. In some cases the date may be arbitrary since some couples continue to live together even after the (DOS). It is strongly recommended you consult with an attorney to determine what laws are applicable to you.
Please note: Income and expenses that occur after the (DOS) are considered separate property.
How long does a divorce take?
It depends. In California the waiting period is a minimum of six months but depending on your situation and what issues need to be resolved it could take longer.
What does “No-Fault” mean?
Until no-fault divorce arrived in the 1970's, the only way you could get a divorce was to prove the other spouse was at fault for the marriage not working. No-fault divorces are usually granted for reasons such as incompatibility, irreconcilable differences, irretrievable or irremediable breakdown of the marriage.
Can my spouse prevent me from getting a divorce?
No. California is a “no-fault” state (See Above Question). This means you may divorce your spouse for any reason.
What if my spouse is abusive?
Seek help IMMEDIATELY.
The National Domestic Violence Hotline is: 1-800-799-7233 (SAFE)
What are the residency requirements for filing divorce in California?
You or your spouse must be a resident of California for six months. Also, you or your spouse must be a resident of the county where the dissolution action is filed for three months before filing filing.
Can one party get exclusive use of the marital house?
Yes, a court may order exclusive use of the marital residence for a certain amount of time. You or your spouse must bring an appropriate motion including valid reasons as to why you should get exclusive use of the house. The court may order exclusive use if, for example, there are allegations of domestic violence.
What is a Modification?
It is a change of an existing court order. If you want to modify a court order, you need to follow the same rules when the order was initiate. The first step would be to file the motion with the court asking for the change.
Please note: It is the job of whoever is bringing the motion to show that a change in circumstances is justified.
What is Annulment?
Annulment erases the marriage and its implications as though you had never married.
Here are some reasons that may allow annulment:
- Incest
- Bigamy (multiple spouses at the same time)
- Lack of informed consent to the marriage.
- The husband or wife of the prior marriage was believed to be dead at the time of the subsequent marriage, but in fact was not.
- Unsound mind
- Fraud
- Force, unless afterwards the party who was forced into the marriage freely cohabited as husband and wife.
- Either party, at the time of the marriage, was physically incapable of consummating the marriage, or the incapacity appears to be incurable.
Most of the conditions require that an action is filed within four years of the discovery. An example of this is a discovery of facts constituting fraud. Even though a Judgment of Nullity voids the marriage, you may be able to obtain support, a division of property and restraining orders. Children do not necessarily bar a party from obtaining a Judgment of Nullity.
What is Property?
House(s), car(s), jewelry, etc. Also, assets, debts, loans, credit cards, businesses, professional degrees, retirements/pensions, intellectual property and so on. This is an area where you should consult someone who is knowledgeable about the financial implications of divorce.
What is Separate Property?
All property you own before the marriage or acquired by gift, or inheritance. Example: George and Ann are married. George gets $10,000 from Aunt Lilly when she died. He puts the money in an account in his own name. That most likely is his to take from the marriage without being divided. If George deposited the funds into a joint account, the money would likely not be considered Separate Property.
What is Community or Marital Property?
In California, Community property is all real or personal property acquired during the marriage. Typically, all property acquired during the marriage is subject to a 50-50 split upon dissolution of the marriage. Income earned during the marriage is also considered community property, including income from a separate property investment account. Example: George earns $100 interest on Aunt Lilly’s money which he deposited into a separate bank account in his name only. The $100 is community property.
How are pensions and other retirement benefits treated in a divorce?
Pension and retirement benefits earned during the marriage are considered community property and hence subject to 50-50 division. The pension or retirement benefits earned prior to the marriage or after the DOS is not considered community property.
Again, consult with someone who is knowledgeable about finances around divorce.
Collaborative Divorce
What is a Collaborative Divorce?
Collaborative Divorce is a conflict resolution process also called Collaborative Law or Collaborative Practice. This relatively new process is a joint effort by you and your spouse, and two attorneys to work out the existing issues.
A full team is comprised of:
- A Neutral Financial Specialist.
- An Attorney For Each Spouse.
- A Mental Health Coach For Each Spouse & Child (if applicable).
Collaborative Divorce is similar to Mediation with many of the same benefits (particularly saving both parties time and attorney’s fees).
If Collaborative Divorce does not work you may unilaterally, and without reason, terminate the Collaborative Process and proceed toward court intervention/litigation. However, unlike mediation, all prior work from the Collaborative Divorce cannot be used in the litigation.
What are some advantages of Collaborative Divorce?
Since Collaborative Law is designed for the purpose of negotiation, neither attorney involved may become the “attorney of record” and represent you or your spouse in court.
Why is this a benefit? This prevents the prospect of court proceedings from becoming a "weapon" during negotiations. This is particularly important in cases where there might be different levels of power in the relationship. This process requires full disclosure of all needed information. Just as with mediation, this is confidential.
What is the Process of Collaborative Divorce?
The first meeting will be spent gathering information. The collaborative team will review the information and support the couple in developing a range of settlement options and alternatives.
What are the benefits of Collaborative Divorce?
- Typically, less cost than litigation (court)
- Typically, less time spent
- More control and ability to focus on the issues the parties feel are most important
- Expert Advice, specifically in financial matters, is available during the process.
Divorce Mediation
What is Mediation?
Mediation is a method of resolving differences between you, your spouse and a neutral 3rd party (the mediator). In divorce mediation the only people making decisions are you and your spouse. This is different than arbitration or litigation where a judge or arbitrator makes the final decision.
During the mediation meetings, you will discuss the issues which need to be resolved. The mediator will facilitate the discussion, assist with communication, provide information and use their specialized training to assist you in resolving differences. An agreement is written which is fair to both of you and, if you have children, is in their best interests as well.
Issues that can be resolved in divorce mediation are (but not limited to):
- Property Division
- Spousal & Child Support
- Child Custody & Visitation
Mediation can be used at any stage of the separation and/or divorce process.
Why Mediation?
- It is practical & healthier emotionally.
- Less stress.
- Typically, the least expensive divorce option.
- Helps place emotional pain of divorce behind you quicker.
What is the process of Divorce Mediation?
You and your spouse will meet and work with the mediator towards a settlement that is fair and agreeable.
The written settlement agreement is then reviewed by an attorney of each party’s choosing and is processed through the court by that attorney without the need for court intervention.
What makes a Mediator different from just a neutral friend?
Divorce mediators have been trained specifically to mediate divorces. There are power issues that many times are in play within a relationship and mediators are trained to recognize those and keep the playing field level for mediation to occur.
Aside from training specifically in mediation, many times mediators have previous professional experience to pull from such as a legal or financial background. Since divorce has enormous financial implications it would be suggested that you talk to someone about how your situation will financially affect you.
Why is Mediation cheaper?
Mediation is cheaper because it is faster and more direct. Rather than working through two lawyers, you work with one mediator about your goals and issues. Even if lawyers are involved with your mediation, they are not spending hours in court waiting for the judge to hear your trial (which you get billed for).
Why is Mediation more effective?
- You get a chance to fully discuss an issue before you agree on it.
- You can try out agreements before the judge makes the divorce final.
- You can ‘Sleep on it’ and think about whether or not a proposed solution makes sense.
- If you need to change a solution before finalizing your divorce in court you can do so relatively easy.
Can Mediation work if we can not even talk?
If you are willing to try, then it is worthwhile to try mediation. Think about it, no one gets a divorce because they can communicate perfectly. Mediators have been professionally trained to work with people to build agreements. If you’re willing to try, mediators can get you talking.
What happens in Mediation if we can not agree?
Even if you cannot agree on everything, you will probably be able to agree on some things. Each issue you resolve in mediation translates into less time (and fees). Those issues you could not agree upon, at least you understand what those issues are, and where you stand which is a HUGE step.
If we can not settle in Mediation, can I tell the judge my story and let the judge decide?
You can always stop mediating and begin litigating.
Who is a good candidate for Mediation?
All couples who are divorcing or splitting up (if not married) are good candidates for mediation provided:
- Both spouses are willing to try to resolve their issues in good faith.
- Both spouses agree to be honest about their financial situation and intentions regarding children. California law requires that spouses make a full financial disclosure to each other during a divorce.
What happens at the first Mediation meeting?
The Mediation process involves sitting down at a table in a neutral location where you will have the opportunity have a frank and honest discusion about your position and the mediator will then will work with you toward movement on the points of contention. This can happen together with your spouse or separately depending on your situation.
Sometimes, people find they need more information before they can make an agreement or before a session can continue. When this happens, the mediator can either move to another issue or stop the session and make another appointment to allow time to gather the information you need, or speak to your accountant, lawyer, or other advisor(s).
Mediation works best when you do not feel rushed to make an agreement and when you have all of the information need.
Pros and Cons of Court vs. Mediation?
Cons of Court:
- Time consuming. Much of the money you spend on legal fees will be for time waiting in court.
- Scheduling conflicts between courts and litigants cause expensive delays.
- Judges have little time to hear the details of your case, often less than 5 minutes.
- You can’t predict the outcome of your case .
- You may have to make decisions about settlement in a split second in a crowded hallway.
- No confidentiality since all court files are public records.
- Costly--each hour your lawyer spends waiting, you pay, even if no progress on your case is made.
- Stressful.
- Much more difficult on the children.
Pros of Mediation:
- Typically Faster: you determine the schedule and issues.
- Cost-effective: You have more control of the time spent and time equals money.
- Less Stress: You have more control over the agreement
- With more control, agreements made in mediation typically work better.
- Flexible: You can take time to consider how a decision will affect your family in the long term and you can try out agreements before signing the Judgment or Agreement.
- Confidential - California law prohibits Mediators from testifying in court.
- Healthier for you and your family. This is especially important when children are involved.
- You can always go to court if mediation does not work.
How do mediating spouses protect their legal rights?
Before the agreement is signed a neutral attorney will review it and make sure you know and understand your legal rights before agreeing and signing the settlement.
Does the Mediator meet with both spouses together or separately?
Some Mediators prefer to work with you separately, acting as a go-between. Others prefer joint meetings so communication can be more direct. There can be advantages and disadvantages to each approach and it depends on your circumstances. This is a question you should address in advance with a potential Mediator.
How much does Mediation cost?
Most mediation involves an hourly or per-session fee. The number of sessions needed to gather information and negotiate an agreement will vary, as a result the cost of the mediation will also vary, but typically mediation is much cheapier than a traditional, litigated divorce.
How long does Mediation take?
Mediation almost always takes less time than litigation. Depending on the issues, it can even take place in one day, although most divorcing couples meet for several sessions over a period of time.
Do I need to file for divorce if I want to go through Mediation?
You don’t necessarily have to file for divorce before beginning mediation, although many people do. Mediation could help you decide who will file and how you will share the costs.
Note: The actual divorce filing is what starts the clock to finalize the divorce.
Child Custody & Support FAQs
Who decides who gets custody of the children?
If you cannot agree , then a judge may decide what the custodial arrangement of the children will be.
How is custody of our children determined?
Child custody is generally determined by keeping the children with the primary caretaker. Courts tend to prefer a joint custody arrangement.
How is child support determined?
Child support is determined by a state mandated formula, and takes into account: the amount of time each parent sees the child, the number of children, income and tax filing status. Some expenses that are used for the care of the children (e.g., medical premiums) may be included in this calculation.
How do I modify the current order for child support?
You have to file with the court asking that the judge modify the existing order based on a 'change of circumstances'. Usually this means serving the other parent with a new income and expense declaration. The other parent then has a certain amount of time to file their response. The court will give you a date and time for the hearing, at which point the judge will make a ruling.
The modification is normally retroactive to the date the motion was filed, so if you believe that you are entitled to more child support, it is best to file as soon as possible.
Spousal Support
Will I have to pay spousal support?
Chances are if you make significantly more money than your spouse, you may have to pay spousal support. There are no firm rules regarding spousal support but the general rule is that you may need to pay for one-half the number of years you were married, unless your spouse becomes self-sufficient, moves in with someone or remarries.
How is spousal support calculated?
Each court utilizes a variety of factors. The judge will attempt to weigh all the factors to make an order which will achieve “a just and reasonable result in each case.” However, this may be a moot point if the divorce settlement is mediated and the couple agrees to a specific support payment.
How do I modify the current order for spousal support?
You have to file with the court asking that the judge modify the existing order based on a “change of circumstances”. Usually this means serving the former spouse with a new income and expense declaration. The former spouse then has a certain amount of time to file their response. The court will give you a date and time for the hearing, at which point the judge will make a ruling.
The modification is normally retroactive to the date the motion was filed, so if you believe that you are entitled to more spousal support (or should be paying less) it is best to file as soon as possible.
What about Social Security?
If you are divorced after at least 10 years of marriage, you can collect retirement benefits on your former spouse's Social Security record if you are at least age 62 and if your former spouse is entitled to or receiving benefits. If you remarry, you generally cannot collect benefits on your former spouse's record unless your later marriage ends (whether by death, divorce, or annulment).
Taxes & Tax Returns
*These are for general information and do not replace tax counsel for your individual situation.
What is my tax filing status after divorce?
Either single or head of household depending on who has the children (claims the children if there are any in your situation).
What does head of household mean?
To qualify for head of household status, you must be either unmarried or considered unmarried on the last day of the year. e.g.: Divorce is final Dec. 31, 2008. When filing your 2008 tax return you are still married.
During the divorce should we file our taxes 'married filing separate'?
Unless you are worried about fraudulent tax information (e.g.: you know your spouse is embezzling money or something of that nature), it is very rare that this tax filing status will produce better or even the same results as far as tax burden. Again, consult your tax advisor.
Are child support payments taxable?
Just remember that when it comes to support, only one person has to pay the taxes on the money. Both parties are not going to be taxed on the same chuck of money.
Child support payments: the parent paying pays the taxes, not the parent recieving the support payments.
Are spousal support payments taxable?
Spousal support is tax deductible for the spouse paying and IS claimed as taxable income for the spouse receiving the support payments.
Divorce 101 (The Basics):
Collaborative Divorce:
Divorce Mediation:
Child Custody & Child Support:
Spousal Support:
Taxes & Tax Returns:
About Us
Mediation
Other
Resources
DIVORCE (FAQ's)
