Q: How long do I need to live with my significant other in order to have a common law marriage?
A: Common law marriage does not exist here in California, which means that unless you enter into a legal marriage, you do not need a divorce if you end the relationship. For long term relationships where the couple purchases property and co-mingles finances, it is often times a good idea to formalize their financial arrangements, property, and debt into a property agreement. A property agreement can help avoid an expensive, drawn-out battle if the relationship ends and the parties can’t agree on how to divide the assets and debts they’ve acquired. Additionally, taking the time to draft a carefully contemplated contract helps both parties to clarify their respective intentions.
Q: Am I obligated to continue providing health insurance for my soon-to-be-ex if the divorce has been filed?
A: Absolutely. Until the divorce is finalized, you are to maintain the same health insurance coverage for your spouse. Conversely, if you are the person on your spouse’s medical plan, he or she needs to keep you on that plan.
Q: How long does a divorce take in California
A: California law requires a waiting period of at least 6 months and one day after the Petition has been served. Often times though, divorces take much longer than 6 months to resolve.
Q: I’m the one who left my spouse. How is that going to hurt me in the divorce process?
A: It has no impact. California is a no-fault state, which means that it doesn’t matter who files first, who wants the divorce, or why either side wishes to have one.
Q: I just moved to California, but was married out of state. Can I file here?
A: Where you married has no impact on your divorce, but California law requires you to live in the state for at least six months before you can file for divorce. If you do not meet the residency requirement, you may file for a Legal Separation instead and amend your papers after you have lived in California for six months.
Q: My spouse cheated on me, and I want to tell the court that so they will know our divorce is his fault. Can I do that?
A: California is considered a “no fault state,” which means that the Court cannot make orders against the other side solely because the divorce is his or her fault. In general, your judge will not be interested in the reason for your divorce unless it has a direct and negative impact on your children.
Q: We have an agreement for our divorce, and we just want to get that entered. Do we really have to go to court?
A: In many cases, people complete their divorce through paperwork and never appear in front of a judge. At the same time, you need to be very careful that your agreement is drafted very carefully and that it is properly filed so that you are actually legally divorced.
Q: I just want to get this over with, how long will the divorce take?
A: It takes at least 6 months and 1 day to get divorced in California, after your spouse is served with your initial petition and summons for divorce.
Q: My spouse told me that he will take everything and leave me penniless, can he do that?
A: In general, everything acquired during the marriage is community property, which means that all assets (and debts) should be divided equally. This includes retirement plans, bank accounts, vehicles, and the household furnishings. In most cases, people do have assets to divide, and you may also be entitled to spousal support. If you believe your spouse will attempt to take more than his fair share of the assets, you need to be very proactive with filing for divorce and consulting with an attorney to protect your rights.
Q: My spouse told me that courts always side with mom when it comes to the children and that if I divorce her, I will lose our kids, is that true?
A: Definitely not true, please read our blog on common divorce myths at familylawyerblog.org
Q: My spouse told me that if I divorce her, the wife always gets alimony from the husband and I will be paying her. Is that true?
A: No. There are two types of alimony (which is called spousal support in California), “temporary” and “permanent.” These are legal terms, which means that the legal definitions are different from the everyday definition of these words. Temporary support is better described as “pre-divorce judgment support,” meaning support during the divorce proceedings. Permanent support means support after the divorce is finalized. Temporary support is based primarily on each party’s respective income. Permanent support is based on a number of different factors. In either case, there is no automatic award of spousal support.
Q: My spouse told me that if I divorce her, I will be paying her alimony forever. Is that true?
A: Permanent spousal support” does not mean forever and always. It simply means the amount of spousal support ordered after the divorce judgment is entered. The length of time a person needs to pay his or her spouse spousal support depends on a number of factors, including the length of marriage.
Q: My spouse told me that if I divorce him, I will lose my ability to claim spousal support because me asking for a divorce shows I don’t need him. Is this right?
A: Asking for a divorce does not mean you don’t need your spouse. All it means is that you no longer want to be married to him. Spousal support is always an issue that is brought up during divorce proceedings. That does not mean that you will always obtain support, but it does mean that the issue must be addressed.
Q: I heard that if we fight over custody or visitation of our children, we will have to go to mediation. What is that?
A: Mediation, which has now been renamed to “Child Custody Recommending Services,” is required if there is a custody or visitation dispute between parents. This process is intended to be positive and of benefit to parents. Rather than relying on a judge to make a decision regarding your children, the mediation process tries to empower parents to determine what is best for their children.
Q: My spouse cheated on me, can I really end up paying him support?
A: Although spousal support is dependent on many different factors, the reason for the divorce is not one of those factors, unless there has been domestic violence.
Q: I have heard that there are different kinds of child custody. What are they?
A: There are two types of custody, legal and physical. Legal custody relates to which parent has the right to make decisions about issues such as education, school, and medical care.
Physical custody determines which parent has the right to physically have the children with him or her, absent the other parent’s right of visitation.
Custody awards are usually expressed in terms of joint and sole. Joint custody means that both parents share in the rights associated with the particular form of custody, sole custody means one parent has the rights.
Q: I have heard that the courts are really backed up. What if I need help now?
A: It usually takes about two months before you can see a judge, but with the current California budget cuts, it may take up to four months.
There is a process called an “ex parte request” that allows you to receive a Court date much faster if the judge determines that there is an emergency. Usually these emergencies relate to minor children. For example, if one parent moved out of state and took the children with them, a judge is likely to want to hear your case sooner rather than later.
Q: I want to file for divorce, but I am scared of my spouse. What should I do?
A: It is extremely important that you have a plan in place before filing your divorce paperwork for your safety, and the safety of your children. Having an “exit strategy,” including alternate living arrangements, changing your contact information, removing important documents from the home, and securing the best legal representation possible is vital. If you are a victim of domestic violence, you should look into the protection a restraining order offers.
Q: If I have a criminal conviction, can I still get custody of our children?
A: It is possible to still share custody of your children with the other parent even if you have a criminal background, but if you have been convicted of domestic violence or are a registered sex offender, it will be much more difficult to share custody.
Q: My husband said that if I divorce him, he will disappear with our child, what can I do?
A: As unintuitive as it may seem, filing AND serving your husband with divorce papers offers you more protection than waiting to see if your spouse follows through with his threat to take your child. Until you file, the law assumes that the two of you are married and have equal rights to your child, and law enforcement will not interfere with marital disputes unless there is domestic violence. Once there is an active divorce case pending, the law recognizes that you are separated and that there very well may be a custody dispute. After filing for divorce, you can also request emergency custody orders based on your husband’s threats. It is very important that you seek legal representation if your spouse is threatening to kidnap your child as soon as possible.