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What are the legal grounds necessary for obtaining a divorce?
California is a "no fault" divorce state, meaning that no matter what the reasons are for the divorce, either party can file without having to state a specific reason. Most cases list "irreconcilable differences" as the grounds for a divorce.
How long does it take to finalize a divorce?
You can have your marital status terminated as soon as 6 months after your spouse has been served with your divorce petition. However, if there are issues to be litigated, your divorce may take anywhere from a year to two years, depending on the complexities of your case. While your marital status may be terminated as early as six months from the date of service, if there are other issues remaining, it may not always be advisable to do so, due to a host of factors which I will be happy to discuss at length with you.
Once I file for divorce, do I or does my spouse have to move out of the house?
Neither of you do, unless one of these conditions apply: (1) if there is a request for a move out order via a domestic violence temporary restraining order; or (2) if you can prove to the court that the situation in the house is so volatile that one party should be awarded temporary exclusive use and possession of the house. In most cases, however, both parties may continue to reside in the house until the divorce is finalized.
Will I have to pay my spouse's attorney fees?
You may. Attorney fee awards are based on your spouse's need and your ability to pay. Often times, if there is a significant disparity in income or if there are liquid assets available to you, the court will order you to make a contribution to your spouse's fees.
Is there a preference in granting custody rights to mothers over fathers?
Not necessarily. When the courts are making custody decisions, their primary concern is the best interests of the children. Often times, this translates into creating as little disruption as possible in the children's lives. If other factors, however, such as child abuse, substance abuse, or neglect are present in your case, these may be of top concern to the court in granting custody to one party versus the other. It just so happens that even in our modern times, mothers are still the primary caregivers to children. If the court finds that this is the case in your relationship, it may be that they continue to allow the mother to be the primary caregiver. However, more and more, we are seeing that fathers assume the role of primary caregiver to children. In such an instance, there is a good chance that the father would continue to be the primary caregiver. Custody decisions are made on a case-by-case basis, depending on the unique facts of each case.
Am I entitled to child support?
You may be. Simply put, child support is calculated by taking into consideration each parent’s timeshare percentage with the children and each parent’s income.
Am I entitled to spousal support?
You may be. Spousal support, unlike child support, is a bit more complex. Often, at an initial support hearing, the court will just look at each party's income in awarding spousal support. As the case progresses towards settlement or trial, other factors will be considered, such as age, health, earning ability, length of marriage, marital standard of living, etc.
What is the meaning of “community property?”
Community property is a presumption that everything that is earned or accrued during the marriage belongs to both parties equally. If a party believes that an asset is their separate property, then it is that party’s burden to prove that the asset was earned prior to marriage, after date of separation, or by inheritance, devise, bequest or descent.
Does my spouse have an interest in my retirement plan or pension?
If all or even a portion of your retirement plan or pension was earned or contributed to during the marriage, then yes, your spouse would have a one-half interest in that portion. With most retirement plans or pensions, a Qualified Domestic Relations Order (“QDRO”) is prepared so that your spouse’s interest may be rolled over into a separate plan for your spouse, without you having to incur any tax penalties for early withdrawal.
I am scared that if I serve divorce papers on my spouse, my spouse will get extremely angry. Can I get a restraining order against my spouse before I serve him/her?
No. Domestic violence restraining orders cannot be issued based on a fear that something may happen, without something more. Something must have happened first (some threat of death or serious bodily injury and/or an actual act of violence against you) before the court will consider granting a restraining order. Even then, the court will tread cautiously by initially only issuing a temporary restraining order. A hearing will be set within 20 days of the issuance of the temporary order to allow your spouse or significant other the notice and opportunity to defend themselves against the issuance of permanent restraining order. At this hearing, the burden will be on you to prove that a basis for a permanent restraining order exists.