When first considering a divorce, the sheer amount of questions you have might feel a bit overwhelming. Aside from knowing no more about family law than the average person, you also might be unsure where to begin. Fortunately, we understand how intimidating any legal issue can be, and we’re here to answer some of the most frequently asked questions our divorce lawyers get asked.
What Are the Legal Grounds for Getting a Divorce in California?
California is a ‘no-fault’ divorce state, which means the spouse or Registered Domestic Partner who files first doesn’t have to prove the non-filing spouse or domestic partner actively harms them or otherwise makes their life worse. To get a no-fault divorce in California, only one of the spouses or domestic partners has to state the couple simply cannot get along anymore. The legal term for this is ‘irreconcilable differences.’
The spouse or domestic partner who files first can decide to end the marriage of their own accord. What’s more, even if the non-filing spouse or domestic partner doesn’t want to divorce, they cannot stop the process simply by refusing to participate in the case. In this scenario, they can still get a ‘default’ judgment and the divorce will be granted.
How Much Does a Divorce in Sonoma County, Napa County, or Mendocino County Cost?
The initial court filing fee is $435, although this number can vary slightly from case to case. Other expenses, such as hourly rates for attorneys and additional court fees, vary widely from case to case. The total cost will also depend on whether or not the case is contested and if the couple has to bring in additional professionals such as forensic accountants, appraisers, custody evaluators, etc., throughout the divorce proceedings.
Uncontested divorce cases can be relatively simple and inexpensive, as all the couple has to do is sort out the paperwork and work out agreements. The general rule of thumb is the longer you have to spend in court, the more money it’s going to cost you.
What Forms Do I Need to File an Uncontested Divorce in Sonoma County?
For divorces, to begin with you’ll need a Petition, Summons, Proof of Service of Summons, and perhaps a Property Declaration. If there are minor children involved, then you will also need to file a Declaration under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) along with a child custody and visitation (i.e., parenting time) application attachment.
How Long Does It Take to Get a Divorce?
A few key factors affect the duration of a divorce case:
- Residency Requirements – These requirements vary from state to state: California’s residency requirements, for example, require people to live in the state for six months before they are considered residents. Only one spouse or domestic partner needs to be a California resident to file for a divorce in the state. Additionally, one of the parties must be a resident of the county where the divorce will be filed for at least three months.
- Separation Requirements – Some states require couples to live separately for a period before filing for a divorce. Although California is not one of those states, it does have a minimum length for all divorce proceedings: six months. This means that all divorce cases in the state must be at least six months long, and there are no options to shorten that period, either.
- Additional Requirements – California is a no-fault divorce state, meaning the only thing standing between an unhappy spouse or domestic partner and a divorce is a little paperwork. Other states are not as lax with their divorce rules. Some even require couples to go through marriage counseling before or during their divorce case.
I Am in Both a Registered Domestic Partnership and Same-Sex Marriage. Do I Need to File Separate Divorce Cases?
Thankfully, no–you can use the same paperwork to legally end both unions in the same case. All you have to do is check both boxes on the required form to show you are ending both the marriage and Domestic Partnership . In certain limited circumstances, a Registered Domestic Partnership may be terminated by filing a Notice of Termination of Domestic Partnership with the California Secretary of State.
How Is Property Divided in a California Divorce Proceeding?
California is a ‘community property’ state, which means all property in a marriage is either considered ‘community’ (belonging to the couple) or ‘separate’ (belonging only to one spouse). Community property typically includes all the property the couple acquired together during their marriage. Whereas, separate property denotes property that was separately acquired by the spouses before their marriage or after their separation.It can also refer to gifts or inheritances received during the marriage.
Unless a prenuptial agreement states otherwise, community property is divided equally in a California divorce case, and each spouse or domestic partner will retain their separate properties. Of course, the spouses can agree to divide property as they wish. The trick is determining which property is community and which is separate, as they often have mixed-components. It’s also in coming up with agreements both spouses will agree on. If there’s a dispute as to whether property is community or separate, a judge can decide. An experienced family law attorney can help you out with these difficult aspects of divorce.
What’s the Difference Between Legal and Physical Custody?
The decisions made on behalf of the child or children’s welfare, which generally include education, healthcare, extracurricular activities, religious activities or institutions, travel, and living arrangements, are considered legal custody. Physical custody, on the other hand, denotes the parent with whom the child or children spend a significant amount of time.
Parents can share legal custody, where they may make these decisions without always requiring the other parent’s permission. Disagreements on decisions over the child or children’s upbringing becomes a problem when it starts to interfere with the children’s welfare or the custody agreement. Parents may revisit court for reevaluation of their custody and visitation agreements/parenting plan if they have problems agreeing on decisions. The court may order that both parents have to agree when it comes to making specific types of decisions such as medical decisions, or where the children go to school. Or, the court may order one parent to have control over some or all of these decisions.
Physical custody refers to when a parent has significant periods of time with the children. Parents can share physical custody, which means the child or children will split their time between their parents’ residences, according to the parenting plan developed by the parents or the court. Some parents considering “50/50” joint physical custody worry about splitting the time right down the middle. But, practically speaking, this rarely happens. An equal timeshare is not required for both parents to share joint physical custody. The parent with whom the child or children spend most of their time is usually the primary custodial parent. The parent who does not have primary physical custody is called the non-custodial parent, but they usually have visitation rights.
Some parents have joint legal custody but not joint physical. This could mean both parents make the important decisions regarding the child or children’s welfare, but the child or children will spend most of their time with only one parent.
How is Child Support related to Custody and Visitation?
Child support orders may pose an issue in some custody arrangements, especially if the parents cannot seem to work together. However, take note that the state of California views child support orders and child custody and visitation arrangements separately. This means that you cannot refuse to let the other parent see the child or children, even if they haven’t been making good on their child support payments. Conversely, you cannot refuse to pay child support, even if the other parent is refusing to let you see your child or children.
Child support is only related to child custody and visitation in the sense that how much time you spend with your child or children directly affects the amount of child support you pay or receive.
How Are Custody and Visitation Rights Decided?
Typically, joint custody arrangements are preferred by the court. Unless a couple can reach an agreement outside of court, a judge usually finalizes custody and visitation arrangements according to the child or children’s specific needs. They usually consider the child or children’s age, their health, their emotional relationship with the parents, the parents’ individual abilities to raise them, their ties to home, school, or community at large, and any family history of violence or substance abuse among other possible factors. The court looks at the big picture to make a custody arrangement in the best interests of the child or children.
Custody is not automatically granted to a parent simply based on their gender. Nor can the court deny custody or visitation rights to either parent if they were never married or based upon their physical disability, sexual orientation, or religious beliefs. Generally, the policy of California is for both parents to have frequent and continuing contact with the child or children unless there is some danger to the child or children’s health, safety, or well-being.
How Is a Legal Separation Different From a Divorce?
Unlike a divorce, a legal separation does not end a marriage or domestic partnership. It simply means that you and your spouse or domestic partner are no longer legally ‘bound’ to one another. However, you can’t legally marry someone else or enter into another domestic partnership if you are merely legally separated. It is possible to convert to a divorce case if the legal separation is still pending, if you and your spouse/partner meet certain jurisdictional requirements.
Many couples choose legal separation for a number of reasons: not wanting to divorce for religious reasons or personal beliefs, not wanting to divorce for financial reasons, neither of the spouses or domestic partners meet California’s residency requirements, or they just don’t want to live together anymore while still receiving court-ordered payments (e.g., child support, alimony or spousal/partner support, etc.) and enjoying custody and visitation rights. Often couples choose legal separation in-order-to keep health insurance benefits for one spouse.
You may then file an ‘Amended Petition’ and request a divorce once the required length of time has passed to meet California residency requirements. On the flip side, domestic partners can file for legal separation in California as long as the domestic partnership is registered there. Neither partner has to be living in California to do this. If a domestic partnership is registered in another state, one of the partners must be a California resident in-order-to file for legal separation in California.
Can I Make Changes to Any of My Court Orders?
After a judgement is entered, if there is a significant change in circumstances, then a judge may grant a review to change to your custody order, alimony order, or child support order. An attorney or family law facilitator can help you file the proper paperwork to do this. You may need to provide pay stubs or a bank statement to prove a significant change in your financial situation. An experienced custody and alimony attorney can help you determine whether the change in circumstance is sufficient such that a court will review to change your orders. However, ultimately, it will be up to your judge.
Keep in mind, too, that you cannot retroactively request child support or alimony payments. To illustrate this, a person who lost his or her job three months ago cannot make a change to his or her child or spousal support order asking for back payments for those three months. Typically, the changes will go into effect from the change request filing date forward, so it is important to file a request soon after a significant change in circumstance.
Are There Any Differences Between Same-Sex Divorces and Heterosexual Divorces?
Same-sex or LGBTQI+ divorces are fairly similar to heterosexual divorces. Just like heterosexual divorces in California, same-sex divorces can also be no fault, and both spouses or domestic partners have the right to request alimony, child support, domestic violence orders, or divide their community property with certain exceptions on federal benefits as a part of their divorce case. The same California residency requirements also apply to same-sex couples when filing for a divorce, legal separation, or annulment.
There are a few key differences between these types of divorces, though. For one, LGBTQI+ couples may also be required to dissolve a domestic partnership in addition to a marriage, especially if they are legally bound by both.
Child custody is more complicated for same-sex couples if either parent is a non-biological parent of their child, is not on the child’s birth certificate , and/or, the same sex couple legally married in California and the child was born during the marriage. If a couple cannot agree on custody or visitation rights, the judge will then evaluate information, such as the relationship between the parents and child, the perceived caregiver roles, and other information.
Finally, asset division is handled a bit differently for same-sex couples if they’ve been together for a long time but have only been legally married for a few years. The court may take a more unconventional approach to fairly dividing the spouses’ assets and debts, like referencing registration date of a domestic partnership prior to legalized marriage.
What Happens if I Move Out of Our Family Home Before Filing for Divorce?
If you move into a new house after your separation has been finalized, then this house will likely be considered separate property. As a result, it won’t be equally split between you and your spouse or domestic partner during a divorce case. This is because all individuals keep their respective separate properties in California divorce proceedings unless they or the court decide otherwise. However, you might want to consult a top divorce lawyer if you have any misgivings about whether or not your property is considered community or separate.
My Wife and I Own a Business, But I Want a Divorce. What Should I Do?
If you and your spouse or domestic partner jointly own a business, such as a winery, it maybe considered community property in a divorce case. This community property also entails all earnings made and debts accumulated from the business.
However, let’s say in order to finance this winery or other business, you sold a house you owned before you got married and used the proceeds to help put a down payment on this winery. In this case, you may be entitled to reimbursement.. A top Santa Rosa, Napa, or Ukiah family law attorney can help you sort out which of your assets are community, which are separate, and what you may be entitled to reimbursement for..
I’m Afraid My Children Will Take the Divorce Hard. What Can I Do to Help Ease Their Fears?
Even little kids can pick up on marital dysfunction, and many times they believe they are the cause for such strife. While this is almost never the case, it’s still important to reassure your child that you love them and will continue to be there for them–even long after the divorce is finalized.
Many children, especially younger children, wrestle with the fear of abandonment throughout a divorce case. On top of all these emotional changes, suddenly one of their parents is no longer living with them, creating a deep sense of instability. Try as best as you can to maintain some consistency in your child’s life, whether it’s through a weekly activity you share, school drop-off or pick-up duties, or simply spending some other kind of quality time with them. You can also explain the reasons for the divorce or any household changes using age-appropriate language that recognizes and validates their feelings.
Teenagers may be a bit more difficult to manage. Adolescence is already a relatively tumultuous period in one’s life, and familial turmoil will do little to calm the storm. For teens, it’s important to support their burgeoning sense of self and independence. One way you can do this is to let them have a say in custody and visitation arrangements. You’ll demonstrate your love for your teen by valuing their opinions, desires, and needs in this way, and they will take notice.
Try to avoid diminishing your parental guilt by giving your children free reign to do whatever they want. It might be tempting to shower them with gifts or bless them with a no-rules household, but this isn’t what children want during a divorce case. They want to know that no matter what happens, their parents will continue to love them, be there for them, and provide them the guidance they periodically need. You may want to involve a family therapist to help you and your family through this difficult transition.
What Are Some Questions I Should Ask My Lawyer?
Many people looking for divorce and custody help ask attorneys about the estimated length of the case, strategies and plans to resolve the case,, how they think the judge will rule on the case, how to handle taxes and other finances surrounding the divorce, and an estimate of the total cost of the divorce. However, these questions are very difficult to answer at the initial consultation stage. The attorney simply won’t have enough information or time to assess the “whole picture.” They may try. If so, be forewarned, any predictions based on a small glimpse of information can be quite inaccurate. A better approach is to ensure the attorney has sufficient experience in handling matters similar to yours with successful outcomes. Make sure they understand your goals and your fears. Make sure their approach aligns with your goals and does not exacerbate your fears. Ask who else may be assisting with your case. Do they have sufficient support staff so you are not billed for attorney’s time performing administrative or para-professional tasks? Ask what happens if your attorney is on vacation or is ill when they are needed for your case. Ask about any communication policies they may have. Make sure you are comfortable with them and confident they can help you.
Do I Really Need an Attorney for My Divorce Case?
Technically no, but that doesn’t necessarily mean it’s a smart move. Only a Napa, Ukiah, or Santa Rosa divorce lawyer will be able to help you navigate the ins and outs of complicated and tedious divorce proceedings here in Napa, Mendocino, and Sonoma County.
If you are adamant about representing yourself, though, then the Napa, Mendocino, or Sonoma County Family Law Facilitator can explain and help you prepare the myriad of different forms you’ll need to file for divorce. They’ll also explain how divorce proceedings go, how the court will make decisions, and how to calculate child or spousal support payments. Just keep in mind you will be responsible for everything–including finalizing your case–if you go this route. If you do not finalize your case within five years, it may even be dismissed.
You could, of course, make your life a lot easier by hiring an experienced family law attorney to stand by your side and guide you through this process.