Frequently Asked Questions Related To Divorce, Family Law, & Custody Issues

 

We receive numerous questions regarding law in general and our practice’s specific services. Below you’ll find a few of our most frequently asked questions and their answers. If you can’t find the answer to your question, please feel free to call us for a free personal consultation.

 

What is an annulment?

An annulment in the legal sense is not the same thing as annulment in the religious sense. A legal annulment means that the marriage was invalid from its inception. There are very limited grounds upon which an annulment can be granted. The most common ground is bigamy. Property division may or may not be different than it would be in divorce, depending upon your circumstances and whether or not you knew of the grounds for annulment when you entered (or remained in) the marriage. (Annulment is also sometimes called a "judgment of nullity".)

 

What are the grounds for divorce in the state of California?

California was the first state to implement the "no-fault dissolution" concept after abandoning the fault-based divorce process (mental cruelty, infidelity etc.). In California, a dissolution of marriage can be granted if the court finds there to be "irreconcilable differences" that have caused an irrevocable breakdown of the marriage. This means that if a married person wishes to terminate the marriage, he or she can do so, even if the other spouse disagrees.

 

Are there any residency requirements for filing a divorce?

Prior to filing a petition for a dissolution, one of the spouses has to have been a resident of the state for a continuous period of six months and of the county for a continuous period of three months.

 

How is child support determined?

In 1984 the California Legislature enacted the Agnos Minimum Child Support Standards Act. This law established minimum levels of child support and required the courts to establish guidelines for awards of child support above the statutory minimums. This is known as the Child Support Guideline. To calculate the amount of child support to be paid by a parent, the law directs the judge to compare the total net monthly incomes of both parents, the percentage of custodial time each parent has with the child, and other factors. The guideline is based on a complicated mathematical formula. In fact, computer programs must be used to calculate child support under the guideline.

 

How long is child support paid?

Child support must be paid until the child becomes 18, unless the child has not graduated from high school. In this case the child support continues until the child has graduated high school or turns 19, whichever occurs first. Presently, the law does not give judges the power to make a parent support a child beyond the age of 19, unless the child is physically or mentally disabled.

 

How do courts award the family residence?

Generally, the family residence is divided with the other community property. Sometimes, one of the parties owns a separate property interest in the home that is reimbursed. Occasionally, where minor children are involved, the custodial parent is allowed to live in the residence with the children for a specified period of time after the divorce is finalized. During that period of time, the spouse who lives in the home is usually required to make all mortgage, property tax and homeowner insurance payments when due. In addition, the other parent may be entitled to a child support credit.

 

How long does it take to get a divorce?

The time required to obtain a divorce varies. Generally, a divorce takes anywhere from six months to a couple of years. The status of the marriage cannot be terminated until six months passes after the service of the summons and petition for dissolution of marriage. The property division, support orders, custody orders, and other matters may occur as soon as such issues are resolved.

 

Must I get divorced in court?

Yes, it is still necessary for a person who wants a divorce, to issue a summons against the other person and then to appear in court to give evidence. If the case is not defended, the process is usually fairly quick and uncomplicated, particularly if there are no children and the property issues are simple.

 

What is a legal separation?

Legal separation is a legal status conferred by a court, where the parties remain married, but the court determines the rights and liabilities of the parties with respect to child custody, support, visitation, spousal support, property and debts. This concept is often confused with the effect of the separation of the parties on the "date of separation," the date the parties commence living separate and apart with the intent to no longer live together as man and wife.

 

Who gets custody of the children and why?

What custody arrangement is in “the best interest of the child” is the main question when a judge decides the type of custody and who should receive it. Usually, the parents decide custody without help from a court (just like property division.) A judge decides custody issues that are not resolved by the parents. The two main custody types are sole and joint. Sole legal and physical custody means one parent cares for and makes the major decisions for the child, while the other parent normally receives visitation rights. Joint legal and physical custody means the parents make major decisions for the child together, and each parent has a significant share of time that the child resides with them.

 

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