Frequently Asked Questions
Divorce law can be a complex topic for those unfamiliar with the field. At the law firm of Fischer & Van Thiel, LLP, we have taken it upon ourselves to ensure that you are familiar with each issue that arises in a divorce.
What is same sex divorce?
In California marriage may occur between same sex couples or heterosexual couples. Along the same lines California provides the dissolution of marriage, or divorce, to be granted to both types of couples as well. Registered domestic partnerships and co-habitant partners of the same or opposite sex may get divorced. California is a no-fault state when it comes to dissolution of marriage, and couples must only show grounds based on “irreconcilable differences.”
The courts’ main concern lies in helping separating parties reach a fair and amicable resolution regarding how parties wish to move forward with their restructured lives after the divorce is finalized. Domestic partnership dissolution is relatively simple, mainly requiring that your partnership must be registered in California. Even if a couple has never lived in California or previously lived in California but have since moved away, they must file for divorce in California if that is where their partnership is registered. If your domestic partnership was not registered in California, either you or your domestic partner must have lived in California for 6 months, and the county where you plan to file for divorce for the last 3 months.
If you are in both a domestic partnership and a same-sex marriage it is possible to end both at the same time. In order to end both simultaneously you must meet the requirements for both. It is often helpful to speak with an attorney if there are issues regarding jurisdiction, intricacies of divorce requirements or if there are property or debts involved.
What are Collaborative and Mediated divorces?
Collaborative or mediated divorce are an alternative to the standard divorce process and provides a way for parties to avoid litigation. The divorce process can be incredibly stressful, and emotionally and financially draining. Collaborative or mediated divorce can provide a more civil approach to preserve goodwill between parties, cut down on court time and costs. This type of alternative is usually not an option for argumentative parties who wish to take their divorce to court and battle it out that way.
In order to go this route as opposed to the traditional divorce process, parties must come together on three main principle things:
- Parties must want to reach an agreement and desire to keep the matter out of court
- Parties must exchange information honestly
- An agreed upon solution should be made that strives for the well-being of both spouses and children (if involved)
In a collaborative divorce both parties are individually represented. Through a series of meetings both parties and their representation meet to discuss all relevant information regarding children, property and financials. Through this series of meetings a collaborative agreement is reached. This type of process may also involve the insight or advice from outside parties. Applicable and allowable outside parties may include financial consultants, a therapist or divorce coach, or a child therapist. Each party’s consent is required and with the help of these professionals a proper agreement can be made that effectively benefits everyone involved.
Do I need to withdraw a divorce petition for immigration purposes?
In some cases a divorce or petition for dissolution may be affected by immigration. There are a variety of scenarios that could play out in this regard. Many immigrants who are facing divorce often have fear they will be deported, lose their status or custody of their children. There are a couple key points to note when it comes to issues dealing with immigration and divorce.
- If you are currently a citizen your divorce will not impact your status
- If you are a noncitizen who has been granted residency within two years of a valid marriage you could face deportation if the resident or citizen-spouse withdraws the residency petition during the divorce process
- Permanent residency is conditional for two years. If you are divorced during this time, you must reapply for permanent residency or face the risk of being deported
- A divorce could perhaps impact the statues of visa applications of the family members you may be sponsoring and striving to get into the country
- Current immigration laws provide deportation waivers in cases involving spouses
Rest assured regardless what your spouse is saying, they cannot get you deported or claim the rights to your green card, nor will child custody rights automatically be granted to them. As in most situations the court will always seek the best interest of the child and this will override most other factors when establishing custody rights. When it comes to serious matters such as divorce and immigration, it is often advised to seek the help and advice of an experienced family law attorney who is in tune with the applicable statutes.
What happens with our pets during and after the divorce? What if I don’t trust the other side to take proper care of them?
A: For some couples, pets are an integral part of the family, but they can be another source of contention during a divorce. Under the law, pets are considered property, and they are essentially treated no different from a car or furniture in a divorce. Thus, there is no such thing as joint custody when it comes to pets, unless the spouses work out an arrangement themselves.
If a pet was purchased prior to the marriage, it is considered separate property, but if the pet was obtained when the individuals were married, it becomes community property. Absent a prenuptial agreement, the court will generally divide community property evenly, so what happens to pets if there is no prenup in place?
In a litigated divorce, if the pet is considered community property and there is no prenup, the judge will determine who gets the pet by deciding who the primary caregiver is, and who has the strongest emotional bond. Your case can be strengthened with testimony from family members and therapists, and by providing receipts from vet bills and other pet-related expenses.
To best serve your pet’s needs, you should first try to amicably work out an arrangement with your spouse, or mediate the issue outside the confines of the court. Once you’ve come up with a decision, you can add this to your marital settlement agreement to finalize the issue of pet custody.
If during the divorce negotiations you feel that your pet’s safety is in danger, California law allows pets to be included in domestic violence restraining orders. A restraining order can prevent the restrained person from coming into close contact with your pet, ensuring its safety until decisions can be made regarding their ultimate custody.
All things considered, pet custody issues can quickly become complicated, and it’s in your best interest to seek the advice of an experienced family law attorney to help you through the negotiations.
What is an Uncontested Divorce?
An uncontested or a default divorce occurs when one party files for a divorce and the other does not respond, or if both parties reach an agreement. This type of divorce is usually one of the most simple and quickest ways for parties to get a divorce. A true default case means you are agreeing to essentially give up any rights or any say-so in your dissolution case. So it is important you are sure this is the route you wish to take, and you familiarize yourself with all paperwork and the process before proceeding this way. It is important to know the terms you are agreeing to because whatever your spouse or partner petitions for will most likely be what the court orders if they do not receive any response.
Another advantage to resolving any dissolution issues prior to filing is that parties will most likely never have to appear in a court room and can avoid litigation. This vastly cuts down on costs and can save both parties a lot of time, money and added stress. A possible downside to filing an uncontested divorce is that both parties must agree on the terms. This type of divorce requires parties to be flexible, understanding and open to compromise.
An uncontested divorce may not be an option for your situation if you have a large estate, a significant amount of debt, or children with your spouse. Parties must agree on issues such as child and spousal support, custody, visitation, the division of real property and debts, and how attorney’s fees will be paid. Sometimes it is difficult to reach an agreement on these issues. If you are unsure whether you are eligible for an uncontested divorce contact a family law attorney who can help assess your situation and advise you the best direction to take.
What is the Uniformed Services Former Spouses’ Protection Act?
A couple filing for a military divorce has many facets to consider. With the marriage to a member of the military come many rights, protections and benefits. In June of 1981 the U.S. Supreme Court ruled that treating military retired pay as community property was unlawful. In response Congress enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA), which decreed that state courts could allow retired military pay to be treated as property and therefore divisible between parties.
With this decree of the USFSPA, it has become very important that both parties know their rights when it comes to the separation of themselves and their property, both physically and legally. Most notably of these concerns are usually the military spouse’s continued eligibility for commissary, their eligibility for a portion of the service member’s military retirement pay, and exchange and health care benefits.
The USFSPA does not automatically protect a spouse’s right to any of the above benefits. For example, the federal law allows the state to consider the retirement pay a marital asset and therefore it can be divided in a divorce action. The USFSPA also provides something called a Survivor’s Benefit Plan, which can name a former spouse as a beneficiary and provide continued income in the event of a military member’s death. Under certain circumstances a former spouse may also receive continued commissary, health and exchange benefits after a military divorce is ordered. If you are seeking a military divorce and would like to know more about the benefits, protections or rights afforded under the Uniformed Services Former Spouses’ Protection Act, contact an experienced local Family Law attorney today.
How is Child Support Calculated?
A divorce is complicated enough on its own, but when children are thrown into the mix, the emotional and financial elements are heightened even more. If you’re going through a divorce, both parties might be wondering how much their child support payments are going to be.
In California, child support payments are determined by complex guidelines that take into account both parents’ incomes, tax deductions, and how much time each parent spends with the children. The final amount is calculated using a very complex algebraic formula.
Calculations & Guidelines
The complex child support guidelines are used to do two main things: to provide a minimum level of support for the children, and to create standardized guidelines for calculating child support in other cases.
For example, Family Code Section 4053 sets forth the statewide uniform guidelines, which include some of the following principles:
- A parent’s first and principal obligation is to support his or her minor children according to the parent’s circumstances and station in life.
- Both parents are mutually responsible for the support of their children.
- The guideline takes into account each parent’s actual income and level of responsibility for the child.
- Each parent should pay for the support of the children according to his or her ability.
- Children should share in the standard of living of both parents. Child support may therefore appropriately improve the standard of living of the custodial household to improve the lives of the children.
- Child support orders must ensure that children actually receive fair, timely, and sufficient support reflecting the state’s high standard of living and high costs of raising children compared to other states.
Essentially, the wellbeing of the children is the top priority when determining the amount of child support payments.
Deviations and Exceptions
In the event that the calculated amount should be lower or higher than stated, California law has allowed for deviations and exceptions from the guidelines. Such exceptions include prior agreed amounts (as long as it is appropriate), if the obligator’s income is very high and the support amount would exceed the needs of the children, or if the obligator has a financial hardship, then the court can lower the overall support amount.
To get an idea of how much your child support payment will be, visit California’s Department of Child Support Servicers, which provides a handy child support calculator.
What is the Service members Civil Relief Act (SCRA) in a Military Divorce?
The SCRA was enacted in order to help protect service member’s rights if and when they are called to active duty. It protects regular service branch members, in conjunction with members of the Coast Guard serving on active duty in support of the armed forces, members of the National Guard when serving in an active duty status under federal orders, and Reserve members who are called to active duty.
The SCRA affords the right for any court proceedings to be put on hold, or provided a “stay” to postpone any administrative activity if a member’s active duty has an effect on their ability to proceed in the case. This specifically applies to child custody issues as well and a stay of court and administrative proceedings would be afforded in order to protect the non-present spouse’s parental rights. The SCRA would be incredibly helpful if a spouse were to attempt to change the status of child custody while the service member is deployed.
A ninety-day stay is automatically granted when a service member requests this protection in writing. However, any further delay is decided at the discretion of the judge, hearing officer or magistrate that is assigned to the matter. This protection is not afforded nor does it protect a member’s invocation right for any criminal court proceedings.
There are also many individual state laws related to military child custody. Through the USA4 Military Families initiative, the DoD is partnering with states in order to further support military families. Specifically USA4 Military Families is striving to educate policymakers and ensure deployment separation does not determine child custody decisions.
What is a Family Care Plan for Child Custody in a Military Divorce?
As with normal civilians, military couples are presented with child custody issues if they are seeking dissolution of marriage. Members of the military are aware that active duty often requires time away from home due to deployments, training or frequent relocations. These factors may present custody issues, however there are ways to prevent or relieve some of the stresses that can evolve in a military divorce regarding child custody matters.
A Family Care Plan is highly recommended and sometimes required in order to clarify necessary details about the care of your child if a service member is called to active duty or deployed at no notice. Although most couples aren’t required to establish a family care plan, if you are or become a single parent due to death of spouse, separation/divorce, a service member can remain active but must meet the family care requirements of DOD – essentially requiring such members to have a “family care plan.”
A Family Care Plan is a set of documents describing who will care of your child during specific instances or if a military member is away on deployment or training. When it comes to a Family Care Plan there are some slight differences depending on the service, however most have three basic requirements: short-term care providers, long-term care providers, and care provision details. These support details include naming who will care for the child, financial details, medical specifications, and logistical considerations pertaining to food, housing, transportation, etc. These named care providers must be a non-military person, who agrees, in writing to accept the care of the member’s child or children. This person will also sign the Family Care Plan, indicating they consent and understand the responsibilities they are being entrusted with.
Will I Be Responsible for My Husband’s Business Tax Debt?
We have a lot of tax debt incurred during the marriage due to my ex’s business. Will I still be responsible for it after the divorce?
Nobody wants to pay for a debt that they are not responsible for. Many people own small businesses and when you get divorced you will have valid concerns about taxes and other liabilities that your former spouse may have. Tax liability can be a very tricky area of the law to navigate and it is in your best interest to have experienced legal counsel advising you. Some factors that may affect your potential tax liability for your ex’s debts include:
- Whether or not the business is classified as separate property or community property
- Are you receiving a portion of the business or business proceeds as part of the marriage settlement agreement?
- When the business was acquired by your ex. Before or during the marriage?
- If the business was started during the marriage, was the business purchased with funds that are considered community property under California law?
- Like property acquired during marriage, debts that are incurred during a marriage are presumed to be community property and are thus the responsibility of both spouses.
Community property is any property acquired by either spouse during marriage and any property bought with those earnings will be considered community property that is owned equally by both spouses. Similarly, debts incurred during marriage are generally debts of both spouses. If the business was a community property asset when the tax debt was incurred, then you are likely on the hook for at least a portion of the debt.
If the business was acquired by your ex prior to the marriage then the business and the debt may be considered separate property. Married people can own separate property that only belongs to them individually. If, for example, you or your ex inherited the business during your marriage then it would likely be considered separate property and the tax burden would only belong to the spouse who inherited the property.
Property classification issues can be quite complicated especially when there are overlapping state or federal tax considerations. It is in your best interest to contact an experienced family law attorney who can assist you with. The attorneys at Fisher & Van Thiel have years of experience handling complex divorce cases where property and debts have to be distributed. Call our office today for a consultation!
My husband cheated. Will I get extra spousal support?
In many California marriages there are unfortunately issues of discovered adultery by one party. If you are involved in a situation regarding a cheating spouse, you should educate yourself on your options in this incredibly difficult time in order to protect your rights.
California abides by statues of no-fault divorce and allows a divorce to occur if a couple meets one of two standards: a spouse suffers from incurable insanity, or a couple is experiencing irreconcilable differences – which is a fundamental disagreement that can’t be resolved. In opposition of fault-based states, California only requires that you, your spouse, or both of you believe your marriage cannot be saved. Seeing has California has not made the act of adultery criminal, adultery will not be considered or admissible as a deciding factor for whether or not a divorce will be granted.
California has also established rights to Alimony, or Spousal Support laws which if applicable require parties to financially take care of each other during and after divorce proceedings. This is to ensure the less financially fortunate party is taken care of during the divorce process and can maintain an established standard of living after finalization.
Although the courts consider a variety of factors when establishing whether spousal support will be granted or not, adultery (and any form of marital misconduct) is not one of the weighing factors. Spousal support is meant to act as an issuing of support not a form of punishment against a party. The only exception to this rule occurs if there is evidence of violent behavior by one of the parties.
If you have any questions regarding your divorce matter, or wish to clarify any factors regarding your case matter, contact a family law attorney’s at Fischer & Van Thiel LLP. We specializes in the intricacies of the laws and can help you maintain your rights.
In a California divorce, what is the date of separation and why is it important?
The date of separation has significant legal consequences in divorce cases because California courts use this date to determine the respective spouses’ property interests.
California is a community property state, which generally means that the property that the couple acquires during the marriage is considered “community property” and debt acquired during the marriage is “community debt,” belonging equally to both parties. On the other hand, anything acquired after the date of separation (including all earnings and contributions to retirement or pension accounts) is the separate property of the earning spouse. Likewise, debts incurred after the date of separation are the separate debt of the spouse that acquires them.
Spousal support issues, such as amount, duration, and terminability, are also affected by the date of separation. The date on which the spouses separated establishes the parties’ duration of marriage, which is a key factor in determining long-term spousal support. (There are certain spousal support rules in California for marriages that last ten years or more.)
The date of separation occurs when:
- there is a physical separation of the spouses (such as one spouse moves out of the family home), and
- either party subjectively intends to terminate the marriage and his or her actions demonstrate this intent. (For example, one spouse sends a text message to the other spouse that he or she is filing for divorce).
Determining whether or not accumulated assets and debts are part of the marital estate can be particularly difficult to assess and, in many cases, divorcing parties claim different dates of separation. If you are thinking about getting a divorce, you should be sure to seek legal consultation if you have any questions about how the date of separation is established or how to proceed in your particular situation.
What is an Contested vs. Uncontested Divorce?
A divorce in California is also sometimes called a Dissolution of Marriage, and can be filed either as contested or uncontested. A contested divorce simply means both parties are not in agreement and are contesting some of the major issues of the dissolution. These issues usually involve property or debt division, child support or custody, or the divorce request in general. Intricate or complex legal issues and highly involved financial stakes usually lead to couples inability to reach an agreement in order to file for an uncontested divorce.
An uncontested, or agreed upon divorce can often be settled between parties cordially, however this is not always the case and parties must file for a contested divorce. In California, a divorce can still be finalized despite whether one party agrees to it or not. In these instances parties should be individually represented in a contested divorce. In cases of contested divorces parties will most likely go to mediation or trial. It is important for both parties to be individually and properly represented to ensure both of the party’s rights are adequately taken into account and spoken for. A California Family Law Attorney who is experienced with the sometimes complicated proceedings and knowledgeable on the intricacies of the family law statutes can help you achieve the best possible outcome for you.
When can desertion be claimed in a marriage?
Desertion or abandonment is a term used when a spouse believes their spouse has left or essentially deserted the marriage. Desertion may be claimed if a spouse abruptly leaves the marriage without explanation, reasoning or notification. Due to the fact that California is a no-fault state, where a couple can divorce without proving any fault of either party, a claim of desertion may not make a difference.
The desertion or abandonment by a spouse can be incredibly emotionally, financially and legally stressful for the party who has been abandoned. Although a claim of desertion is unlikely to merit grounds to file for an annulment, it will usually suffice for grounds to file for divorce, especially in a no-fault state such as California. Some states require a spouse to have abandoned his or her spouse for a minimum period of time. A period of a couple days usually will not suffice, however a couple of months is normally a sufficient amount of time. Complete absence for over a year is considered abandonment of the marriage and the home. If you or someone you know feels they have grounds to claim desertion, you may want to speak with an attorney regarding your rights and the details surrounding your family law matter.
How is legal custody different from physical custody?
If you are a party to a recent or currently pending divorce and have children, you are probably familiar with the terms legal custody and physical custody. However, many people don’t know the vast difference between the two. Legal custody is the right of a parent to make major decisions regarding the welfare, health and education of a child. This includes issues regarding where the child will attend school, what kind of religion they will engage in, or whether a child will receive medical care or not (except emergency needs). In California, if parents have joint legal custody of their child decisions regarding welfare, healthcare, education, and religion should be decisions made collaboratively. Joint custody is very common in California and most parents share joint legal custody unless one parent is deemed unfit, parents are unable to make decisions together, or it would be in the best interest of the child for one parent to have sole custody.
Physical Custody refers to where does the child reside and who is responsible for the direct care of the child. The proper, but often misleading terminology is that the parent having more than 50% of the time with the children is the primary custodian and the other parent has visitation. This does not mean that the primary custodian has sole custody. If the other parent has even a small amount of time with their children they are considered to have joint custody. It is very rare for a parent to have sole legal custody as it is only granted in the most severe cases of a parent being of danger to the children.
Divorce can be a very emotional time, for both parents and children, and issues of custody can be especially daunting and should be handled carefully and often with representation. Although parents are encouraged to collectively make the best decision for the child, sometimes court and legal intervention to determine the child’s “best interests” are necessary and beneficial if parties cannot agree.
What is simplified divorce?
A simplified or summary dissolution in California is a type of divorce that is usually the quickest and easiest if the details of your situation can meet the standard requirements. Simplified divorces are limited to those without children, relatively little to no assets or debt, and a length of marriage or partnership that did exceed 5 years.
This type of legal dissolution is available to married couples and those who began their marriage as a domestic partnership and were later married. To qualify for simplified or summary dissolution in California you must meet all of the following requirements:
- One party must have lived in the state of California for at least 6 months and in the county where the divorce petition is filed for at least 3 months.
- Both of you agree to end the marriage based on irreconcilable differences.
- You have no and are not expecting any minor children together.
- Neither of you own real property*
- Neither of you has acquired significant debt since the start of your marriage*
- You both agree to waive the right to spousal support.
- You both waive your right to appeal.
- You must both read and understand the Summary Dissolution Information booklet.
*You may wish to speak to a family law attorney who is familiar with statues and can help you better understand these terms and requirements
If both parties cannot meet the standards required for a summary dissolution a couple can still file for a regular dissolution or divorce. A California Family Law attorney may be helpful in assessing your matter and decide which route may be best for you, and the best way to begin the filing process.
If I move out of state, who pays the travel expenses for visitation?
California’s family courts work to ensure that children have “frequent and continuing contact with both parents” after a divorce or separation. Often the issue of travel expenses comes up, especially when one parent has moved away from the area or out of state. In such cases, the court may assign the cost of travel for child visitation to either or both parents depending on what is in the best interest of the child. Under California law, the non-custodial parent usually pays for the child to travel to and from another state for court-ordered visitation with the non-custodial parent.
If the custodial parent is the one to have made the move out of state, the court has the discretion in some cases to order the custodial move-away parent to bear the visitation travel costs. However, a court may adjust the amount of guideline child support to take into account the travel expenses that one parent incurs for visitation. In other words, the travel expenses for visitation may be worked into the child support payment.
In some cases, the court may also order the establishment of what is known as a “travel trust fund” where a specified amount for visitation travel expense would be set aside. The frequency and length of times for the visits may be ordered by the court often taking into account the best interest of the child.
It is possible for either party to file a petition in order to share visitation travel expenses. A custodial parent may also wish to establish a travel trust fund with the noncustodial spouse. It is ideal in these cases to work with an experienced and knowledgeable family law attorney who will ensure that your rights and the best interests of the child are protected.
My ex is planning to move across the country after the divorce. How will visitation work then?
Because you and your soon-to-be ex-spouse know that the move will happen soon after the divorce is finalized, a visitation schedule for this scenario should be included in the divorce agreement. Doing so now will save you from having to return to court later to modify the custody and visitation portion of the agreement.
As with any visitation agreement, you and your spouse can agree to any schedule that is in the child’s best interest. If your children are not yet school-aged, you and your spouse can work out any type of visitation schedule you wish.
The biggest obstacle to a visitation agreement is how to make sure both parents are able to spend time with the child, while working around his school schedule. In most cases where parents live far enough apart that weekend or every other weekend visits are impossible, the non-custodial parent (the parent who does not have the child full time) generally has summer visitation, spring break and at least one major holiday, Thanksgiving or Christmas. However, you and your spouse may instead choose to switch off on some holidays, you may keep the holiday visitation schedule the same from year to year, or you may each take one major holiday. What you choose is entirely dependent on what works best for your family’s specific circumstances.
Keep in mind that if air travel will be necessary to accommodate visitation, you must decide who will pay for the child’s airline ticket. Some parents will agree to share the cost of the child’s airline ticket, while others agree that the non-custodial parent will pay the full cost. Depending on the child’s age, you will also have to decide whether the child will fly as an unaccompanied minor or if a parent will accompany him on each leg of the trip.
The most important thing to remember when dealing with cross-country visitation is to let your child know that, despite the distance, he will continue to have a strong, loving relationship with both parents.
My ex-husband and I cannot agree on a schedule for when he can visit our two boys or when they can stay overnight with him. He is stopping by every day. Can I prohibit him from seeing our kids until we agree on a schedule?
It is not advisable to prohibit your ex from seeing your boys. Visitation between the noncustodial parent (your ex) and the child is presumed beneficial. Therefore, a judge will not look favorably upon you interfering with your ex-husband’s relationship with your children. If there is a proven history of child neglect or abuse by him toward your boys, then your interference may be deemed justified and not harm your position when you seek and obtain a visitation order from the court. Usually, “self-help” methods are not condoned by the judge.
Typically, the court enters a visitation order when it issues the custody order. Because that has yet to happen in your case, you need to seek a court order establishing visitation. The visitation order will prevent conflicts and problems between you and your ex, while also providing much needed stability for your boys. Your boys are the victims of your inability to reach an agreement.
How can you determine the best schedule? You and your ex need to figure out what is in the best interests of your boys. Hopefully, you can together create a plan identifying a weekend and overnight schedule including pick up and drop off details, while also addressing special occasions or unique situations, such as birthdays, holidays, and school vacations. If you are unable to reach agreement, then you will most likely need to seek mediation, before the judge will make a final decision and sign the visitation order. A mediator can assist you in reaching agreement in a cooperative and positive manner taking everyone’s schedules and needs into consideration.