Frequently Asked Questions

FAQs

 

Family Law FAQ

What are the legal grounds for obtaining a divorce?
How long does a divorce take?
When does the six month waiting period begin?
Who determines how assets are divided in a divorce?
Will I have to pay my spouse's attorney fees?
How do courts determine who gets custody of children in a divorce?
What is joint custody?
How is child support determined in a divorce or paternity case?
Is child support tax deductible?
What happens if a parent does not pay court-ordered child support?
How is spousal support determined in a divorce case?
How long will I receive, or pay, support?
If I remarry, will I still receive spousal support?
How do I modify the current order for spousal support?
Do grandparents have visitation rights to their grandchildren?
What is a Premarital Agreement?
Should I enter into A Premarital Agreement?
What if I do not have a will?
What if I do have a will or trust?
What if I have a Health Care Directive?
What if I have given my spouse Power of Attorney?
Where can I get more information?

 

 


What are the legal grounds for obtaining a divorce?

California is a "no-fault" state. A no-fault divorce is one in which neither the husband nor the wife officially blames the other for the breakdown of the marriage. The most common basis for no-fault divorce is "irreconcilable differences." [Return to top]


How long does a divorce take?

A divorce in California takes a minimum of six months. While it can take longer, it may never be shorter. This is called a waiting period. [Return to top]


When does the six month waiting period begin?

The six month time period begins to run after the spouse not requesting the divorce has been served. [Return to top]


Who determines how assets are divided in a divorce?

Generally, spouses are free to divide their property as they see fit in what is called a "marital settlement agreement," which is a contract between the husband and the wife that divides property and debts and resolves other issues of the divorce. If the parties cannot agree, the court must make the determination using rules of community property law.

In general, community property is divided equally and separate property is kept by the spouse who owns it. Community property includes all assets, as well as debts, which are acquired during marriage. Separate property includes all assets and debts owned before marriage, gifts received by only one spouse during marriage, or inheritances received during marriage. [Return to top]


Will I have to pay my spouse's attorney fees?

In the event you make significantly more than your spouse, or he/she does not have a job, you may have to pay a contributive share of his/her attorney fees, which will be based on his/her need and your ability to pay. [Return to top]


How do courts determine who gets custody of children in a divorce?

If the parents cannot agree on custody of their child, the courts decide custody based on "the best interests of the child." California law calls for frequent and continuing contact with both parents for the children unless there are safety issues. There is no presumption favoring mothers or fathers. [Return to top]


What is joint custody?

Joint custody has two parts: joint legal custody and joint physical custody.

Joint legal custody refers to both parents sharing the major decisions affecting the child, which may include schooling, health care and welfare issues.

Joint physical custody refers to the time spent with each parent. The amount of time is flexible, and can range from a moderate period of time for one parent, such as every other weekend, to a child dividing the time equally between the two parents' homes. See Santa Clara County Local Rules: Time Sharing Arrangements. [Return to top]


How is child support determined in a divorce or paternity case?

California law provides that both parents have a general obligation to support their minor children, both natural and adopted, whether or not the parents were married. Child support can be requested by one party from the other through an action for dissolution, legal separation, nullity, paternity or a domestic violence action. In general terms, a guideline formula is used that is based on each parties' income (or earning capacity) and the amount of time each parent spends with the child or children.

Child support is always modifiable and may be changed when either party's financial circumstances change or there is a change in the custody or visitation schedule. A consultation with an attorney utilizing a computer program will give you an idea of the possible increase or decrease in the amount of support you are paying or receiving. [Return to top]


Is child support tax deductible?

No. Child support cannot be deducted as an expense by the payor for tax purposes. [Return to top]


What happens if a parent does not pay court-ordered child support?

Various enforcement mechanisms exist against parents who do not pay court-ordered child support, including automatic withholding of the obligor's income by way of "wage assignment." The court also has the power to hold a party in contempt for violating a court order; if found in contempt, the parent faces possible jail time, fines, or both. Recently, Congress has enacted other enforcement mechanisms, creating greater collaboration between federal and state governments. These include suspension of driver's licenses and professional licenses, seizure of tax refunds, seizure of bank accounts and investment accounts, and even publishing the name and picture of the non-paying parent on posters and in newspapers. [Return to top]


How is spousal support determined in a divorce case?

There is no statewide formula, but counties do have guideline formulae that apply when the question is temporary support. For "permanent" support, the court must weigh a series of factors, including the age and health of the parties, the length of the marriage, the marital standard of living, and so on. Spousal support is generally modifiable and may be changed when either party's financial circumstances change. [Return to top]


How long will I receive, or pay, support?

It depends.

Child support: the obligation to pay child support ends when the child is eighteen, or, if the child is a high school student and living at home, when the child is nineteen or has finished the twelfth grade, whichever happens first. Other events that can end the support obligation early include the marriage or death of the child, or the child's emancipation.

Spousal support: there is no statute setting the length of time for spousal support. A common measure is half the length of the marriage for a marriage of less than 10 years. After 10 years, the duration of support is discretionary. [Return to top]


If I remarry, will I still receive spousal support?

The obligation to pay spousal support terminates upon the remarriage of the supported party unless the parties have agreed in writing to continue support. [Return to top]


How do I modify the current order for spousal support?

The appropriate papers have to be filed with the court asking that the judge modify the existing order based on a change of circumstances. This involves filing and serving on the other parent a new income and expense declaration along with a "notice of motion" or "order to show cause." The other parent then has a certain amount of time to file a response. The court will give you a date and time for the hearing, at which point the judge will make a ruling. The modification is normally retroactive to the date the motion was filed, so if you believe that you are entitled to more spousal support (or should be paying less) it is best to file as soon as possible. [Return to top]


Do grandparents have visitation rights to their grandchildren?

If a grandparent is being denied visitation, he or she or both must file an application with the Superior court in the County in which the child resides. The grandparent(s) must show to the court that visitation with them is in the best interests of the child. The court will take into consideration several factors, including the relationship between the child and the applicant, the relationship between each of the child's parents or person with whom the child is residing and the applicant, the time which has elapsed since the child last had contact with the applicant, the effect that such visitation will have on the relationship between the child the child's parents or the person with whom the child is residing, if the parents are divorced or separated, the time sharing arrangement that exists between the parents with regard to the child, the good faith of the applicant in filing the application, any history of physical, emotional or sexual abuse or neglect by the applicant and any other factor relevant to the best interests of the child. [Return to top]


What is a Premarital Agreement?

Premarital agreements, more commonly known as prenuptial agreements, are agreements that are entered into prior to marriage and dictate the distribution of property in the event of a dissolution. [Return to top]


Should I Enter Into A Premarital Agreement?

You should not enter into a premarital agreement until:
  • You have had an opportunity to read its contents;
  • You have consulted with an attorney who practices family law to find out whether the premarital agreement is right for you. This should not be the same attorney who drafted the document; and
  • You have had time to think about it.
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What if I do not have a will?

Under the laws of intestacy, when you die, your spouse will be the primary beneficiary of your estate. The law considers you to be legally married until the judge signs the final dissolution decree ending the marriage. Therefore, in the event you were to die or become disabled prior to the legal termination of your marriage, your estranged spouse may have legal control over you and your estate, and may be entitled to most, if not all, of your estate. However, through properly drafted estate planning documents, you can provide that someone other than your spouse will have control over you (in the event of your incapacity) or your estate (in the event of your death), and you can limit your estranged spouse's rights as a beneficiary of your estate. [Return to top]


What if I do have a will or trust?

If you have a will or similar estate planning document, such as a living trust, your spouse will typically be designated as the executor and/or trustee, and probably is named as the primary or sole beneficiary of your estate. Clearly, you should immediately review your will or living trust with an estate planning attorney to determine if you wish to make any changes. Keep in mind that most states have an "elective share statute" which provides that your spouse (whether estranged or not) will automatically be entitled to a certain percentage of your estate. However, through proper planning, there are a number of ways to avoid or limit the assets which are subject to the elective share, and to provide that your estranged spouse does not receive more of your estate than you want him or her to. You should seek the advice of a qualified estate planning attorney to modify your will, trust and other estate planning documents. [Return to top]


What if I have a Health Care Directive?

Many people have signed a Health Care Directive which designates their spouse as the person to make their health related decisions, including the decision to "pull the plug," in the event of a terminal illness. If you are in the throes of a bitter divorce, do you really want you estranged spouse deciding whether you live or die? If you no longer wish your spouse to have control over those decisions, you should immediately execute a new Health Care Directive (Power of Attorney). You should consult with a qualified estate planning attorney to make sure your designation of health care surrogate and living will comply with your state s laws. [Return to top]


What if I have given my spouse Power of Attorney?

Many people give their spouse a Durable Power of Attorney to handle their financial affairs. In the divorce context, Durable Powers of Attorney are loaded guns. There have been numerous instances where estranged spouses have used such Durable Powers of Attorney to transfer their spouse's assets to them, take out loans in the name of their spouse, etc. If you have given your spouse a Durable Power of Attorney, you should consider revoking it immediately so that it cannot be used in an unintended fashion. Check with a qualified estate planning attorney to make sure you the rules for revoking a power of attorney. Generally, banks and other third parties can rely upon a power of attorney unless they have notice that it has been revoked. If you are concerned that your spouse may attempt to use the power of attorney without your permission, you should consider notifying all your financial institutions that the power of attorney has been revoked. It is often a good idea to record the revocation in the public records. [Return to top]


Where can I get more information?

All California Superior Courts' Websites
Santa Clara County Superior Court Family Law Self Service Center Webpage
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