FAQ

Divorce

How long does it take to get divorced?

This is one of the most common questions clients have. Unfortunately, there isn’t a specific amount of time that it takes to get a divorce. Rather, there is a minimum waiting period before a person can have their marital status change from married to single. The waiting period begins to run the day after one spouse serves the other spouse with a Petition and Summons seeking dissolution. How long it will take to resolve all the issues in a dissolution depends upon the complexity of the issues, the parties’ willingness to compromise, and the courts and the attorneys’ availability to tend to the needs of the parties involved. In our experience, the average time frame for dissolving a marriage is between 6 months and 3 years.  Mediation and negotiated divorces tend to fall on the lower end of this continuum and divorces that go to trial fall on the higher end.

I have been served with a Petition and Summons. How long do I have to respond?

If you were personally served, meaning the paperwork was given to you or left in your presence, then you have 30 days to file a response. If you do not file a response by the deadline, then the filing party may request that the Court enter your default, which means decisions could be made in your matter without your knowledge or participation.

How much does it cost to get divorced?

At Jarratt Law, P.C., the cost of your divorce depends on several factors: 1) how many issues you and the other party have to resolve; 2) the level of expertise required to bring your matter to a resolution; 3) the level of conflict between you and the other party, and 4) the processes in place in the court to which your case is assigned.

I think my spouse is hiding money. What can I do?

Nothing stings quite like discovering that your partner is hiding money from you. It is both illegal and unethical for a spouse to deceive you. If you are concerned that your spouse is hiding assets or diverting funds, you need to take action to stop him or her. First, we suggest that you begin to track the marital income and expenses. Gather copies of all bank accounts, retirement and investment accounts, and any other accounts. Examine them to determine how much money is coming in and how much money goes out. Reviewing these documents may uncover a record of spending you were not aware of. Second, consider if there are statements that no longer come in the mail, i.e., has the quarterly statement for one of the investment accounts stopped coming to the house? Oftentimes, a spouse will redirect mail to their office to prevent the other spouse from noticing. Third, consider the balances in your accounts and pay close attention if the balances are dwindling down. 

I think my spouse is cheating. Does that mean I can get more money from him/her?

California is a no-fault state which means that in a divorce proceeding, the court will not assign blame for whatever caused the marriage to end nor will it penalize either party for cheating. While it may have caused the breakdown of the marriage, a cheating spouse will not have to pay more or receive less because of having an affair. 

What is the difference between community property and separate property?

Community property is any money that is earned by either spouse during marriage. Once the marriage ends and the parties separate, the community ends as well. Both spouses have equal 50% interests in all of their community property. In divorce, the community property assets are identified and divided between the parties.

Separate property is money that is not subject to division. It is yours and yours alone. Separate property is property that you earned before the date of marriage or after the date of separation. Property that you receive as a gift, for instance through an inheritance, and earnings on other items of separate property (such as interest or rents) are also the receiving spouse’s separate property. Disputes over the characterization of property as separate or community frequently arise in a divorce. 

How will our retirement funds be divided?

Like many other types of marital assets, retirement funds are community property if the funds were earned during the marriage. To divide retirement funds in a dissolution, you need to determine what the community’s portion is and then divide that equally. For example, if you started working at your job in 1990, started contributing to your retirement in 1995, and then got married in the year 2000, your retirement account would be comprised of both separate and community property. You would retain the separate property interest that accrued between 1990 and 2000 and your spouse would have a 50% interest in the retirement funds that accrued between 2000 and the date of separation. 

Child Custody

How does the court determine custody rights?

The court’s primary goal is to establish custody orders that are in the best interest of the child. With this goal in mind, the court considers the status quo and tries to avoid disrupting a child’s day-to-day life. The court also considers the child’s need to spend time with both parents. Other important factors include the location of both parents, the age of the child(ren), the child’s attachment to each parent, the conflict between the parents, and whether there is a history of alcohol, drug, or physical abuse.

What does joint custody mean?

There are two types of child custody – legal and physical. Legal custody concerns the right to make decisions relating to the health, education, and welfare of a child. In California, it is common for parents to share joint legal custody, meaning that both parents have equal right to make these types of decisions. Under some circumstances, one parent may be unfit to make decisions for the child. If so, then the court will award the other parent sole legal custody, meaning that they have exclusive right to make decisions on behalf of their child. 

Physical custody concerns where a child will reside after separation or divorce. In California, joint physical custody is preferred unless there are issues that would make joint physical custody detrimental to the child. Common issues justifying sole physical custody to one parent include but are not limited to domestic violence, child abuse, drug or alcohol abuse, sexual offenses, and mental instability. 

Can I get sole custody of my kids?

It depends on the facts of your case. Joint custody is the preferred custodial order so in order to get sole custody there need to be facts that demonstrate that it is not in the children’s best interest to be in the physical and legal custody of both parents. Examples of circumstances where sole custody will be ordered: when the other parent has committed acts of violence against the parent seeking sole custody or the children, when the other parent has serious untreated mental health issues, the other parent is a registered sex offender, and/or the other parent suffers from untreated drug and/or alcohol addiction(s).

I am concerned that the other parent is abusing drugs/alcohol. Will that affect custody?

If you have concerns that the other parent has a substance abuse problem which poses a risk of harm to your child, then you need to take action. Unfortunately, issues of drug and alcohol abuse are all too common, and the children suffer as a result. As a parent, there are many ways to protect your child from these kinds of situations. One potential solution is to arrange supervised visitation, so the children are not left alone with the offending parent. Another potential option is to petition the court to require the parent to participate in counseling or undergo random alcohol or drug testing. 

I want to move out of state. Do I need permission from the other parent?

The answer depends on whether you intend to move your child out of state. If yes, then you need to first review your custody orders to see if this issue was specifically dealt with by the court. If not, then the next question is do you have sole physical or joint physical custody. If you have sole physical custody, then the law presumes that it is in the child’s best interest to move with you. In this situation the issue that often arises is whether the other parent’s visitation schedule will be affected by the move. If not, then you have the right to move the child without seeking a court order. If the other parent disagrees with the move, then he or she will need to bring a motion for a change in custody. If you have joint custody, then you will need a court order or the consent of the other parent to move the child out of the state.

Move away cases are complicated and time consuming. Don’t wait until you have signed a lease or accepted a job to deal with the custody issue. If you are even considering moving to another state, you should speak with an attorney.

I am concerned about the safety of a minor child. Is there anything I can do?

If you have a reasonable suspicion that a minor child’s safety has been or will be compromised, you should contact law enforcement to make a report. Child Protective Services is another resource used to protect children who are at risk of harm. 

Child Support

How is child support calculated?

Child support is calculated based on a variety of factors including, but not limited to, the financial situation of each parent and the amount of time each parent has the children in their custody. The courts will often rely on the Dissomaster (a program used to calculate the amount of support) in order to determine the appropriate amount of guideline child support. 

The other parent is not paying child support. What do I do?

If you have an order for child support and the other parent fails to pay you the required amount, you have options. You can ask the court to issue a wage assignment order which would allow you to garnish the other parent’s wages. You can apply for a levy to withdraw funds from the other parent’s bank account(s). You can place a lien on the other parents home. You can file a contempt action to hold the other parent accountable for willfully failing to comply with the child support order. Or you can ask the Department of Child Support services (DCSS) to help you collect your child support. The department can have the delinquent parent’s driver’s or other state issued license suspended.

I lost my job and cannot afford to pay child support. What should I do?

Losing your job when you have children to support can cause a tremendous amount of stress and worry. It is important to point out that your obligation to pay support continues even if you cannot afford to pay it. This means that if you fail to notify the court that you cannot pay support, you will accrue arrearages of back child support if you fail to make payments. Back support accrues interest and in some cases penalties. These amounts add up quickly. Child Support is a preferred debt, meaning that you cannot discharge it in bankruptcy. And the court has no authority to change the amount of your support unless you take action and seek a modification of your child support. 

My ex has remarried. Does the new spouse’s income count towards child support?

The new spouse’s income is not included in the calculation of funds available for the support of your child. Rather it is used to determine the parent’s available net income for child support. Part of the guideline calculation is determining how much money a parent has left to pay for child support after paying his or her taxes. A new spouse with income can cause your ex to pay more to the IRS and FTB, which means they have less to help support your mutual child.

Can a child support order be modified?

Yes, if there has been a change of circumstances. Child support orders are modifiable if there has been a change in circumstances since the order was issued by the court. Job loss, wage increase, change in custody arrangement, and birth of a biological child are all examples of changed circumstances, which may justify the modification of a child support order. 

Spousal Support

How is spousal support calculated?

Temporary spousal support is calculated using the same Dissomaster program that is used to calculate guideline child support. A temporary spousal support order may be issued pending a final judgment in a dissolution case. 

Permanent spousal support is a complicated issue requiring a detailed analysis of the factors set forth in California Family Code section 4320. These factors include: (a) the extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage; (b) the extent to which one party contributed to the career advancement of the other; (c) the ability of the supporting party to pay spousal support; (d) the needs of each party based on the standard of living established during the marriage; (e) the obligations and assets of each party including their separate property; (f) the duration of the marriage; (g) the ability of the supported party to engage in gainful employment without unduly interfering with the needs of the minor children; (h) the age and health of the parties; (i) domestic violence; (j) the immediate and specific tax consequences to each party; (k) the balance of the hardships of the parties; (l) the goal of self-support; (m) criminal convictions of an abusive spouse; and (n) any other factors that the court considers just and equitable. 

How long will I/my spouse have to pay spousal support?

The length of time a party can be ordered to pay their spouse support depends, in part, on how long they were married. In California, if a couple is married for more than ten years, their marriage is deemed to be of long duration, which means that support can be awarded until the supported party remarries, either party dies, or an order modifying the support is made. or until the party receiving support remarries, dies. Some orders for long-term spousal support have no specific end-date while others set a limit on the length of time a spouse can collect spousal support. In some cases, the court will create a step-down system of support where the amount paid to a spouse automatically decreases over time

If a marriage dissolves in less than ten years, it is considered to be a marriage of short duration. In these cases, the court typically awards spousal support for a term of one-half of the length of the marriage. That is, if you and your spouse were married for 8 years, the court may award support to your spouse for up to 4 years. This example is only meant to provide a benchmark and is not intended as a clear rule. The judge has broad discretion to fashion an order for spousal support, which makes it difficult to predict the outcome of a spousal support case.

My ex has remarried. Can I stop paying spousal support?

Yes, unless your court orders state that spousal support will continue beyond the remarriage of the supported party. It is rare for the parties to agree to paying spousal support after remarriage and a court of law will not make such an order.

I cannot afford to pay spousal support. What do I do?

Unless you have an order that states otherwise, spousal support orders can be modified. In order to qualify for a modification, the requesting party must demonstrate a change in their circumstances. For instance, if at the time a judge ordered you to pay your spouse support you were gainfully employed, and since that time you have lost your job, then you could file a motion with the court requesting that they reduce or eliminate the order for support. This requires you to be proactive and to take prompt action. An order for spousal support will not be put on hold while you are out of a job or underemployed. The amount you are required to pay will continue to accrue unless you file a motion and receive an order changing the amount of support due. 

Can I garnish my ex-spouse’s wages to pay spousal support?

Yes. You will need the court to sign an income withholding order. The type of order, commonly called an IWO, requires the employer to garnish wages in the amount ordered for support. 

My ex-spouse moved to another state and stopped paying spousal support. What do I do?

Your ex-spouse is not absolved of his or her responsibility for paying spousal support simply because he or she moved to another state. Your order for support can be enforced out of state if you register it with the local court where your ex-spouse now resides. Once the order is registered, you can enforce it under the collection laws of your ex-spouse’s state of residence.

He denies that he is the father of ourchild. How do I get him to pay support?

If you have a child with someone who denies he is the father, then you need to take legal action to protect your rights and make sure that you receive the support to which your child is entitled. In order to collect child support from your child’s father, you will need to file paperwork with the court to establish the father’s parental relationship with your child. The court can order a DNA test to establish paternity. 

Why is DCSS involved in my case?

Department of Child Support Services (“DCSS”) is an agency that can act as a party in court to create or modify child support orders and collect child support payments. The DCSS gets involved in child support cases upon the request of one of the parents or because the parent with majority custody is receiving welfare benefits.