Divorce 123
Frequently Asked Questions
How do I start a divorce action?
Where do I file?
What do I file?
What are automatic restraining orders?
How long does it take to get a divorce?
Can I file for divorce myself?
What if my spouse doesn't answer?
I'm dating someone, will this hurt my case?
What is legal custody?
What is physical custody?
How is child support determined?
Does the law require me to pay for my child's college
education?
What is spousal support?
Am I entitled to spousal support?
A divorce (or a dissolution) action is started by one spouse filing paperwork
with the court. The other spouse is then served with the papers.
You must have lived in the State of California for six (6) months to file for
divorce in the State of California. The divorce paperwork is filed in the county
where you have lived for three (3) months.
The papers completed and filed with the court to begin the divorce action are
the Summons, Petition for Dissolution, Confidential Counseling Statement, and
any additional forms required by your county.
There is a six-month waiting period from the date that the responding party
is served. Your marriage cannot be ended before this six-month period is up. If
an agreement is reached by the parties and filed with court, the orders will be
effective when the Judge signs the papers, but the marriage will not be ended
until the six-month period is up. Your marriage is not automatically ended when
the six-month period is up. This is one of the perils and pitfalls experienced
in divorce cases. You must apply to the court for the final judgment. The Judge
must sign the judgment for you to be divorced.
There is a six-month waiting period from the date that the responding party
is served. Your marriage cannot be ended before this six-month period is up. If
an agreement is reached by the parties and filed with court, the orders will be
effective when the Judge signs the papers, but the marriage will not be ended
until the six-month period is up. Your marriage is not automatically ended when
the six-month period is up. This is one of the perils and pitfalls experienced
in divorce cases. You must apply to the court for the final judgment. The Judge
must sign the judgment for you to be divorced.
You can file your own divorce papers. There are many books and services
available to help you do this. See our bookstore and Debra’s book Divorce
123, A Client’s Guide to California Divorce.
If your spouse does not answer the divorce papers by filing papers with the
court within thirty (30) days, you can take their "default." You must
have a completed proof of service form to present to the court to show that your
spouse was served along with other paperwork.
This is a commonly asked question and it does not have a simple answer. There
is no legal prohibition against dating someone during a divorce action. However,
it is not always a good idea. If you have children of your marriage, your spouse
may object to this new person spending time with the children. This could be
based on pure emotions or on factual issues regarding parenting. Allegations can
be made about the new person by your spouse regarding the influence on the
children. Additionally, if emotions are still high, the addition of a new person
into the picture may make an amicable settlement harder to reach.
If you are living with a member of the opposite sex, this may have bearing on
spousal support issues. There is a presumption that a person needs less monetary
support if they are "cohabitating" with a member of the opposite sex.
Legal custody is the right and responsibility to make decisions in the
child's life regarding the child's health, education, and welfare. "Joint
legal custody" means that both parents shall share the right and
responsibility to make the decisions relating to the health, education, and
welfare of a child. "Sole legal custody" means that one parent shall
have the right and responsibility to make the decisions relating to the health,
education, and welfare of a child. Legal custody will usually be joint unless
one parent is absent or incapable of participating in the child's life. See the
article "Proposed Parenting Plan" for examples of legal custody
provisions.
Physical custody governs where the child resides. "Joint physical
custody" means that each parent shall have significant periods of physical
custody. Joint physical custody shall be shared by the parents in such a way to
assure a child of frequent and continuing contact with both parents. "Sole
physical custody" means that a child shall reside with and be under the
supervision of one parent, subject to the power of the court to order
visitation. The courts are moving away from sole physical custody to one parent
with "visitation" to the other parent, although there are situations
where such orders are appropriate. See the article "Proposed Parenting
Plan" for examples of physical custody provisions.
Child support is determined by a Statewide guideline. The guideline is an
algebraic formula that considers the earnings of each parent, the percentage of
time each parent spends with the children and other factors. Most lawyers and
judges use a computer program to figure out what the guideline support is. Most
courthouses have a program available for use.
The law does not require parents to support their children past the age of 18
(or high school graduation whichever is later). However, if you and your spouse
agree to provide for your child’s college education and that agreement is put
into a judgment signed by the judge, that order is enforceable and you will be
required to pay as provided in the order.
Spousal support is support payable to a spouse or former spouse that used to
be called alimony.
Unlike child support, spousal support is not determined by a clear-cut
guideline. There is a list of factors to be considered in determining whether
spousal support should be payable and what the amount should be. The factors
are:
(a) Whether the earning capacity of each party is sufficient to maintain the
standard of living established during the marriage, taking into account all of
the following:
(1) The marketable skills of the supported party; the job market for those
skills; the time and expenses required for the supported party to gain the
appropriate education or training to develop those skills; and the possible need
for retraining or education to acquire other, more marketable skills or
employment.
(2) The extent to which the supported party's present or future earning
capacity is impaired by periods of unemployment that were incurred during the
marriage to permit the supported party to devote time to domestic duties.
(b) The extent to which the supported party contributed to the attainment of
an education, training, a career position, or a license by the supporting party.
(c) The ability to pay of the supporting party, taking into consideration the
supporting party's earning capacity, earned and unearned income, assets and
standard of living.
(d) The needs of each party based on the standard of living established
during the marriage.
(e) The obligations and assets, including the separate property of each
party.
(f) The duration of the marriage.
(g) The ability of the supported spouse to engage in gainful employment
without unduly interfering with the interests of dependent children in the
custody of the party.
(h) The age and health of the parties.
(I) The immediate and specific tax consequences to each party.
(j) The balance of the hardships to each party.
(k) The goal that the supported party shall be self-supporting within a
reasonable period of time. A "reasonable period of time" for purposes
of this section generally shall be one-half the length of the marriage. However,
nothing in this section is intended to limit the court's discretion to order
support for a greater or lesser length of time, based on any of the other
factors listed in this section and the circumstances of the parties.
(l) Any other factors the court determines are just and equitable.
Debra V. Crawford.
Copyright © 2000 Divorce 123. All rights reserved.
Revised: May 29, 2011.
