Guiding You Through The Divorce Process

Divorce FAQ

Below are answers to some of the questions our attorneys are asked most often. Contact us to get answers specific to your unique situation.

How Long Does It Take To Get Divorced?

Once the divorce petition is filed and served upon your spouse, it will take at least six months to obtain a status-only dissolution of the marriage. However, an agreement resolving all issues, except status, can be reached before six months.

What Are The Requirements For Divorce?

In order to file a successful petition for the dissolution of your marriage, or divorce, you or your spouse need to have lived in the state for the past six months and in your current county for at least three months. As California is a no-fault divorce state, there are no other legal requirements, other than paying the court filing fee.

What Is The Standard Divorce Process In California?

Every divorce is different, but most follow this basic procedure:

  • One spouse files a divorce petition and serves a copy to their spouse.
  • The other spouse files a response to the petition.
  • If the couple has children, one spouse files for temporary child support and/or custody while the divorce is ongoing.
  • The other spouse files a response giving their opinion on what temporary child support and child custody should be.
  • The family court judge holds a hearing on the matter and issues an order.
  • Each spouse files a declaration of disclosure and serves each other copies. The declaration of disclosure is a collection of forms you use to disclose all the community and separate property you own.
  • Each side’s attorney goes through the discovery process, where they formally request and receive paperwork, depositions and other relevant evidence.
  • Each attorney may consult multiple expert witnesses, such as forensic accountants and child psychologists, to help them make their case.
  • The parties negotiate to settle matters like property division, alimony and child custody. Most of the time, the parties settle all or most of the matters out of court. You might also try alternative dispute resolution methods such as mediation.
  • If there are still unresolved issues by the trial date, you and your ex, along with your lawyers, will go to court and hold a trial to have the judge decide them.

The typical divorce requires you to follow many steps. Our experienced divorce attorneys have guided thousands of clients through the process.

How Much Is This Going To Cost?

The answer to this question varies based on your situation. The cost of your divorce depends on several factors such as the number and complexity of the issues involved in the settlement process, and the willingness of both parties to work together. The more complex and contentious the issues of your divorce, the more expensive it gets.

Can I Handle The Divorce Paperwork On My Own?

Yes. According to the state of California, over 80% of Californians attempt to file divorce paperwork on their own. This is not the percentage who successfully complete a divorce on their own which is much lower. We provide a blend of services to help you manage the process on your own, yet have the support of paralegals or an attorney if needed. This ensures that your paperwork is in order, and that you are prepared for each step of the process but keep costs and time frame at a minimum.

What About Mediation?

Divorce mediation is a good option for couples who want to reduce the amount of conflict involved in their divorce. It’s often cheaper and faster than the traditional process of litigation and court. There are several advantages for couples who can make this option work.

What Happens If We Can’t Agree On Every Item In The Separation Agreement?

The bottom line is that if the two parties can’t agree on all issues in a divorce, they will receive the assistance of a court-ordered mandatory settlement conference before trial. If the settlement conference fails then a trial is normally set.

I Want To Keep The House But My Spouse Won’t Leave. Can I Kick Them Out?

You have the right to an emergency “kick-out” court order if your spouse has assaulted you or threatened to do so. If it is not an emergency, you can get a kick-out order if you can prove that letting your spouse stay in the house would cause physical or emotional harm to yourself, one of your minor children or someone in your spouse’s “care, custody and control.”

Otherwise, your spouse does not have to move out if they don’t want to – and neither do you. In most cases, however, it is difficult for spouses to continue living together after divorce proceedings start.

What Is Community Property? What About Separate Property?

One of the most significant and often time-consuming issues in divorce is division of property. Understanding community vs. separate property can help during this process.

  • Community property refers to all assets and property accumulated during the marriage. Some of the most common examples of community property include the marital home and joint bank accounts.
  • Separate property refers to all assets and property each spouse accumulated prior to the marriage. Some of the most common examples of this include vehicles and student loan debts. In some cases, retirement accounts can also be considered separate property.

As this is one of the more complicated and involved parts of divorce, it is most advisable to consult your divorce attorney when faced with issues regarding community vs. separate property. An experienced attorney can help ensure all assets and property are properly classified in the event of your divorce.

Can I Get Spousal Support? How Much?

Spousal support arrangements generally depend on a few different factors. This type of support is designed to help both spouses maintain current standards of living until a time where it is no longer necessary. In California, it is policy that both spouses become self-sustaining within a reasonable amount of time. There are two different types of spousal support: temporary and permanent.

  • Temporary support is ordered while a divorce is pending
  • Permanent support is set during the divorce process and referred to as a “post-divorce judgement.”

There are approximately 14 factors considered when determining permanent support, from earning potential to the length of the marriage. An attorney can better help people estimate their eligibility and the amount they should receive in spousal support both temporary and permanent.

Who Will Get Custody Of The Children?

In California, normally both parents share custody of their children. San Diego courts follow the laws and policies in California including that there is frequent and continuous contact between children and their parents, this is considered in the child’s best interest. This is the starting point. A child’s custody with a parent will be affected by a wide range of other relevant circumstances such as the age of the child, the health of the child, the relationship of the child with the parent, a parent’s drug or alcohol abuse history, any physical abuse or neglect of the child, any criminal activity of a parent, or other mental health issues considered harmful to the child.

What Effect Does Infidelity Have On Child Custody And Division Of Assets?

None. California is a “no-fault” divorce state. Basically, this means that if one party wants to get divorced they may do so, even if the other party disagrees.

Do I Lose All Parental Rights If My Ex Gets Sole Child Custody?

No. Except in cases of abuse, neglect or unfitness, both of a child’s parents retain legal child custody. Legal custody refers to the right to have a say in the child’s upbringing. For example, you and your ex both decide things like where your kids will go to school, who their pediatrician will be and what religion they will be raised in. This is true whether you share physical child custody or one parent gets sole custody and the other gets parenting time.

What Is The “Date of Separation” And Why Is This Important?

The practical definition of the date of separation in a divorce is the day that the marital couple stopped being a community in the eyes of the law. Now there is a requirement for physical separation as well. The dates of separation are important for many reasons as the length of the marriage itself can and will have an impact on issues such as spousal support and the division of some assets.

What Are The Requirements For California To Have Jurisdiction Over A Divorce?

In order to file for a divorce in California, one of the parties must have lived in California for at least six months prior to filing the divorce petition. One of the parties must have lived in the county where you file for at least three months prior to filing.

Can We Modify The Terms Of Our Divorce Decree Later?

A divorce settlement can be modified after finalized due to changing circumstances. You may appeal the terms of your settlement if there is evidence of fraud or a mistake, or new information about your situation has come to light. Provisions regarding custody, child support and spousal support may be modified if circumstances of either party change as well.

Do I Have To Respond If My Former Spouse Serves Me Divorce Papers?

Yes, you have 30 days to submit a response. If you fail to do so, the other party can request a judgment by default, and you will not have the ability to challenge any of the orders the court issues in your case. It is in your legal and personal interests to file a response within 30 days.

For answers to these and other questions, contact our firm, Andrew P. Johnson, APC, by email or by giving us a call at 760-278-3262.