Family law matters are complicated, we are at the ready to help you. Here are some commonly asked family law questions we have answered with general information not intended to replace legal advice. For advice tailored to your specific needs, please contact us for a consultation.
Divorce & Separation
Where do I file for divorce?
You generally file for divorce in the superior court in the county where you reside or the county in which your spouse resides. To file for divorce in California, either you or your spouse has to have lived in California for the past 6 months and in your current California county for the past 3 months.
How long does it take to get divorced in California?
By law, your divorce cannot be final for at least six months. This is called the "mandatory waiting period". The purpose behind the mandatory waiting period is that California seeks to ensure that both parties are truly committed to ending their marriage or partnership. A longer waiting period is more contributive to spouses having the opportunity to gain perspective and possibly pursue reconciliation.
The mandatory waiting period begins once the initial divorce papers are filed and served on your spouse, or your spouse files a response, whichever occurred first.
What do I need to prove to be divorced?
California is a no-fault divorce state, meaning that a spouse does not have to prove wrongdoing to obtain a divorce. The general rule is that a spouse can obtain a divorce if there are "irreconcilable differences" meaning the marriage no longer works and there is no possibility of saving the marriage through counseling or other means. The other spouse does not have to agree for you to file for a divorce.
Will an affair impact my divorce in California?
These days, adultery rarely has much of an impact, if any, on the distribution of property — except in cases where one spouse has used marital property to support an extra-marital relationship. For example, if a husband borrows against marital property to support his mistress, that fact might be taken into account when dividing and distributing property.
Adultery is unlikely to affect a custody determination. If the unfaithful spouse did not expose the children to the other relationship or inappropriate people and situations during the affair, it would likely not be a factor.
Is a divorce trial necessary?
No. In fact, most cases settle before going to trial. Before moving to the courtroom, the parties may first attempt to resolve the conflict themselves, either alone or with the aid of legal counsel. In the event the parties do not reach an agreement, they proceed to trial.
What if we no longer want to divorce but have already filed?
If the Judgment has not been filed, you and your spouse may agree to dismiss the divorce action without prejudice. This will end the case, but it will not restrict your ability to refile for divorce in the future.
Can I change my name at the time of divorce?
Yes. You can change your name as part of your divorce if you are going back to a former legal name such as your birth name.
How much will my divorce cost?
It depends. Every divorce case is different and there are too many variables to give an accurate estimate. But your lawyer can discuss which factors may influence how much your divorce will cost you. Examples of fees and costs you will likely encounter include:
- Attorney's fees
- Filing fees and other court fees
- Process service fees
- Fees associated with expert witnesses such as:
- Tax experts
- Forensic accountants
- "QDRO" experts
- Child custody evaluators
- Real estate appraisers
- Vocational evaluators
The actual costs of these fees very, however, depending on things like the complexity of the issues, scope of the discovery process, whether you require expert witnesses, and more.
Is child support tax deductible?
No. Child support is not tax-deductible for the payor nor it is taxable to the recipient.
Who is responsible for our children's health insurance?
When the court sets an amount for child support, the court must also consider each parent's health insurance coverage. Any parent who has health insurance (including dental and vision coverage) available for a child they support at no or reasonable cost will be ordered to maintain the insurance. The cost of maintaining the insurance is in addition to the amount of child support ordered; however, the child support amount ordered will take into consideration the cost of the health insurance coverage.
Health insurance coverage is presumed to be reasonable in cost if the cost to provide the health insurance coverage does not exceed 5 percent of gross income. The 5 percent figure for the cost of health insurance coverage is the difference between self-only and family coverage.
If health insurance coverage for the children is not available without cost or at a reasonable cost, the court must order that each parent obtain it if it becomes available in the future.
What is the difference between spousal support and alimony?
There is no difference between spousal support and alimony. They are different terms for the same thing. In California, the term "spousal support" is used.
What are the income tax aspects of spousal support?
For spousal support orders and judgments entered on or before December 31, 2018, the recipient of spousal support must include the support payments in their income and the payor of spousal support may deduct the support payments from their income on both of their California and Federal tax returns.
For spousal support orders and judgments entered on or after January 1, 2019, the treatment of spousal support payments differ under California law and Federal law. In California, spousal support payments continue to be included in the recipient's income and deducted from the payor's income; however, under Federal law, the recipient of spousal support does not include the support payments in their income and the payor may not deduct the support payments from their income.
What is a "Gavron" Warning?
Generally, a "Gavron Warning" is when the recipient of the spousal support is given notice that they must make reasonable efforts to become partially or fully financially independent of their former spouse. It can be given verbally in court or in writing. It is usually given in along-term marriage.
Family Code section 4330(b) states, “When making an order for spousal support, the court may advise the recipient of support that he or she should make reasonable efforts to assist in providing for his or her support needs, taking into account the particular circumstances considered by the court pursuant to Section 4320, unless, in the case of a marriage of long duration as provided for in Section 4336, the court decides this warning is inadvisable.”