Disclaimer: Information on this website is presented as generalized suggestions and possibilities to consider when asking your family law attorney specific questions about your particular circumstances and shall not be construed as legal advice. No attorney-client relationships are formed from use of this website.
1. "How long will my divorce (or domestic partnership dissolution) take?"
No less than six months. There is a six-month waiting period from the date the Summons and Petition of Dissolution of Marriage are served on the respondent before a Judgment dissolving the marriage can be entered. However, usually it takes longer than six months to resolve all of the issues.
Some people mistakenly think that as soon as the six-month period expires, they will automatically be divorced. This is not correct. Until there is a signed agreement resolving all issues in place which has been attached to a Judgment form submitted to the court and signed by the judge, or the case has gone to trial and the judge has entered a Judgment dissolving your marriage, you are still married to each other.
If either spouse wants to be divorced and returned to “single” status as soon as the six-month period expires even if not all of the issues have been resolved by that time, a “status only” Judgment can be obtained, as long as certain requirements are satisfied. These include serving preliminary disclosure documents (financial disclosure documents that are required to be completed and exchanged in every divorce case), and orders put in place for the protection of the other spouse, including that any existing health insurance coverage for the other spouse and the minor children must remain in place, any retirement plans must be formally “joined” to the divorce action, and other conditions. Therefore, you will still be “tied” to your former spouse with respect to finances until all of the issues are resolved either by agreement or by the judge. Unless you have a specific reason for needing to be divorced quickly, such as planning to remarry, it is more cost effective to go through the process of resolving all of the issues and then obtain a Judgment dissolving the marriage.
It is fairly typical for a divorce to take 9 months to 2 years when you have child custody issues, child and spousal support issues, and/or property and debt division issues (such as a home, retirement accounts, businesses, credit cards). This is because it takes time to get assets valued and to negotiate agreements. Typically, spouses agree on some issues but cannot agree on other issues, so court hearings can be scheduled on the disputed issues so the judge can decide. You will also be scheduled for a settlement conference before you go to trial. It can takes weeks or months to get these dates scheduled at the courthouse. In the meantime, parties can continue working on informal negotiations outside of court. They may also decide to hire experts, appraisers, accountants, etc. and conduct discovery to obtain information needed to evaluate the assets and debts and get the case ready for either settlement or a trial.
Another reason it can take a long time to complete the divorce is that when there are child custody issues, there can sometimes be several custody hearings during the course of the case. When this is happening, parties often concentrate primarily on their children and tend to keep their financial issues on the ‘back burner” until the issues involving the children are stabilized. The judge will often make temporary orders concerning child custody, visitation and child and spousal support and have the parties return for review hearings to make sure the child sharing plan is working out.
Finally, people ending a marriage go through a myriad of difficult emotions, including sadness, frustration, anger, and hurt, while trying to deal with creating a new life for themselves and finding a way to support two households. This can take a toll on even the strongest person, and it is typical for parties to “take breaks” from the throes of litigation to regain some balance and stability for themselves and their children. There can also be feelings of uncertainty and insecurity, both financially and emotionally. Emotions take time to process and it takes time to rebuild lives. For these reasons, as well, it can easily take longer than six months to complete your divorce.
2. "How much will my divorce cost?
You will likely hear the same answer from every attorney: “It depends.” The cost of your divorce is directly tied to whether you and your spouse are able to agree on how to divide your assets and debts, child and spousal support, child custody and visitation issues. Each case is unique, and the time required for each case can vary widely. Even for a truly “simple” divorce where the parties agree on all issues attorney fees can be expected to be in the range of $3,000+ at a minimum for preparation of the required documents and filing fees. As of 2015, the filing fee to file a Petition for Dissolution of Marriage in Sonoma County is $435.
It is very common for one spouse to think “we have an agreement” and that they have a “simple divorce,” only to find out the other spouse has a very different idea of what they believe is a fair settlement. It is also common for one spouse to think the other party will not request child or spousal support, when in fact the other party has no viable means of surviving without support. When these differences surface, it becomes clear there is not an agreement and that it will take more time and attorney fees to work things out.
If you have minor children, you can expect there will be additional attorney fees because there are often areas of disagreement about child custody and child support. The same is true is you have a house, a business, or retirement plans because there are often disagreements in these areas, including with respect to the value of these assets, whether either party has a separate property claim in any of the assets, and reaching agreements on which assets will be assigned to each party (or sold), and how to pay equalizing payments.
The cost of the divorce also depends on whether or not the parties are reasonable and cooperative. In addition, it can be necessary to have real property appraised, retirement plans and businesses valued, and to gather other information. In most cases, the parties agree on some issues, but cannot agree on others, and it becomes necessary to go to court for a ruling from the judge on at least some of the issues. The parties can avoid court by attempting to resolve their issues at a settlement conference or in mediation. Private mediators’ fees can range from $300-$500 per hour but can be a worthwhile alternative to litigating in court for some couples.
3. "How do I get a divorce?"
A Summons and Petition for Dissolution of Marriage, as well as a Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act if you have minor children, are filed with the court, a case number is assigned to the case, you have your spouse personally served with these documents (unless they agree to accept service via mail and sign a Notice and Acknowledgment of Receipt). Each party completes disclosure documents, including a Schedule of Assets and Debts and an Income and Expense Declaration. The parties attempt to reach an agreement on all of the issues in their case, and if they are able to do so, a Martial Settlement Agreement is prepared and signed and is attached to a Judgment form. The Judgment with the Marital Settlement Agreement attached, along with several other required forms, are submitted to the court for the judge’s signature. If the parties are unable to agree on issues, either party can file a Request for Order with the court and set a hearing date and have the judge decide any disputed issues they may have. If parties need a longer hearing so they can testify and have other witnesses testify, they can ask the court to set a a longer hearing (a trial). Before parties go to trial, the court will require them to attend a settlement conference.
Divorce cases end one of two ways: (a) The parties reach an agreement; or (b) they go to court and the judge decides.
4. "Do I need a lawyer?
If you have no children, no assets, no debts, both parties are self-supporting, and you have a short-term marriage, you may want to consider representing yourself. You can obtain a packet of dissolution of marriage documents with instructions at the courthouse and/or obtain these documents on-line. If you have children or any of the other issues mentioned above, almost every person will benefit by having a lawyer, even if only for a consultation to help you understand your rights. Retaining an attorney for your entire case, or on a limited scope basis for just certain issues (see “Limited Scope Representation” page) ensures you will make better informed decisions regarding your case.
In most cases you will benefit from obtaining legal advice regarding your family law issues. Following are some examples where you should seek legal advice:
a. If you and your spouse cannot talk civilly to each other about the concrete details (dollars and cents) regarding dividing your assets and debts, child and spousal support, and child sharing issues.
b. If you do not have confidence regarding the honesty of your spouse regarding finances.
c. If you have children and you cannot agree on a child sharing plan, if the other parent will not allow you to have contact with your children or is unreasonably limiting your time with your children, or you or the other parent is planning to move away and there is no custody order in place.
d. If you plan to move to a different county and you want your divorce to be filed in the county you are moving to, you may need a lawyer to help make sure you file a Petition in that county and have it served on your spouse before your spouse does in order to establish jurisdiction of the case in the county of your choice.
e. If you have been accused of domestic violence or are the victim of domestic violence.
f. If you have assets such as house (even if it is “under water”), retirement accounts, or a business, you should consider retaining a lawyer to make sure these assets are properly valued, any separate property interests and/or reimbursement claims that may exist are assessed, that that each party receives the proper share of the assets.
g. If you have been married for over 10 years, you should consult with an attorney about spousal support, whether you are the higher earner seeking a “cut-off” date to stop paying support, or you are the lower earner spouse who seeking long-term support. A marriage of 10 years or longer is presumed to be a “long-term” marriage, thus potentially entitling the lower earning spouse to spousal support indefinitely. If the marriage is less than 10 years in length, usually spousal support is payable for one-half the length of the marriage. Also if the spouse who needs support has been out of the workforce for a long time (e.g., to care for minor children) and/or their job skills are outdated, it can may take a substantial period of time for them to complete vocational or other programs and be job-ready. An experienced family law attorney can help work through these issues to reach an agreement, or prepare the issue for trial, as the case may be, to seek a fair result. A vocational expert can be hired to interview and test the spouse who needs support to determine the type of work they are best suited for and their earning ability. The vocational expert can testify in court about these issues.
h. If you have been separated for a long of time without filing for divorce, you should consider retaining a lawyer because the “date of separation” can be a hotly contested issue. It is not uncommon for parties to separate (live separate and apart) for a long period of time, even many years, moving on to new relationships, while at the same time remaining “tied” to their spouse in certain respects, such as continuing to hold assets jointly, filing joint tax returns, participating in family get-togethers and holidays. The “date of separation” is important since it can dictate what assets and debts are part of the “community estate” and subject to division. Assets and debts acquired after the “date of separation” typically belong to the party who acquired the assets or incurred the debts. When spouses have different ideas on when the “date of separation” actually took place, it can significantly impact the division of assets and debts. In addition, the “date of separation” also establishes the length of the marriage which is a major factor in how long a spouse may be entitled to spousal support. There can be a great deal at stake depending on the final determination of what the “date of separation” was, and an experienced family law attorney can help make the proper legal and factual arguments for you to help you get a fair result.
5. "Do we have to go to court?"
Not necessarily. If you and your spouse are able to reach agreements outside of court, a Martial Settlement Agreement memorializing your agreement can be prepared and submitted to court without either of you ever having to step foot inside a courthouse. Along these lines, Jackie offers the following options:
a. Jackie represents one spouse and meets with both parties to negotiate an agreement. Jackie can be retained by one spouse and meet with both spouses to negotiate agreements on all of the issues in the case. Jackie will prepare a draft Marital Settlement Agreement and the other spouse can take it to an attorney of their choice for review to make sure it is fair and reasonable.
b. Jackie can be your mediator. (See “Mediation” page for more information.) As your mediator, Jackie will be neutral and will not represent either party. Typically each spouse pays one-half of the mediation fees. Each party will have an opportunity to express what they see as a fair settlement, Jackie will offer suggestions and advice on what a judge might do if the parties were unable to reach an agreement and ended up in court. She will help the parties complete the required disclosure documents and set goals to complete tasks so the mediation sessions are productive. When a global agreement is reached, Jackie will prepare a Marital Settlement Agreement and both spouses are given the opportunity to have an independent attorney of their choice review the Marital Settlement Agreement and get independent advice before signing it.
c. Four-way meetings. Each party is represented by their own attorney. The parties and their attorneys meet at one of the attorney’s offices for one or more sessions to discuss the disputed issues, and attempt to reach a settlement. Before the meeting, the attorneys will discuss their clients’ positions with each other, and may exchange settlement proposals, child and spousal support calculations, and other information and documents as appropriate, so that the meeting is productive.
d. Attorney-assisted mediation. Typically both parties will retain their own attorneys. If both parties agree to go to mediation, an experienced family law mediator will be selected and the attorneys and the parties will have one or more sessions with the mediator to attempt to resolve all disputed issues. The attorneys will submit a settlement proposal to the mediator ahead of time. Attorney-assisted mediation is recommended when there are complicated issues and/or for higher asset cases. This method is more expensive since each party is paying their own attorney’s fees plus one-half of the mediator’s fees. However, it often costs less than going to trial, and enables the parties to have control over their case by reaching an agreement they can live with rather than going to court and having the uncertainty of what the judge might decide.
If reasonable, good faith efforts to negotiate an agreement with the other spouse have failed, or if the other spouse or their attorney is unreasonable and/or uncooperative, it is time to go to court. In these cases, it is likely that more time and money will be spent on fruitless negotiations than you would spend going to court. A judge will decide the disputed issues. There are no jury trials in family law cases.
6. "How will our property and debts be divided?
If you have a Premarital Agreement or a Postnuptial Agreement that sets forth how you and your spouse will divide your assets and debts in the event of a divorce, that agreement will usually control, unless there is a basis to have the agreement “set aside” for fraud, undue influence or other wrongful conduct.
In the absence of a Premarital Agreement or a Postnuptial Agreement, the general rule is that all property (including real property, retirement accounts, bank accounts, and personal property), and debt (including mortgages, credit cards, car loans, and other debts) acquired during the marriage are divided equally. Often the division requires the sale of the family home, or one spouse can buy out the other spouse’s interest if they can qualify for a mortgage in their name alone.
There are exceptions and variations to the equal division rule. One example is when a couple buys a home during marriage using money for a down payment that one of them acquired from a separate property source, such as money they had prior to marriage, or money they received by gift or inheritance. In this scenario, the married couple owns the home as community property, but upon divorce, the spouse who contributed the separate property down payment is entitled to reimbursement of the amount he or she paid from their separate property funds, “off the top,” before the equity is divided, assuming they can “trace back” the funds to a separate property source.
Some married people choose to keep some or all of their bank accounts, automobiles, credit cards and other assets and accounts in their own name, sometimes out of convenience, and sometimes out of a tacit agreement to keep their finances separate. Despite the fact that these accounts and assets may have only one spouse’s name on them, they will usually be determined to be community property, unless the party can trace it back to a separate property source.
Some debts that are incurred for one spouse’s purposes that are completely outside any legitimate community purposes (e.g., gambling debts) can be assigned to the spouse who incurred the debt even though the debt was incurred during marriage.
Sometimes during the marriage one spouse will sign a Quit Claim Deed removing their name from the title to real property the parties acquired during marriage. Upon divorce, the spouse whose name remains on title may try to claim that the property is his or her separate property because they other spouse signed off on the title. However, unless the spouse who signed off received adequate consideration for his or her interest in the property, there is a presumption of “undue influence” in getting that spouse to sign off on the Quit Claim Deed and the court can rule that the transaction was not valid and that the property is community property.
When a Summons and Petition for Dissolution of Marriage is filed and served, automatic restraining orders go into effect that prohibit either spouse from transferring, encumbering, selling or otherwise disposing of any separate or community property, other than paying for necessaries of life. This means you cannot change beneficiaries on insurance policies, makes loans against the family home, or take other action effecting the community estate without the other spouse spouse’s consent.
The above is just a sampling of the many issues that may arise when dividing assets and debts.
7. "Why does she (or he) get part of my retirement?"
A husband or wife who has worked for years for their employer may feel that their pension or retirement is “theirs.” However, in a divorce, retirement and pension plans are treated the same as any other asset you acquired during marriage, such as a house, a car, or an investment or bank account, and the community interest in the retirement or pension will be divided equally between the parties like any other asset. If the spouse who has the retirement or pension plan acquired some of it prior to marriage or some after the date of separation, their separate portion will be assigned to them as their sole and separate property. A Qualified Domestic Relations Order (“QDRO”) is typically prepared to divide the community and any separate property interests (e.g., retirement accumulated prior to marriage or after separation).
8. "Why do I have to pay her (or him) spousal support?"
Husbands and wives, as well as domestic partners, have a mutual duty of support. Upon separation, that duty continues. The court can order the spouse who makes more money to pay spousal support to the other spouse, taking into account the parties’ standard of living, income of the parties, job skills and education, and other factors.
When determining the amount of “temporary support,” the judge will usually order “guideline” spousal support, which is calculated using the computer program used by the county where your divorce is filed (e.g., DissoMaster in Sonoma County, SupporTax in Marin County). At the same, the court can order one or both parties to pay specified community debts until the divorce is final. For example, the court can order the husband to pay a certain amount of spousal support to the wife but order that each of them must pay one-half of specified debts, such as a mortgage payment or credit card payment. The court can also order one party to make the monthly payments on community debts in lieu of paying spousal support.
In appropriate cases, such as where the husband or wife is voluntarily choosing not to work even though they have good job skills and there are jobs available, the court can make “job search” orders and/or impute income to a non-working spouse. For example, the court can order the non-working spouse to look for work, and if they do not prove they made good faith attempts to find employment, the court may impute income to that spouse for purposes of calculating support. The court may start by imputing only minimum wage, especially if the supported party has limited or outdated job skills.
During a marriage, spouses sometimes fall into patterns or reach agreements, whether intentionally or not, that one will focus more on career and will cover more of the parties’ living expenses while the other will focus more on caring for the children and running the home. When the parties separate, the court will continue having the higher earning spouse support the lower earning spouse. Often there is a huge difference of opinion between the parties as to “how much” the support should be “how long” it should continue. When the marriage is over 10 years in duration, the party receiving support has a duty to takes steps to become self-supporting within a reasonable period of time, which is generally considered to be one-half the length of the marriage. Eventually, a “permanent support” order or agreement will be made. If you cannot reach an agreement and you let the judge decide the amount of “permanent support,” the judge cannot use the computer program to determine the amount; instead, they must take various factors set forth in Family Code Section 4320 into account, including age and health of the parties, duration of the marriage, the assets, and debts of each party, marital standard of living and other factors. In negotiating the issue of spousal support, parties can agree that the supported party will receive a one-time lump sum payment instead of monthly payments.
9. "What about collaborative law?"
Collaborative law can be one of the most expensive ways to get a divorce because if the negotiations fail and the parties need to go to court, they are required to drop their attorneys and start over with a new attorney. Also, collaborative cases typically involve a team approach where parties are expected to hire their own collaborative attorneys, as well as other experts (e.g., accountants, therapists for themselves and their children, coaches, etc.) Many people can’t afford to employ these various professionals or don’t want to. Also, the reality is that most people who have arrived at a place in their life where they want to end their marriages do so because they don’t want to communicate with their spouse and/or cannot engage with them spouse productively, and they need the option of going to court and obtaining a ruling from a judge on those issues they simply cannot agree upon. Using the other methods described above (mediation, four-ways, settlement conferences) can get parties to a resolution with fewer sessions, more quickly, and with less fees and costs.
10. "Is California a no-fault state?"
Yes. Anyone can get a divorce for any reason and they do not have to prove there is a “good” reason to end the marriage or domestic partnership. Even if there is evidence that one spouse was more at fault than the other in causing problems in the marriage, assets and debts are still divided equally. There can be some exceptions, such as where a spouse uses community funds to pursue a completely non-community endeavor, such as gambling or using funds to engage in illegal conduct. In such cases the court can exercise their discretion and assign those debts to one party.
It should be noted that if there is evidence of domestic violence, abusive conduct, drug and/or alcohol abuse, and the like, this can have a significant impact on the court’s determination of child custody issues (see “Child Custody and Visitation” page) and a person who is found to have perpetrated domestic violence most likely will not be entitled to receive spousal support.
11. "We have been living together for years, but never formally married. Does California recognize our relationship as a 'common law marriage'?"
No. California law does not recognize common law marriage. You are either married or you are not. If you are not married, then there is no “community property” to divide and neither party is entitled to spousal support.
However, if you are not married but you and your life partner have made agreements with each other to pool money, acquire assets together, support each other, etc., you can file a Marvin action in civil court (separate from family court). This is based on the Marvin v. Marvin (1976) 18 Cal.3d 660 case where actor Lee Marvin lived with his girlfriend, Michelle Marvin, for six years. In 1970 Lee Marvin “compelled” Michelle to move out of the home they shared. Michelle sued Lee claiming that she and Lee agreed they would combine their efforts and earnings and share equally any property they accumulated as a result of their efforts, that they agreed “to hold themselves out to the general public as husband and wife and Michelle would render her services as a companion, homemaker, housekeeper and cook to Lee.” Michelle’s claim was that the she and Lee had entered into a contract to share all of the assets acquired during their relationship. She also argued she had given up career opportunities as an actress for Lee. The case established that unmarried couples who have an express agreement to share assets and/or to support the other can sue each other to enforce those agreements. Because Marvin cases are filed in civil court (not family court) you can have a jury hear the case. Marvin cases present the ultimate “he said/she said” problem and can be very difficult to prove.
If you have children with your significant other but are not married, then you can file a Paternity action to obtain an order establishing parentage, child custody and child support orders.