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Frequently Asked Questions About
Getting A Divorce in California
How long will it take for my divorce to be completed?
A divorce is not a quick process. The soonest you can terminate your marital status is six
months and one day after service of the Petition on the Respondent. Other issues in the case can
take a longer or shorter time to resolve. The timing of resolution may depend upon the amount of
information to gather, the emotional state of the participants, and the complexity of the issues
to resolve. The Collaborative/Mediation Process can result in an agreement in weeks or months. In contrast, litigated cases can take a number of years to conclude.
Will I automatically be divorced in six months?
In California, you can obtain a dissolution of your marriage (formerly called a divorce) no
earlier than six months and one day from the date the Petition is served on the Respondent. If
the other issues of the divorce (i.e. property division, support and parenting issues) are not
resolved within this six month time frame, you are entitled to request a "bifurcated judgment."
This is a legal phrase meaning that your status as a married person is separated from the other
issues in your case, and a judgment terminating your status as a married person is obtained.
This does not happen automatically. If you want to terminate your marital status before the other
issues of your case are resolved, you must affirmatively ask the court for relief. It will not
magically happen at the six month mark.
What is the difference between a "legal separation" and a "divorce"?
The main difference between obtaining a legal separation and obtaining a divorce is that
marital status is not ever terminated in a legal separation. Some parties choose to pursue a
legal separation for personal reasons such as religious beliefs or health insurance concerns.
They still, however, must address the same issues as parties undergoing a divorce (i.e. support,
parenting, division of marital assets and debts). Also, to file for a divorce in a certain
county, you must reside there for at least three months. If you have not lived in that county for
three months, you can first seek a legal separation (which has no residency requirements for
filing) and then later amend your Petition to file for a divorce once you have resided in the
county for three months.
What protects me from having my spouse take all of the money/assets?
While a dissolution proceeding is pending, there are certain duties and restraining orders
which apply to both spouses. At the beginning of every divorce case, the court automatically
issues restraining orders. These are found on the back of the Summons. We also include them in
the agreements that start the Collaborative/Mediation Process. Generally, you are prohibited from
doing any of the following:
- Taking minor children out of state without prior written consent of the other parent or
court order;
- Making changes regarding your insurance, including cancelling, borrowing against, cashing,
or changing the beneficiaries. This includes all types of insurance;
- Transferring, selling, or concealing assets or using them as security for a loan, without
the consent of the other spouse or court order; and
- Making certain types of changes in your estate plan.
In addition to these restraining orders, you have a fiduciary duty to manage and control
community property properly. This duty is one of "the highest good faith and fair dealing." You
must provide information or access to information which affects transactions regarding community
property. If you obtain a profit from community property without the other spouse's consent, you
hold that benefit as trustee for the other spouse.
How long will I be entitled to receive or be obligated to pay spousal support?
Under the law, the duration of spousal support is always within the discretion of the court.
As a general framework, however, if the period between the date of marriage and the date of
separation was less than ten years, you may be entitled to or required to pay support for
approximately one half the length of the marriage. For example, if you were married for six
years, spousal support may be paid for three years.
If you were married for a period of greater than ten years, this is considered a marriage of
"long duration," and the duration of support could extend for a much longer period of time. If
litigated, a court would usually retain the ability to make decisions in the future about changes
to the amount and duration of spousal support. In the Collaborative/Mediation Process, the length
of time that spousal support is paid is typically one of the questions that is discussed and
agreed upon.
How are spousal support and child support calculated?
In the Collaborative/Mediation Process, you and your spouse are able to determine how you want
to calculate support. Different people consider different factors, but typically we look at the
income, expenses, resources available, and standard of living. In the absence of an agreement,
the following is how a court will determine support:
Child support is calculated by using a "guideline" formula. Attorneys and court systems in
California use a computer program which calculates guideline child support. This guideline
formula takes into consideration the respective incomes of each party, the percentage of time the
child has with each parent, and various other factors that affect an individual's income. The
"guideline" amount is followed by the court except in rare and unusual circumstances.
Spousal support during the period from separation until Judgment is entered is also calculated
by a computer program. However, support determined in the Judgment and thereafter is based on the
following circumstances:
- The standard of living enjoyed by the parties during their marriage;
- The income or earning capacity of each party;
- The marketable skills, job training or education needed for the supported spouse to
develop or increase earning ability;
- The extent to which the supported party's present or future earning capacity is
impaired due to periods of unemployment to care for the children and the household;
- The extent to which the supported party contributed to the attainment of education,
training, or career of the paying party;
- The needs of each party based on the standard of living established during the
marriage;
- The obligations and assets of each party;
- The duration of the marriage;
- The ability of the supported spouse to engage in gainful employment without interfering
with the interests of dependent children in that spouse's custody;
- The age and health of the parties;
- Documented history of domestic violence;
- The immediate tax consequences to each party;
- The balance of the hardships to each party;
- The goal that the supported spouse be self supporting within a reasonable period of time.
For marriages of less than ten years, this is generally one-half the length of the marriage;
- Criminal conviction of an abusive spouse;
- Any other facts the court determines are just and reasonable. In determining long-term support, the court is not permitted to use a formula. The possible
range of support which could be ordered is broad because the judge who makes the decision has
substantial discretion.
What happens to gifts or inheritances or assets I owned prior to marriage?
Under the legal model, a gift or inheritance is the separate property of the party receiving
the gift or the inheritance. It is not a community property asset that a court will be allowed to
evenly divide, unless the gift or inheritance is intended for both spouses. Separate property
also includes assets owned prior to marriage. Subsequent actions of the gift recipient can alter
the ownership of or rights associated with the ownership of separate property.
In the Collaborative/Mediation Process, you and your spouse decide how to distribute property.
In some marriages, the understandings regarding gifts or inheritances have not been clear and
become a subject of discussion in the Collaborative/Mediation Process.
Do I ever have to appear in court?
It is not necessary to appear in court unless you and your spouse have to rely on a judge to
make decisions about support, parenting and property division. If you and your spouse are able to
settle these issues, the Marital Settlement Agreement, which sets forth the division of the
property, support and parenting arrangements, can be submitted and approved by the court without a
personal appearance by the attorneys or the spouses/parents.
How do I help our children deal with this process?
Talk with your children and be open and honest, without disparaging the other parent. Saying
or implying negative things about the other parent in front of your children is harmful and will
cause long term harm to your children and their relationships with you and the other parent.
There are also many resources available in Sonoma County to help children deal with the
transition. Programs for children are offered through Kids Turn and Kaiser, and there is an
abundance of reading material available.
What is the difference between "legal custody" and "physical custody"?
Legal Custody refers to the right and the responsibility to make major decisions relating to
the health, education, and welfare of a child. Physical Custody refers to the periods in which a
parent physically cares for the child.
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