Frequently Asked Questions
What if we want to reconcile but we have already started the divorce process?
If you and your spouse reconcile and no longer want to divorce or legally separate, you can request to dismiss your Family Law Case, at any time before the actual commencement of trial. However, any filing fees paid to the Court for filing the Dissolution Petition or Response cannot be recovered.
Can I get an annulment?
Annulment is a legal procedure for declaring a marriage null and void. Proving there is a legally valid reason to get an annulment can be very difficult. Incestuous and bigamous marriages are void from the beginning of the marriage or domestic partnership. To get an annulment, you must be able to prove to the Judge one of the following reasons existed at the time of the marriage or domestic partnership.
- Minority: The party filing for the annulment was a minor at the time of the marriage or domestic partnership.
- Prior existing marriage or domestic partnership where the marriage or domestic partnership took place after the former spouse or domestic partner was absent for 5 years and not known to be living or generally thought to be dead.
- Unsound mind
- Fraud. The fraud must have been about something essential to the relationship that directly affects why the party who was deceived agreed to the marriage or domestic partnership.
- Physical incapacity, where one of the parties was physically incapable of consummating the relationship and continues and appears to be incurable.
Can My Spouse Cancel My Health Insurance?
During the divorce, your spouse cannot cancel your health insurance, under the Automatic Temporary Restraining Orders (“ATROS”). These Standard Family Law Restraining Orders become immediately effective, upon both parties, upon service of Summons in a Dissolution, legal separation, nullity or paternity action. The ATROS remain in effect until a final Judgment is entered. When the final Judgment has been entered, your spouse may cancel your health insurance, unless you agree otherwise.
What are automatic temporary restraining orders (ATROS)?
Automatic Temporary Restraining Orders (“ATROS”) refer to the Standard Family Law Restraining Orders that become immediately effective, upon both parties, upon service of Summons in a Dissolution, legal separation, nullity or paternity action. The ATROS remain in effect until a final Judgment is entered. The ATROS are on the reverse side of the Summons form and cover protections regarding minor children, insurance, property and instruments that transfer property at death.
Can i stop my spouse from divorcing me?
No. When one spouse files for Divorce or Legal Separation, both spouses do not have to agree to end the marriage. Either spouse or partner can decide to end the marriage, and the other spouse/partner, even if he or she does not want to get a divorce, cannot stop the process by refusing to participate in the case. If a spouse or domestic partner does not participate in the divorce case, the other spouse/partner will still be able to get a “default” judgment and the divorce will go through without their participation or attendance.
I was just served with divorce papers. Now what happens?
You have thirty days from the date you were served to file and serve your Response form on your spouse. You can agree or disagree with the relief your spouse or domestic asks for in the Petition. If you do nothing, your case will proceed by “Default” and whatever your spouse or domestic partner asks for in the Petition will probably be granted.
What does it mean to “serve” someone with pleadings?
Generally, service of pleadings of a party refers to the act of delivering or informing a party with documents relating to their case. The law says that when you sue a person, partnership, corporation, or the government, you must give formal notice to the other side that you have started the legal process.
Service is proper when the server actually confirms the party’s identity and gives them the documents, or when they are mailed to the party. At the time of service the process server was at least 18 years of age and not a party to the action.
What is the 6-month waiting period?
The process of getting a divorce begins once you file your petition. Before your divorce is finalized, all the issues must be resolved, either by default, agreement or through contested court proceedings (hearings and/or trial). You must have prepared and filed all of the necessary paperwork and paid all the applicable fees. Every case takes a different length of time to resolve. The process may take several months if the case is uncontested, or it could take much longer if there are complex issues. DO NOT ASSUME THAT YOU ARE DIVORCED UNTIL THERE IS A JUDGMENT SIGNED BY A JUDGE AND PROCESSED BY COURT STAFF. In all cases, your marital status cannot be terminated any earlier than six months after your spouse is either served with the divorce papers or files a response to the action.
What is mediation?
Mediation can be used for your divorce or to modify a prior court order. The parties negotiate a mutually agreeable settlement with the help of a neutral third party mediator who is experienced in family law and mediation. The parties each present their concerns and positions about various issues and the mediator facilitates negotiations between the parties. Parties may participate in mediation with their attorneys if both sides are represented. Mediation may last one or more sessions depending on the issues at hand, the complexity of the case and how much progress is being made. At the end of the mediation session(s), the agreement is drafted, the parties sign the agreement and the Court will review and approve it. Once the Court has approved the agreement, it is a Court order that both parties must abide by. Mediation allows each party to have control over the outcome of the case rather than requesting a Judge to make orders in their case.
How is child support calculated in california?
Both parents of a child are responsible for providing financial support for their child(ren). The custodial parent financially supports their child(ren) by providing housing, groceries, clothing, school supplies, and other common expenses. Generally, the noncustodial parent pays child support to assist in paying for these common expenses. The amount of guideline child support paid is determined by the amount of time each parent is responsible for the child and each parent’s net disposable income, which is a person’s total income less taxes, deductions and specific expenses. Child support does not include child care, medical expenses not covered by insurance, travel expenses or special needs of a child. These additional costs may be divided equally between the parents.
If I don’t see my child, can I stop paying child support?
NO. Access to the child for visitation and payment of child support are two separate issues. If you are having trouble seeing your child when you are scheduled to do so, or if the other parent is preventing you from seeing your child according to the court order, you need to return to court to address your current situation
What does “no fault”divorce in california mean?
In California, a party requesting a divorce does not have to prove “fault” or material misconduct by their spouse in order for the Court to grant the divorce. In the past, a party was required to prove his or her spouse committed adultery, cruelty or another “wrongful” act. Historically, the spouse at “fault” was penalized and received a lesser portion of the marital assets or less timeshare with the parties’ children. In California, the Petitioner must simply state that “irreconcilable differences” has arisen between the parties to request a divorce. By not focusing on who is to blame, the parties’ financial and emotional resources may be utilized to address the legal issues at hand.
How long do i have to live in california to file for divorce?
In California, the same basic procedures apply to people who are legally dissolving a marriage or a registered domestic partnership. To file for divorce, either one of the spouses or partners must have lived in the State of California for six (6) months and lived in the county for three (3) months before starting their divorce in that county.
What is the difference between divorce and legal separation?
At the end of a divorce, the parties’ marital status is returned to “Single”. Unlike divorce, a legal separation does not terminate the marriage. You and your spouse remain legally married so neither of you can remarry another person. The same legal issues are addressed in a legal separation as in a divorce like child custody and visitation, child and spousal support and the division of assets and debts. Some parties choose to pursue a legal separation to allow time to determine if divorce is the right step and some choose legal separation for religious or financial reasons. If neither party meets the residential requirements to file a divorce action, the parties may file a legal separation first because there are no residential requirements to request a legal separation. Both parties must also agree to pursue a legal separation. If the responding party wishes to pursue a divorce rather than a legal separation, the moving party does not have a choice.
What can i expect at the initial consultation?
Prior to setting up a consultation, you will complete a detailed intake sheet with some basic information about your case and return it to our office. It is also helpful to provide our office with any court papers you may have in your possession prior to your consultation. If you have a hearing date or other time-sensitive matters, we will discuss those first to ensure they are addressed. We will also discuss any major concerns you have, what your objectives are and how we can work together to achieve those objectives. Hiring a San Diego divorce attorney is a very personal matter and during the consultation you should determine if you are compatible with your attorney. In preparation for your consultation, it is helpful to compile and organize documents and notes to bring with you, create a timeline of events and begin collecting financial documents. This process could also generate some additional questions to ask during the consultation.
What are the benefits of hiring an attorney?
Making the decision to hire an attorney to assist you in your family law matter can make a substantial difference throughout the process and in the final outcome of your case because family law is complex and the stakes are high. Family law matters, especially child custody, can be difficult to resolve without the help of a legal professional. Your attorney can provide a viewpoint that you cannot see if you are involved in an emotionally charged divorce or child custody battle. A San Diego divorce attorney also has the experience to explain how your actions can affect your case and your financial future. With the assistance of your San Diego divorce attorney, you can make informed decisions throughout your case and receive guidance throughout the process. Your divorce may have a life-long impact on the lives of you and your children and you owe it to yourself to consult with an experience San Diego divorce attorney.