Divorce, Custody, Visitation, Support, Parentage and Restraining Orders
Mr. Gill has handled hundreds of family law cases dealing with wide range of issues such as Divorce, Custody, Child and Spousal Support, Modifications of Custody & Support, Move-Away Disputes and Restraining orders. We also handle Collaborative Divorces.
FREQUENTLY ASKED QUESTIONS
1. What is a "no fault" divorce?
“No fault” divorce is any divorce where the spouse or domestic partner that is asking for the divorce does not have to prove that the other spouse or domestic partner did something wrong. California is a “no fault” divorce state, which means that to get divorced in California you NEVER have to prove that the other person did something wrong.
To get a no fault divorce, one spouse or domestic partner has to state that the couple cannot get along. Legally, this is called “irreconcilable differences.”
2. What is my spouse or domestic partner does not want to give me a divorce?
In California, it is not necessary for both spouses or domestic partners to agree to the divorce. Either spouse or domestic partner can decide to end their marriage/partnership. It is not necessary for the other spouse to agree or “give you” a divorce.
The spouse or domestic partner who does not want to get a divorce cannot stop the process by refusing to participate in the case. He or she does not have to sign anything to agree to the divorce. If your spouse or domestic partner does not participate in the divorce case, you will still be able to get a “default” judgment and the divorce will go through.
3. Which county should I file for divorce in, if I have moved recently?
You must live in the county for 3 months and the state for 6 months before you can file for a divorce here.
If you do not meet the residency requirements in your county, you can file for legal separation, then file an amended petition for divorce in the county in which you live once their residency requirements are met.
4. What is the process for getting a divorce in California?
If you have been married for less than five years, have no children, don't own real estate, and have relatively limited property and debts, you may qualify for a summary dissolution. This is a simpler process, which generally doesn't require an appearance before a judge. You and your spouse must create an agreement about how you will divide your property and debts, and file it -- along with a joint divorce petition and other required forms -- with the court. Although you still have to wait six months before your divorce becomes final, you don't have to go through a lot of the procedures and appearances required for a regular divorce.
If you don't qualify for a summary dissolution, a typical dissolution of marriage requires the following steps:
One spouse files a divorce petition and serves it on the other spouse (called the respondent).
The respondent then has thirty days to file a response to the petition.
One of the spouses may request temporary court orders by filing for an Order to Show Cause hearing. At this hearing, the judge will make temporary child custody, support, and restraining orders.
The spouses then engage in discovery, which is the process by which they exchange information and documents that are relevant to the divorce. One of the required aspects of discovery is the preparation of the Preliminary Declaration of Disclosure. This is a court form in which each spouse lists the community and separate property. As part of this disclosure, the parties are also required to exchange income and expense declarations.
After the discovery is complete, the spouses and their attorneys will discuss settlement of the case. If the case is resolved by agreement, one of the attorneys will prepare a Marital Settlement Agreement, which should include all of the terms of the agreement. This is a contract that is signed by the spouses and their attorneys.
If the parties are not able to agree on all of the issues in the case, a trial will take place.
After the parties sign the Marital Settlement Agreement or after the trial has concluded, one of the attorneys will prepare a Judgment of Dissolution of Marriage. This is the document that contains all of the court's orders. The judgment is filed and the court mails a Notice of Entry of Judgment to each attorney.
5. Am I obligated to continue providing health insurance for my soon-to-be-ex if the divorce has been filed?
Absolutely. Until the divorce is finalized, you are to maintain the same health insurance coverage for your spouse. Conversely, if you are the person on your spouse’s medical plan, he or she needs to keep you on that plan.
6. 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.
7. What is a "Collaborative Divorce"?
Collaborative Law is a constructive problem-solving process where each party is represented by an attorney specially trained to work with the parties to reach an agreement outside of court.
In the collaborative process, settlement negotiations usually take place in four-way meetings where both parties and their attorneys are present.
A team of neutral professionals, including financial advisors, accountants and mental health professionals may also be involved in order to address the legal, financial and emotional aspects of the divorce.
8. What is child custody?
Child custody means the appointing of one or more persons to take care of and control a child under the age of 18 years.
In the State of California, there are several types of child custody:
Physical custody means who the child lives with most of the time;
Legal custody means who has the right and responsibility to make the decisions relating to the health, education and welfare of the child.
The physical and legal custody of the child may be "sole" or "joint."
Sole physical custody means that the child will live with and be under the supervision of one parent. (The court may order that the other parent has some rights to visit the child.)
Joint physical custody means that each of the parents will have significant periods of physical custody.
Sole legal custody means that one parent will have the right and the responsibility to make the decisions relating to the health, education, and welfare of the child.
Joint legal custody means that both parents will share the right and the responsibility to make the decisions relating to the health, education, and welfare of the child.
In general, after parents separate, it is considered best if the child has frequent and continuing contact with both parents and that both parents share the rights and responsibilities of raising their child.
9. How is child support calculated?
California has a statewide uniform guideline formula for figuring out how much child support should be paid. If parents cannot agree on child support, the judge must decide the child support amount based on the guideline calculation. The guideline amount is presumed to be correct. In very limited circumstances, the judge can order something other than the guideline amount.
The guideline calculation depends on:
How much money the parents earn or can earn,
How much other income each parent receives,
How many children these parents have together,
How much time each parent spends with their children,
The actual tax filing status of each parent,
Support of children from other relationships,
Health insurance expenses,
Mandatory union dues,
Mandatory retirement contributions,
The cost of sharing daycare and uninsured health care costs, and
Child support might also include the cost of special needs, such as:
Traveling for visitation from one parent to another,
Educational expenses, and
Other special needs.
10. What is a Domestic Violence Restraining Order (DVRO) and how can I obtain it?
A restraining order is a court order issued to prevent the recurrence of acts of abuse by a batterer.
Under the Domestic Violence Prevention Act, abuse is defined as any of the following:
Intentionally or recklessly causing or attempting to cause bodily injury.
Placing a person in reasonable apprehension of imminent serious bodily injury to that person or to another.
Engaging in any behavior that has been or could be illegal such as molesting, attacking, striking, stalking, threatening, battering, harassing, destroying personal property, contacting the other by mail, telephone, or otherwise, disturbing the peace of the other party.
To obtain a Domestic Violence Restraining Order you MUST have, or have had, a close personal relationship with the party you are asking to have restrained. Under the law, a relationship is defined as "close" if at least one of the following is true:
You are married or were formerly married to the other party.
You have or formerly had an engagement or dating relationship with the other party.
You and the other party have a child or children together.
You are related to the other party by blood, marriage or adoption, e.g., (mother, father, in-laws, siblings, adult children).
You and the other party are living together, or formerly lived together, as members of a "household."
The restraining order can include the following: restraints on personal conduct by the batterer; orders for the batterer to stay away from the victim's home/work and/or children's school; orders for the batterer to be removed from the residence; child custody and visitation and support orders and other miscellaneous orders.