FREQUENTLY ASKED QUESTIONS

What is divorce?
A divorce proceeding is instituted in order to terminate a valid marriage for reasons that occurred after the parties entered into the marriage. A divorce proceeding restores the parties to the status of unmarried persons.  In California it is referred to as a Dissolution of Marriage.  A proceeding for legal separation seeks a judicial determination regarding the financial and other obligations of a married couple living apart, but their marriage is not legally dissolved.

What is the difference between annulment and divorce proceeding?
An annulment (or nullity) proceeding is instituted for the purpose of determining by a judicial ruling that a valid marriage never took place due to some defect that existed at the time the parties were married.  By contrast, a divorce proceeding is instituted in order to terminate a valid marriage for reasons that occurred after the marriage was entered into.  Both types of proceedings restore the parties to the status of un-married persons.  A third type of proceeding, that for legal separation, seeks a judicial determination regarding the financial and other obligations of a married couple living apart, but their marriage is not legally dissolved.

What is child custody?
Child custody deals with who has custody of the children after a divorce or separation.  Custody and visitation issues can arise when parents are divorced or separated, when the parents have never been married, or when some type of reproductive technology, such as surrogate motherhood or sperm and egg donation cases, complicates the issues even further.  There are two components to the right of custody: legal custody and physical custody.  Legal custody refers to the right to make the decisions relating to the health, education, and welfare of the child, whereas physical custody determines the party with home the child resides.  California courts apply a “best interests of the child” standard when determining to whom custody should be awarded.  Although parental agreements as to the custody of the parties’ children are not binding on the courts, such agreements are generally approved by courts so long as they are in the best interests of the children.

What is child support?
Child support is a payment made from one spouse to another for the support of their children after a divorce or separation.  Child support payment amounts are determined in California pursuant to uniform child support guidelines set forth in California Family Code § 4050 et seq.  The guideline factors include the spouses’ incomes and the custody arrangements for the children.

What is spousal support?
Spousal support, or alimony, is the payment from one spouse to another for support after a divorce or during a separation. California courts consider several factors in awarding spousal support, including:

• each party’s earning capacity;
• the extent to which the supported party contributed to the supporting spouse’s attainment of education, training, a career position, or a license;
• the supporting party’s ability to pay spousal support, with regard to the supporting party’s earning capacity, earned and unearned income, assets, and standard of living;
• each party’s obligations, assets, and separate property;
• the duration of the marriage;
• the parties’ age and health;
• documented evidence of any domestic violence;
• the tax consequences to each party;
• the goal that the supported party shall be self-supporting within a reasonable period of time; and
• any other factors the court determines are just and equitable.

What is paternity?
Paternity proceedings address with who is identified and recognized as the father of a child.  Paternity can be important when trying to establish child support payments. Strong evidence is required to overcome the presumption that a child born during wedlock is the child of the mother’s spouse.

What is “community property”?
Assets acquired or income earned by a married person while living with his or her spouse are considered “community property.” Separate property is anything acquired by one spouse before the marriage, or during the marriage by gift, devise or bequest. In California, community property is divided equally if there is no written agreement between the divorcing spouses that states otherwise.

What does the term “domestic violence” mean?
Domestic violence is defined by California’s Domestic Violence Prevention Act to mean abuse committed against a spouse, a former spouse, a cohabitant, a former cohabitant, a person with whom the suspect has had a child or is having or has had a dating or engagement relationship, a child of such persons, or any other person related by consanguinity or affinity within the second degree. “Abuse” in this sense could include:

• physical behavior (slapping, punching, pulling hair or shoving); 
• sexual assaults or harassment (unwanted fondling or intercourse, sexual jokes, and insults);
• threats (threatening to hit, harm or use a weapon);
• psychological abuse or harassment (attacks on self-esteem, attempts to control or limit another person’s behavior, repeated insults or interrogation);
• vandalism (causing damage to the car or other property of the victim);
• stalking (following a person, appearing at a person’s home or workplace, making repeated phone calls or leaving written messages); or
• cyber-stalking (repeated online action or email that causes substantial emotional distress).

Domestic violence involving bodily injury or the threat of bodily injury can result in criminal charges.  A domestic violence conviction has severe consequences that may affect immigration or child custody and visitation proceedings.  Domestic violence victims can seek protective orders to stop the abuse.

What are protective orders and how are they used?
A protective order is a specific type of restraining order that is issued by a court to prevent a recurrence of domestic violence and to separate the parties involved to enable them to resolve the causes for the violence. Getting a restraining order in California can remove and bar the harassing person from a jointly occupied residence, and a protective order can be obtained even if the victim has left the home to avoid further abuse. Protective orders can also provide for the protection of pets, participation in counseling, and the payment of spousal support or attorney fees. Violation of a restraining order is a crime punishable by jail time and/or a fine.

Is Collaborative Law right for me?
It can be. Collaborative law empowers spouses to dissolve their marriage with dignity and allows parties to protect their children from the strains of litigation, which can impose a personal responsibility in resolving conflict.  In family law, the collaborative law process is about cooperation, not confrontation.  Parties to divorce, their attorneys, and any other professional involved agree to make a good faith attempt to reach an amicable settlement without going to court; collaborative practice is intended to minimize difference while working toward that resolution. It is a problem-solving method, which encourages mutual respect, provides for open communication, and prepares individuals for new lives.

What are the grounds for divorce in California?
In California, which is a “no fault” divorce state, dissolution of marriage may be obtained either on the basis of “irreconcilable differences,” which led to an irretrievable breakdown of the marital relationship, or on the basis of one spouse’s incurable insanity.

What is discovery?
Discovery is a formal request for information and documents that must be provided to the requesting party.  There are exceptions to this requirement for privileged information.  There are also other exceptions that may apply.  This is something that would be discussed with your attorney at the time you are required to deal with a specific discovery request.  Here is an article that discusses discovery in more detail.   Discovery Basics