frequently asked questions
In California, a divorce or dissolution of marriage shall be granted by the Court when “irreconcilable differences” are claimed by one or both spouses. Essentially, this means a married person who wants to end the marriage may do so regardless of whether the other spouse wants to stay together.
In California, you must be a resident of the state for at least 6 months, and a resident for 3 months of the county of which you wish to file.
If you do not meet the residency requirements in your county, you may file for legal separation and then amend your petition for divorce in the county you live in once the residency requirements are met.
No, it does not matter who is the first to file the divorce papers, and the Court does not give preference to the first spouse to file, nor any disadvantage to the other spouse.
Yes. You may file to end your same-sex marriage and domestic partnership within the same case.
Either spouse or domestic partner can decide, on their own, to end their marriage/partnership. It’s not necessary for the other spouse to agree or “give you” a divorce.
A spouse or domestic partner who does not want to get a divorce cannot stop the process by simply refusing to participate in the case. They do not have to sign anything to agree to the divorce.
If your spouse or domestic partner chooses not to participate in the divorce case, you will still be able to get a “default” judgment, and the divorce will proceed in that manner.
While papers will need to be filed with the Court, most divorce cases do not require the parties to appear in person. If specific issues need to be litigated during the divorce process, such as support, division of assets, or custody, the Court may require you and your spouse to appear at a hearing. It’s typical for Shorb & Connor APC clients to make decisions about their future and that of their children through their divorce attorney and not be required to appear in-person.
No. Under California law, both parents are presumed willing and capable to parent until proven otherwise. Mothers have historically been more likely to get primary custody of their children, although California judges are specifically prohibited from considering the parent’s gender when making custody determinations.
When setting child support amounts, the Court turns to the California Family Code, Section 4055, which provides the equation used to find the appropriate amount of child support by considering both parties’ incomes, the amount of time each spouse will spend with the child, the number of children, and the total net disposable income available.
Not so fast. It does not matter who has control or who is using the property; instead, community property items still belong to the community until the Court awards them to 1 spouse or the other.
Any separate property of a spouse or domestic partner still belongs to that person, even if it’s in use by the other party.
An item’s fair market value is determined by the amount an item sells for if sold “as is”, meaning in its current condition.
The fair value of furniture is what you would get for it at a yard sale or if listed in the wanted ads.
The fair value of a car can be determined by checking the Kelley Blue Book.
The fair value of a home can depend on many factors, so you should ask a real estate agent or a divorce attorney at Shorb & Connor APC in San Diego if a formal appraisal should be done.
Technically, debts incurred during the marriage are considered part of the couple’s “community property,” even if only made by one spouse. If debts are incurred friviousely or after separation, an argument could be made that the spending spouse be responsible for those debts.
Such an agreement can present problems for you and your spouse or domestic partner. When you applied for the credit cards, both of you signed the agreement to pay that debt.
Now, you’re terminating your partnership or marriage. Even if you say that you alone will pay the joint debt, the credit card company is not bound by your agreement with your spouse or any divorce court order.
The credit card company may still come after you or your spouse or when payments are not made. If this happens, both of your credit ratings will suffer.
This is called “commingling.” A common situation we see is when one spouse owns a house before the marriage, and then sold that house and used those proceeds as a down payment on a new house after getting married.
This new house’s down payment would be considered separate property (since the money came from selling a home that 1 person owned before the marriage or partnership). However, suppose the mortgage payments on the new house are made during the marriage or partnership using either you or your spouse’s earnings. In that case, the equity (value) resulting from paying down the house loan is community property.
The result is that the equity in the house is a commingled asset.
If you’ve found yourself in this situation, it’s essential you speak with an experienced divorce lawyer to help sort through the facts and determine what equity is rightfully yours.
Your pension can be the most valuable asset acquired during the marriage or domestic partnership, often exceeding that of a house. It may be worth more than all of your other assets combined.
It’s a smart idea to have a divorce lawyer at Shorb & Connor APC to help you any time you are evaluating such a sizable asset, but this is even more important when dealing with a pension. The reason is that special state and federal rules apply to pensions. These laws are very technical and do not apply to any other kind of asset.
A pension plan must be “joined” as a party to your divorce case before the Court will issue an order about how the pension shall be divided. That court order is called a qualified domestic relations order, or QDRO.
If you make an error, there could be harmful results. It is undoubtedly worth seeking the help of a competent and experienced lawyer to prepare the QDRO for you correctly.
Both you and your spouse may be able to keep your own pensions. But first, you need to be sure of the value of each pension. It would be best to discuss these options with a divorce lawyer at Shorb & Connor APC.
Usually, spousal support is tax-deductible for the paying spouse and taxable income for the supported spouse.
If you have a same-sex marriage, talk to a lawyer at Shorb & Connor APC for specific advice. Even if legal in California, same-sex marriages are not recognized by federal laws, so spousal support received from a divorce of a same-sex marriage is treated differently for federal tax purposes.
Federal laws have not changed to recognize domestic partners, meaning support payments paid to ex-domestic partners are classified differently from support payments made to a marriage’s ex-spouse. These laws can be very complicated given the overlap; thus, it’s best to speak with an experienced lawyer in this area.