Family Law FAQ
How are divorce proceedings started?
A divorce, which is often referred to as a dissolution of marriage, begins with one party (the petitioner) filing the summons and petition for dissolution of marriage (forms FL-110 and FL-100) with the California Family Law Court in the proper jurisdiction, paying the court filing fee. Thereafter, the petitioner has the summons and petition for dissolution along with a blank response form served on the other party (the respondent) by someone over 18 years old other than the petitioner. The respondent has 30 days from the date of service to file their response (form FL-120) to the petition with the Family Law Court, pay their court filing fee, and serve their response on the petitioner. If the parties have minor children, most Southern California Family Law Courts require that the parties each file and serve a Declaration Under Uniform Child Custody and Enforcement Act (form FL-105) along with the petition and response.
After filing for divorce, can I leave California with my children and cancel my spouse’s health insurance? Is there an automatic restraining order in effect?
Automatic temporary restraining orders that go into effect immediately after you file for divorce. These standard family law restraining orders are included on the summons (form FL-110 page 2) of every family law matter. These orders prohibit taking the minor children of the marriage out of California without the other parent’s written permission or a court order, cancelling insurance polices or changing beneficiaries, giving away property, transferring and selling property, or encumbering property without a court order. Further, you are required you to notify your spouse before any large expenditures, which will have to be accounted for. The other party will be bound by the automatic temporary restraining orders once he or she is served with the summons and petition.
What issues can the court decide in my divorce proceedings?
The court can decide all issues related to your marriage including ending your marriage, child custody and child visitation, child support, alimony or spousal support, division of all community property and debts, confirmation of all separate property and debts, division of pension plans, attorneys fees and costs, reimbursement and credits owed to a party or to the community, domestic violence restraining orders to prevent harassment or harm to a party or the parties’ children, interpretation and enforcement of pre-marital agreements and post-marital agreements, restoration of a parties’ former name, claims against a spouse for breach of their fiduciary duty owed to the other spouse, including failure to disclose assets during the divorce, claims against third parties holding assets of the community, and other related issues of the divorce.
On what grounds may I seek a divorce?
In California, a spouse does not have to “give” you permission to divorce and you do not have to prove “fault.” California is a no fault state meaning that no proof of fault is required to get divorced and your spouse cannot prevent you from obtaining a divorce. A divorce may be granted for either irreconcilable differences that have caused the breakdown of the marriage or for incurable insanity of a party. Most divorces are based on irreconcilable differences, which only require a party to claim that the marriage relationship has completely broken down.
What is a legal separation?
Legal separations are normally requested when a party desires resolution of the issues of the marriage such as custody, property division and support, but does not want to terminate the actual marital relationship. Legal separations are generally requested for religious or medical reasons whereby the legally separated spouse still can maintain the other spouse medical coverage. Both parties have to consent to a legal separation. Should a judgment of legal separation be entered by the court and the parties later desire a divorce, a new petition for dissolution of marriage will have to be filed.
On what grounds can I seek an annulment (nullity of marriage)?
A nullity of marriage may only be granted when the marriage is void or voidable under specific conditions set forth in the California Family Code. Briefly, a marriage is void for incest or bigamy and is voidable in cases of minority, unsound mind, physical incapacity, force, or fraud. The grounds for nullity must have existed at the time of the marriage and the grounds must be proven to the court. An annulment is not automatically granted. You can not obtain an annulment simply because of an extremely short marriage.
Most commonly, fraud is the basis for a voidable marriage, which requires a showing, that the consent to marry was obtained by fraud. This means that the false representations or concealment of a material fact constituting fraud must have directly effected the marital relationship. This can be difficult to prove and will require the party seeking annulment to prove the factual basis of the fraud. In addition, there are certain timeframes by which to bring a nullity of marriage based upon fraud.
Because the issues surrounding an annulment are unusually complex and normally have certain timeframes by which to bring your petition (statute of limitations), you should not delay in seeking legal advise from an attorney regarding pursuing an annulment. Contact The Law Offices of Gregory Cabo »
I was not married to the other parent of my child. How can I assert my legal rights regarding our child including custody, visitation and support?
The California Family Law Court has jurisdiction to hear petitions to establish a parent or child relationship (California Judicial Counsel Form FL-200). In such proceedings, the issues of paternity, custody and visitation, and child support are decided. Typical scenarios involve a parent seeking child support or a parent seeking visitation of the mutual child or children of the parties. Child support actions can also be commenced by the California Department of Child Support Services.
There are certain strict jurisdictional and procedural requirements in bringing these proceedings. You should not delay in seeking legal advise from an attorney regarding your parental rights. Contact us »
Are there residency requirements for filing for divorce in California?
A judgment for divorce cannot be entered unless one of the parties to the marriage was a resident of California for at least 6 months and a residence of the county in which the petition for dissolution was filed for at least 3 months before the filing of the petition for dissolution. You cannot waive this requirement. For example if you moved from Los Angeles County to Orange County and wanted to immediately file for divorce in Orange County, you could not until after you have met the 3 month residency requirement. However, your move would not prevent you from immediately filing for divorce in Los Angeles. There is no statutory residency requirement in order to file for a legal separation. A judgment for legal separation requires both spouse’s consent to the legal separation.
How soon can I be divorced in California i.e. what is the “6 month rule” I hear about?
The earliest that a parties’ marital status can be terminated is 6 months from the date that the other party is served with the summons and petition for dissolution of marriage. The passage of time alone is not sufficient as the marital status does not automatically terminate at the 6 month mark. A judgment for dissolution has to be entered by the court. Should other issues of the marriage take longer to resolve than six months, the court, upon application by a party to “bifurcate” the issues, may terminate the marital status and reserve jurisdiction over all other remaining issues in the marriage to be decided at a later date.
A judgment for dissolution of marriage which has been agreed to by the parties, commonly referred to as a stipulated judgment, can be entered by the court before the passage of six months but the marital status will not terminate until after 6 months from the date of service of the respondent. The date of termination of the marital status will be specified on the notice of entry of judgment and on the judgment for dissolution of marriage.
I need custody and visitation orders, support, attorneys’ fees or other orders before trial. What can I do?
Upon application (California Judicial Counsel form FL-300), the court may make orders on a temporary (pendente-lite) basis by filing an order to show cause or motion seeking temporary relief. The court can decide issues of child custody and visitation, child support, spousal support, provisional exclusive use of an automobile or residence, turn-over of community funds, payment of certain debt, restraining orders and requests for attorneys’ fees and costs to afford legal representation, all on a temporary basis. The court generally will not divide community property at hearings on temporary orders. Matters set on an expedited basis (ex-parte) require a showing of an emergency, immediate harm or immediate threat of harm to a child, person or property (including depletion of community bank accounts), and can be set for hearing within one court day. Financial issues including temporary support or attorneys fees are almost never considered an emergency but immediate payment of some expenses can be ordered on an expedited basis. Hearings on non-emergency issues are normally set for hearing within 21 to 45 days of filing the application, depending on the court’s availability. The object of temporary orders can be to preserve the status quo and “keep the peace” or to provide support pending trial on the issues. Temporary orders typically last until modified by further court order or until entry of final judgment.
How does the court decide child custody and visitation?
California recognizes two types of custody: Legal custody and physical custody. Either type of custody may be awarded to one or both parents ( i.e. joint custody). Physical custody usually refers to who the child will reside with and legal custody means who has the right and responsibility to make decisions regarding the health, education, and welfare of the child.
In deciding child custody, the court is required to make an order determining which custodial arrangement is in the child or children’s best interest. The California Family Code sets forth guidelines for the court to follow which include providing the children with frequent and continuing contact with both parents after divorce, and to encourage parents to share the rights and responsibilities of child rearing, unless such frequent contact would not be in the child’s best interests. The court must ensure each child’s health safety and welfare and will make orders on that basis. The court cannot award custody solely based on gender of the parent.
In making its decision on custodial issues, the court can consider evidence from a court appointed expert or child custody investigations done through court services. In some situations, the court may consider the preference of the child if the child is of sufficient age and can articulate an intelligent basis for his or her preference. In certain cases, the court will appoint an attorney (minor’s counsel) to represent the child or children to protect their interests.
Child custody and visitation matters are extremely complex. You should not delay in seeking legal advise from an attorney regarding your parental rights. Contact The Law Offices of Gregory Cabo to set up an appointment »
The court has ordered me to go to mediation before my child custody or child visitation hearing. Why do I have to go to mediation?
In California, mediation is required before any contested hearing on child custody or child visitation. Failure to attend mediation may be a basis to prevent the court from considering your position at the hearing.
Mediation of custody and visitation issues attempts to reduce the acrimony and expense of going to hearing on the matter. Often times, the parents reaching an agreement is much better for the children and parties than the judge ordering how, when and to what extent you and the other party will parent.
In Orange County and Los Angeles County, the mediator does not normally make a custody recommendation to the judge. However, in Riverside County and others, the mediator can make a recommendation of custody and visitation to the judge.
It is always advisable to obtain legal advise to prepare you for court ordered mediation to know how to present an appropriate parenting plan. For an appointment, contact The Law Offices of Gregory Cabo »
How does the court calculate child support?
The California Family Code provides a mathematical basis by which to calculate child support commonly referred to as the “California Uniform Guidelines for Child Support.” A computer program is typically utilized to arrive at “Guideline Support” numbers.
The mathematical basis to calculate support considers a number of factors, the most relevant being the number of children, the parties’ respective income after legitimate deductions, and the custodial timeshare that each parent shares. In arriving at gross income, the court considers wages, overtime, bonuses, commissions, rental income, disability income, social security income, and second job income. In certain circumstances, the court can also impute an income to parent who is refusing to work.
The court also considers health care and day care expenses of the parties, their tax filing status, child support paid for children of another relationship and extreme hardship cases. While calculating child support may be relatively straight forward in cases where the parties income is readily identifiable on their form W-2, determining income can be extremely complex in cases with a self-employed party with multiple businesses or “hidden” sources of income. In these cases, it is often necessary to hire a forensic accountant to determine the parties’ cash flow available for support. For an appointment to assess your child support matter, contact The Law Offices of Gregory Cabo »
How does the court determine spousal support?
The goal of spousal support is to financially assist the party in need for a reasonable time or until the party becomes self-supporting. On a provisional basis, the court can order temporary spousal support in any amount necessary for support of the other spouse provided there exists a need for support and an ability to pay support.
In determining a long term spousal support order, the court is required to consider a number of factors enumerated in California Family Code section 4320, including, the marital standard of living, the length of the marriage, the earning capacity of the parties including consideration of ability to be gainfully employed without interfering with the interests of dependent children, the assets of the parties, the needs of the supported party and ability of the supporting party to pay support, the extent to which the supported party contributed to the supporting party’s education and training, each parties’ age and health, documented evidence of domestic violence, the immediate and specific tax consequences to each party, the balance of the hardships, and any other factors that the court deems just and equitable. The court cannot use computer guideline calculations for long-term spousal support unless the both parties agree. Like with attorneys’ fee orders, California law vests a large degree of discretion in judges who decide spousal support, and therefore it is difficult or impossible to predict the amount of spousal support the court will order.
Because the circumstances surrounding calculation and payment of spousal support are usually complex and may have adverse tax consequences, you should seek legal advise from an attorney to assess your spousal support issues. Contact The Law Offices of Gregory Cabo »
How much will it cost to hire an attorney to handle my family law matter?
Costs of any family law matter vary greatly depending on your personal situation as well as the complexity and number of the issues involved. All family law matters handled by this law office will require a retainer agreement and retainer fee paid in advance. The particulars of your representation and billing arrangements will be explained to you in the written retainer agreement and you will receive a copy of the agreement. Time spent on your matter will be billed at an hourly rate. During your consultation and through out your case, we will discuss the most cost effective way to proceed with your matter.
Will my spouse have to pay my attorneys’ fees and costs for my divorce?
The court may order a party to pay a portion or all of the others attorneys’ fees and costs at any time during the divorce proceedings or afterwards, based on the relative circumstances of the parties. The attorney fee award is typically based on a determination of an ability to pay and consideration of the parties’ needs, respective incomes, and relative circumstances (which are similar to the considerations for long-term spousal support). It is rare for a court to order that all of the attorneys’ fees and costs be paid by the other party.
In addition to the aforementioned need based attorneys’ fees and costs, the Family Code allows for sanctions against the other party in the form of attorneys’ fees and costs which have been incurred as a result of a party’s conduct which furthers litigation, frustrates the policy of the law to promote settlement and encourage cooperation or otherwise increases costs of litigation by bad faith actions or tactics.
The goal in awarding attorneys’ fees and costs is to attempt to ensure that each party has access to legal representation to preserve all of his or her rights. However, because California law vests a large degree of discretion in judges who decide attorneys fee matters, and it is difficult if not impossible to predict what a court may order one party to pay to the other party in the way of attorneys fees and costs.
Call The Law Offices of Gregory Cabo to schedule an appointment to discuss your personal situation and your individual goals »
How does the court divide community property?
Generally, all property including earnings acquired during the marriage is community property. Property acquired before marriage, after the date of separation, or by gift or inheritance is the separate property of the acquiring spouse. Community property is divided equally unless the parties agree otherwise. Separate property is awarded to the acquiring party. While this may appear simple, complications arise when a spouse uses community property to benefit his or her separate property. For example community earnings used to pay for the mortgage on a separate property home, or separate property to partially fund the purchase of a community asset. In these examples there may be a community interest created in the separate property asset or a right of reimbursement to the community. Because the issues surrounding property division may be complex, you should seek legal advise from an attorney to assess your property rights before you make any agreement or go to court. Contact The Law Offices of Gregory Cabo »
Do I have to go to court for an uncontested divorce?
Generally, if the parties come to an agreement and cooperate with each other, after the required financial disclosures are exchanged between the parties, the marital settlement agreement or stipulated judgment can be submitted to the court to finalize your divorce without you ever appearing in court.
What is a QDRO?
A QDRO or qualified domestic relations order is a Judgment or other order that divides pension or other retirement benefits between the parties.
What financial information do I have to disclose to my spouse during our divorce?
Married persons have a fiduciary duty to one another of full, complete, and continuing disclosure of all information concerning both separate and community assets. California law requires this duty of disclosure protect assets and to prevent their dissipation; to ensure fair and adequate child and spousal support orders; to achieve fair division of community assets and debts; and to reduce litigation and related costs by encouraging full and mutual exchange of information.
A spousal fiduciary duty exists throughout the marriage and until an asset is actually distributed by court order and until a “permanent” spousal support, child support, and attorney fee order is made. The parties comply with their fiduciary obligations by exchanging their financial disclosures at least twice during the divorce proceedings, and are required to augment and update their disclosures whenever there is any change. Non-compliance with these obligations may result in the court setting aside a Judgment, sanctioning the offending party, or awarding a non-disclosed asset to the complying party.
Disclosure requirements and litigation of spousal breech of fiduciary duties are extremely complex. You should seek legal advise from an attorney regarding your disclosure obligations. For an appointment, contact The Law Offices of Gregory Cabo »
I think my spouse is lying to me about our finances. How do I obtain the necessary financial information or other information I need in my divorce case?
Other than through the required financial disclosure, there are other methods to obtain information directly from the other party. Your attorney can conduct “discovery” including taking depositions or the formal questioning of your spouse (or other witnesses) under oath before the trial; Your attorney can send Interrogatories or written questions to your spouse that require a written response under oath; and your attorney can request inspection demands requiring your spouse to turn over important documents in their possession, custody or control. Should a party not comply with discovery, they can be monetarily sanctioned, and if persistent, they can ultimately be prevented from presenting their case in court.
There are other ways to obtain financial information without relying on your spouse. During a divorce proceeding, bank account or other financial account information can be subpoenaed directly from the institution by your attorney requiring that the information be provided to your attorney’s office or at court.
Other issues in your case may require physical and mental examinations of the other party or vocational assessment of the other party to determine his or her ability to work and earning capacity. A vocational assessment can be especially useful when a major issue in your case is spousal support and the other party is refusing to work.
Conducting discovery and complying with discovery rules are procedurally complex. You should seek legal advise from an attorney regarding your discovery obligations. For an appointment, contact The Law Offices of Gregory Cabo »
I have a family court judgment, can I modify it?
Generally, judgments regarding child custody, child visitation, and child support, can be modified provided that there is a legal basis to modify the judgment. Spousal support is generally modifiable, except in circumstances where the parties agree otherwise. Modification usually requires a “change of circumstances,” such as when a party just lost their job, or a change in the child’s best interests. The court may have also “reserved jurisdiction” on certain issues, which can be addressed or modified after judgment. Other issues resolved in the judgment such as property division are usually not modifiable.
Modifying a court judgment can be procedurally difficult and legally complex and may have certain timeframes in which to bring your application. You should not delay in seeking legal advise from an attorney regarding filing an application to modify a judgment. Contact The Law Offices of Gregory Cabo »
I have a judgment. How do I enforce its terms?
There are numerous ways to enforce California divorce judgments, from wage assignments, wage garnishments, contempt proceedings, by writ of execution, bank account levies, required deposits to secure child support, health insurance coverage assignments, and recording abstracts of judgments in the county recorders office. Other avenues of enforcement may also be available solely through the California Department of Child Support Services such as license suspension and tax return intercepts. Because judgments can be procedurally difficult to enforce, you should seek legal advise from an attorney regarding your enforcement options. Contact The Law Offices of Gregory Cabo »
Domestic Violence Restraining Orders
What is a restraining order?
A restraining under the Domestic Violence Prevention Act is a court order protecting individuals from further acts of abuse. Abuse means any of the following: Intentionally or recklessly to cause or attempt to cause bodily injury; Sexual assault; To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another; or engaging in any behavior that has been or could be legally prohibited such as molesting, attacking, striking, stalking, threatening, battering, harassing, telephoning, including, but not limited to, annoying telephone calls, destroying personal property of the another, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party.
If you are in an emergency involving domestic violence, immediately contact the police by calling 911. If there is probable cause, the police can obtain an immediate “emergency protective order” protecting you for a few days until you can apply for a permanent restraining order with the court.
What can a restraining order provide to the victim of domestic violence?
A restraining under the Domestic Violence Prevention Act can restrain the abuser from further acts of abuse towards the victim and other members of the household; it can exclude the abuser from family residence and it can prevent the abuser from coming within a specified distance (usually 100 yards) of the residence, school, business, automobile or place of employment of the victim and their family. During restraining order matters, the court can also decide issues of child custody and visitation, child support, spousal support, attorney’s fees, and possession and control of community property and animals. The court can also order the abuser to pay restitution, turn in or sell fire arms in their possession, pay specified debts and attend counseling.
Issues regarding pursuing or defending against restraining orders can be complex. For an appointment, contact The Law Offices of Gregory Cabo »