Frequently Asked Questions / Answers Regarding
Family Law
All questions below are answered according to California law:
- Q: What is community property?
- A: Community property means everything that a husband and wife own together, which generally includes money earned during the marriage and anything bought or acquired with the money that was earned during the marriage. California is a community property state, which means that each spouse in a marriage has an equal interest in everything they own together, unless expressly titled otherwise by both parties.
. - Q: What is separate property?
- A: Separate property means everything a husband and wife owns separately, which generally includes anything owned prior to their marriage to each other, anything earned or received after the date of their separation from each other, or anything received by either spouse as a gift or inheritance at any time.
(Note: gifts of “substantial” value given during the marriage can be considered community property.) Just because a spouse places title of an asset in his or her sole name, does not make it the separate property of that spouse if it was purchased or acquired with community property money/earnings.
. - Q: What is the community liable for?
- A: The community is generally liable for any debts that a husband and wife own together, which means any money that is still owed on any debts that either spouse took on during the marriage (even if the other spouse did not know about it in many circumstances). So it is very important for both spouses to continue to be aware of what their respective assets and debts are at all times during the marriage. Communication with each other is merely being a responsible partner.
. - Q: What is the difference between a Legal Separation and a Dissolution?
- A: A Legal Separation does not terminate a marriage; however it can settle financial responsibilities between spouses and to any minor children. A Petition for Legal Separation is typically filed when either (1) spouses want to continue living together, but want to separate their finances; or (2) one spouse may need continued health insurance from the other spouse’s employer; or (3) simply when one spouse is not yet ready to file for divorce, but either needs to establish financial responsibilities and/or a temporary parenting plan or feels the need to send a message to the other spouse that the relationship needs serious help.
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A Dissolution (the current term for divorce) is filed to ultimately terminate a marriage between two people, which can be accomplished in as early as six (6) months or can take years depending upon the parties’ actions and/or the Court’s calendar. It is accomplished either by some form of settlement agreement or a trial, where a judge reviews the evidence and decides how the parties will divide their community assets and debts, what parenting plan is in the minor children’s best interests, and/or what is an appropriate amount of child and/or spousal support to be paid.
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A Petition for Legal Separation can be amended to a Petition for Dissolution as long as no Judgment of Legal Separation has been obtained. If a Judgment of Legal Separation is obtained, then the legal separation case is complete and a new case will have to be filed if either or both parties wish to obtain a divorce later on.
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Alternatively, spouses may file a Joint Petition for Summary Dissolution if they have been married less than five (5) years, do not have any minor children, do not own any real property, own less than $25,000 in community assets, have less than $25,000 in separate property assets and less than $10,000 in community debts. There are a few other requirements to file this type of petition, but a Petition for Summary Dissolution is essentially signed and filed by both spouses and unless an objection is filed by either spouse during the six (6) month waiting period, either or both spouses may file a Request for Entry of Judgment of Summary Dissolution six (6) months after the petition is filed and obtain their divorce without the need for any court appearance or further submission of documentation. (By filing for divorce as a summary dissolution, both parties waive their right to a trial as well as their right to an appeal of the Judgment.)
. - Q: How long does it take to get a divorce?
- A: The Court does not have the ability to grant a divorce until six (6) months after the initial Petition for Dissolution is filed with the Court and served on the other spouse. Accordingly, spouses who are divorcing have the option to either (1) schedule a trial date (assuming all discovery is completed and the spouses are ready for trial) or (2) reach an agreement as to the terms of their divorce, including all of said terms in a Judgment of Dissolution and all accompanying forms. These documents can be filed with and entered by the Court prior to the six (6) month date, but the actual divorce will not be final until that six (6) month date.
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Otherwise, the Court will not do anything until it is “told” to do so, i.e. one or both spouses request a trial date and/or submit a Judgment of Dissolution and all appropriate forms to the Court for filing. As a result, it can take much more than six (6) months for a divorce to be completed depending upon the actions of the spouses and/or their respective attorneys.
. - Q: What if my spouse is cheating on me; does this make a difference as to how our assets and debts will be divided or our ultimate custody arrangement?
- A: While each spouse has an obligation of mutual respect, fidelity and support to each other by virtue of signing their marriage license, California is a “no fault” state, which means that neither spouse has to prove infidelity or anything else to obtain a divorce. As a result, the Courts generally do not use one spouse’s infidelity to divide the assets or debts in favor of the other spouse or to alter time with the children in order to punish the “cheating” spouse.
. - Q: Does it matter who files the action for divorce first?
- A: It does not matter who files the Petition for Legal Separation or Dissolution first, except that the first spouse to file will have the choice of either filing the action in the Central District (downtown Los Angeles) or their respective local district. Otherwise, one spouse is considered the “Petitioner” and the other spouse is considered the “Respondent.” Remember, California is a “no fault” state.
. - Q: What if I have a child or children with another person, but never married that person?
- A: If you have a child or children with someone, but never married each other and need court orders and/or assistance with a parenting plan and/or support, you may file a Petition to Establish Paternal Relationship. This type of action establishes the existence of a parent-child relationship between unmarried parents and provides the ability to settle support obligations to the minor child(ren) as well as parental rights. A Petition to Establish Paternal Relationship must be filed for an unmarried parent to establish any parental rights and/or responsibilities to a biological minor child.
. - Q: If I have to terminate a relationship (married or unmarried), what are my options as far as having to go to Court?
- A: Most importantly, for the Court to have the ability to establish and/or enforce any orders regarding support, parenting and/or the distribution of assets and debts, an action must be filed with the Court by way of filing a Summons and Petition and any other required forms.
- One option for parties who are terminating their relationship to obtain specific court orders and/or an official termination of their marriage is by litigation. So in addition to filing the initial and responsive papers, one or both parties may opt to schedule one or various hearings and/or a trial date so as to allow a Judge to oversee their proceedings and make their decisions. Although many people think that they will have their “day in court,” often times decisions are made solely on the documents filed by a party. In addition, litigating any type of family law action means that anything contained in the court file is public record. This process, while effective in some circumstances, (1) can also be time-consuming, (2) can increase conflict, (3) can decrease either or both party’s control over their personal issues, (4) can be costly, and (5) a person in a black robe is making the decisions for you.
. - Another option for parties terminating their relationship is by settlement, which is where the parties in some form or another reach the terms of their separation by way of an agreement, merely having to submit the forms establishing this agreement to the Court for filing and execution. A settlement can certainly be (1) less public since most of the parties’ issues are dealt with outside of court documents, (2) faster, (3) less costly, (4) can decrease conflict between the parties, (5) increase the parties’ control over their personal issues, and (6) it certainly can provide better communication between the parties in the long run.
Under the umbrella of settlement are the following options:
(a) Mediation: This process is when the parties reach a consensual settlement with the assistance of a neutral mediator. If an attorney, the mediator does not represent either party and cannot legally advise either party. Together, however, the mediator and both parties meet and discuss their respective issues, determine how the assets and debts should be divided, establish a feasible parenting plan and agree upon an appropriate amount of support. The parties can use attorneys to consult with through the mediation process and either of their respective attorneys or the mediator can prepare and file the necessary paperwork with the Court.
(b) Collaborative Law/Divorce: This is a fairly new way of obtaining a divorce in California wherein each party may hire an attorney to consult with and to represent their respective interests; however, the parties and their attorneys all sign an agreement that neither party’s attorney will appear in court on their behalf. In essence, everyone is committing to the settlement process from the beginning and after the initial procedural tasks are completed, the parties schedule four-way settlement conferences with their attorneys to assess their respective needs and issues and to collaboratively determine the best way for this family to separate.
In the Collaborative Law model, there are also a team of professionals available to further assist the parties in this process, such as mental health coaches who meet with the parties individually and possibly in four-way conferences and/or with their attorneys to help coach the parties through the collaborative process by dealing with any emotional issues that arise, as they arise.
There are also child specialists available to represent the child(ren)’s best interests, if necessary.
In addition, joint accountants and/or financial planners are available to assist the parties with a determination of the most productive way to divide the parties’ assets and debts, what, if any, support is necessary, and what future financial planning may be necessary to place both parties and any minor children in the best possible financial position within the framework of the community estate and the parties’ respective financial abilities.
Although the number of professionals involved may seem overwhelming and/or costly, handling a divorce or other type of family law matter in this manner can easily cost less than litigating a divorce, which can require a tremendous amount of preparation and court time. In addition, the additional professionals can provide a much more emotionally and financially stable way to deal with what can be one of the most difficult times in a person’s and/or family’s life.
For more information on Collaborative Law or Collaborative Divorce or to obtain a list of collaborative attorneys and other professionals located in the South Bay area, contact Jane Euler or please visit www.abetterdivorce.com or call (310) 767-9898.
(c) Attorney Representation Via Settlement: Certainly parties can retain attorneys who can attempt to negotiate a settlement with each other on behalf of their clients and simply prepare and submit the appropriate paperwork to the Court when completed.
Ultimately, the parties’ / family’s needs should determine which process will address their respective best interests.
- Q: How are attorneys’ fees and costs paid?
- A: Ms. Euler charges an hourly rate which can be quoted when you call her office. Her hourly rate is applied against a retainer that is deposited into her attorney-client trust account upon execution of a retainer agreement. The amount of the retainer is determined by an estimate of how much work and what specific costs will be necessary to at least initiate the actions required by the client’s needs.
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Detailed statements are sent by Ms. Euler’s office approximately twice per month and the client will be able to see how much work has been done, how much time has been spent on this work, what costs have been paid, how much has been deducted from the retainer to pay for the fees and costs incurred through the dates of work included in each statement, and what the remaining balance is in the attorney-client trust account. If the retainer dips below a certain amount and more work is required, the client will be asked to replenish the retainer in an amount that is sufficient to cover the upcoming additional work.
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