Divorce FAQ

•  How long does it take to get a divorce?
• What is the process for obtaining a divorce?
• If I have only been married for a certain amount of time, can I get an annulment instead of a divorce? 
• Can I obtain child custody orders in a divorce case?
• What is mediation?
• How much do divorce cases usually cost?
• How do I pick the right divorce attorney? 
• How is spousal support calculated?
• What is a Preliminary Declaration of Disclosure? 
• How does the Court divide debt?
• What is community property and separate property?
• What is the date of separation? 
• What is the process for an uncontested divorce case?
• Are high asset divorce cases treated differently? 
• My spouse filed for divorce – do I have to move out of our family residence?
• My spouse is self-employed and alleges minimal income – what do I do? 
• How does the court divide furniture and furnishings?
• Are divorce records public?
• Does your firm handle military divorce cases?
• Am I really married?
• What if I was married in another state or country?
• Can the court make my spouse pay for my attorney fees?

How long does it take to get a divorce?

Generally, a divorce can be finalized as soon the parties exchange their declarations of disclosure and reach an agreement on all the terms of their divorce, which must be reduced to writing and then submitted to the court for filing and signature by the judicial officer.  However, in California there is a statutory, mandatory 6 month wait period which must elapse for the parties’ status of married persons is terminated.  This six month wait period begins after the respondent is served with the petition for dissolution.  In some case, for example if a case involves acrimonious child custody proceedings, complex division of asset and debts issues, and the like, the case may take longer to resolve.  In any case, the divorce is not legally finalized until there is a final judgment of dissolution issued by the court.

 What is the process for obtaining a divorce? 

Divorce proceedings are often complex and require the resolution of many legal issues, such as characterizing, valuing and dividing property, determining child custody and visitation and calculating child and spousal support. Every person facing a divorce is confronted with a unique set of emotional and financial challenges. As knowledgeable and experienced Orange County divorce lawyers, we understand these challenges.  Our lawyers will help you to identify the issues in your case, explain the options available to you and work with you to meet your goals. 

 If I have only been married for a certain amount of time, can I get an annulment instead of a divorce?  (Include a link to a PDF of the petition so client can see basis for divorce/annulment).

Under California law, there are certain, limited circumstances in which a party can file for an annulment rather than a divorce.  These circumstances include fraud or force, undue influence, lack of capacity, bigamy, incest or physically incapability.  Our experienced annulment attorneys can explain your options and assist you in obtaining an annulment if such a cause of action arises.  However, there is currently no case law that suggests that the mere lack of passage of time is grounds for nullity. 

 Can I obtain child custody orders in a divorce case?

A divorce proceeding will resolve issues such as child custody and visitation, the division of assets and debts and child and spousal support.  If there are children that were born or adopted while you and your spouse were married, or born within a certain number of days following separation, you can obtain a custody order with the final judgment of dissolution in your case.

 What is mediation?

 When family law litigants discuss “mediation”, they generally mean one of two things.  First, mediation is a form of “alternative dispute resolution”, which means that someone other than a judge or commissioner is involved in trying to resolve an entire case.  Mediators are excellent resources for family law litigants because an entire case may be resolved through the mediation process.  The second meaning of “mediation” as it pertains to family law comes up in child custody matters.  When child custody is at issue, the child’s parents (or other persons claiming to have custodial rights who have been joined in the case) must attend Family Court Services (FCS) mediation.  Mediation is designed to assist the parents in developing a plan for how they will share and divide their parenting responsibilities.  This plan is called a parenting plan, a time share plan or a stipulation regarding child custody and visitation. In Orange County, mediation proceedings between the parents are confidential, unlike in other counties were the mediator may prepare a recommendation for the court based on the mediation session.

 How much do divorce cases usually cost?

There are court filing fees that must be paid for every divorce case.  The initial filing fee is $355 as well as a $40 filing fee for additional matters in your case.  However, the exact cost for a divorce case varies depending on the circumstances and complexity of your case.  For example, divorces involving significant assets may require additional costs associated with conducting discovery.  Divorces involving children may also require additional costs, particularly where the parties are unable to agree on a custody and visitation arrangement. The cost of your case will also depend on whether you choose to hire an attorney.  Our attorneys can explain what you might expect to pay and are committed to providing you with experienced, diligent representation in the most cost-effective manner possible. 

 How do I pick the right divorce attorney?

In selecting the right attorney, there are several different factors you might consider.  First, you should select an attorney within the geographic area in which you live or plan to file.  This can help you to avoid paying unnecessary travel expenses.  Second, you should consider factors such as the attorney’s level of experience as well as whether the attorney regularly practices family law.  Because every area of law presents unique challenges, attorneys who do not regularly practice family law may not be familiar with some of the procedures and complexities that accompany a family law case. You may also consider whether the attorney is a Certified Family Law Specialist, or CFLS, which is a reliable indicator that the attorney has both experience and knowledge in practicing family law.  Lastly, you may want to interview several different attorneys to determine who you think can best suit your needs as well as who can offer you the best rate in exchange for their experience.

 How is spousal support calculated?

There are two kinds of spousal support, temporary and permanent.  Temporary spousal support may be ordered during the pendency of a case and is based on the requesting party’s need for financial support and the other party’s ability to pay.  The court often relies on a computer program to calculate a reasonable temporary spousal support figure based on the parties’ respective net incomes and various expenses.  If one party does not work, the court may order that person to do job contacts, and may impute income to that person based on that party’s ability and opportunity to work.  Permanent spousal support is ordered at the end of a divorce or dissolution matter, and California law outlines a number of different factors that the court must consider in determining spousal support, including the following:

 -length of the marriage;

-parties’ earning ability;

-parties’ ability to pay;

-ability of the supported party to seek employment without interfering with the interest of the children;

-parties’ needs;

-age and health of the parties

-marital standard of living;

-parties’ educations;

-taxes;

-whether there has been domestic violence; and

-any other factors that the court determines are equitable and just.

The Court is not allowed to rely on the assistance of a computer program to figure out a reasonable permanent spousal support figure.  Your attorney can assist you in negotiating favorable terms with your spouse as well as discuss how much you might expect to pay based on the specific circumstances in your case.

 What is a Preliminary Declaration of Disclosure? 

In family law, the parties are required to complete and exchange Declarations of Disclosure, or DOD’s.  There are two required DOD’s: preliminary and final.  The preliminary disclosures must be exchanged after the respondent is served with the petition for dissolution.  To complete the disclosures, you will prepare two pre-printed forms called an Income and Expense Declaration and Schedule of Assets and Debts.  The information you provide on these forms is important to your dissolution proceeding and both are taken seriously by the court.  Specifically, the court uses the parties’ Income and Expense Declarations in calculating child and spousal support, for example.  The forms must be completed fully and accurately, and must be updated without demand from the other party in the event of a change in information, and are signed under penalty of perjury.  Our attorneys can assist you to accurately and completely fill out these forms to ensure that you dissolution case proceeds smoothly.  We can also assist in getting to the truth if your spouse submits false, misleading or incomplete disclosures. 

How does the Court divide debt?

Under California law, all property acquired during marriage is generally divided equally upon dissolution.  This includes assets as well as debts.  There are some statutory provisions which provide for an unequal distribution of debt under certain circumstances.  For example, if one spouse incurred student loans during the course of a marriage, the debt on the student loan will generally be assigned to the debtor spouse, rather than divided equally between the spouses. Our attorneys have experience in handling divorces with various types of marital assets and debts.  We can explain your rights and obligations regarding marital debt and assist you in obtaining an equitable division of debt in your case. 

What is community property and separate property? 

California law defines community property as all property acquired during marriage, except property acquired by gift, bequest, inheritance or devise.  Separate property is property that was acquired before marriage and after separation, or by gift, bequest, inheritance or devise.  For the purposes of characterizing separate and community property, you will need to know the date you and your spouse were married, the date you and your spouse separated and the date the a particular item of property was acquired.  California law regarding the characterization of property can be complex and confusing.  Our attorneys have experience in characterizing and dividing community and separate property.  We can explain your rights and obligations regarding marital property and work with you to protect your entitlement to your property. 

What is the date of separation?

The date of separation is a legal term and carries with it many important consequences.  There are two elements for the date of separation, which must be shown to the court before that date is recognized.  First, married persons must have a physical separation from each other, and second, one party must subjectively determine that the marriage is over and evidence their determination in an objective manner.  This means that one party must want the marriage to end and then do something affirmatively to show that they want to end the marriage.  The legal consequence of the date of separation, generally, is that the parties’ financial ties to one another cease on the date of separation.  All property, income, debts and so forth received by a party after the date of separation are characterized as that person’s separate property. 

What is the process for an uncontested divorce case?

The process for obtaining an uncontested divorce begins by filing a petition for dissolution.  In an uncontested divorce, the issues in the dissolution are resolved by an agreement, or stipulation, between the parties outside of court.  Most agreements between parties must be filed and approved by a judge or commissioner of the Family Court.  There are many legal requirements that must be met at the time an agreement is submitted to the Family Court for approval.  If the correct language is not used in the agreement, the Court Clerk may reject the agreement or worse, there will be negative legal consequences to one or both parties.  The attorneys at Wilkinson & Finkbeiner, LLP are familiar with these requirements.  In addition to the requirements set forth in the California Family Code and Local Rules, there are many other considerations that our attorneys contemplate in drafting agreements and stipulations within uncontested actions.

Are high asset divorce cases treated differently?

High asset divorces follow the same procedure as a typical divorce.  However, because a high asset divorce entails a lot of real or personal property, these divorces tend to be more complex and may take more time to resolve.  Often outside experts, including financial planners, forensic tax accountants and analysts, and tax attorneys are consulted for these complicated cases.  Our experienced high asset divorce attorneys can inform you of your legal options to protect your interest in your property and assist you in navigating the law to reach your goals.

My spouse filed for divorce – do I have to move out of our family residence?

Unless there is an order to vacate a residence based on the perpetration of domestic violence, there is no typically no legal requirement that a person move out of the family or marital residence because their spouse filed for divorce.  The decision to move out may have significant implications later in your divorce proceeding, regarding issues such as child custody and visitation as well as spousal support.  It is very important that you contact a family law attorney so you understand your legal rights and obligations before making the decision to vacate your home.

My spouse is self-employed and alleges minimal income – what do I do? 

Generally, the court will use information regarding your spouse’s income based on the information provided on his or her Income and Expense Declaration.  Your spouse is required to sign the Income and Expense Declaration under penalty of perjury.  This means that the court can impose penalties and sanctions for providing false information on the form.  If you believe that your spouse earns more than he or she alleges on this form, there are many discovery tools you can use to investigate his or her true income.  Our experienced child and spousal support attorneys can assist you in obtaining additional information regarding your spouse’s income to protect your right to support. 

How does the court divide furniture and furnishings?

The manner in which the court will divide furniture and furnishings often depends on the characterization of the property as either community or separate.  The court may also divide the property “in kind”, or order an offset to one spouse or the other depending on which spouse received the windfall of furniture and furnishings.  In some cases, the court can appoint either a special master or expert to value property.  However, many spouses are able to reach an agreement regarding the division of furniture and furnishings. 

Are divorce records public?

Most documents stemming from a divorce proceeding are public record.  This means that the documents are accessible to anyone who requests the case file from the court.  A party to a divorce proceeding may also request that the court seal the case file, which requires the requesting party to demonstrate a number of factors, including an interest in confidentiality that overrides public access to the file and that no less restrictive means of protecting that interest exists.  In short, it is generally difficult to seal divorce files.  One alternative many litigants use to make sure that certain documents are not left in the court file is to “lodge” the documents with the court for a certain hearing only.  Such documents are then returned to the litigant.  Finally, parties may also file a confidential marital settlement agreement under certain circumstances. 

Does your firm handle military divorce cases?

Our firm handles cases from people living throughout Orange County, which is home to many military personnel and their families.  Obtaining a divorce where one or both spouses are members of the armed forces can present issues and challenges that differ from traditional family law divorce cases.  Most commonly, issues arise in regard to serving members of the armed forces since they deploy overseas and dividing military retirement benefits.  The attorneys at Wilkinson & Finkbeiner, LLP have experience handling military divorces and can work with you to protect your rights.

Am I really married?

California law has specific requirements that must be fulfilled to have a valid marriage. Specifically, you must meet the following requirements: 1) Have a marriage license; 2) participate in a witnessed ceremony; 3) publicly record the marriage license; and 4) both parties must have legal capacity to marry.   Legal capacity to marry generally requires that each spouse be over the age of 18.  California does not recognize common law marriages; however, there may be other legal causes of action available to a person who resided with their significant other, such as a “putative spouse” action or “Marvin” action.

What if I was married in another state or country?

Many states, including California, are generally required to recognize valid marriages from other states and countries as a matter of full faith and credit, or comity.  This means that if your marriage is valid in the state or county in which you were married, it will be recognized as a valid marriage in California. 

Can the court make my spouse pay for my attorney fees?

California law provides for the award of attorney’s fees in certain circumstances.  First, in dissolution proceedings, California law seeks to ensure that each party has equal access to legal representation to preserve each party’s rights.  In determining whether to award attorney’s fees, the court considers the incomes and needs of each party as well as each party’s ability to pay.  Second, a party may be entitled to attorney’s fees where the other party’s conduct in a case frustrates California public policy regarding promoting settlements and encouraging cooperation between the parties and their attorneys.  Our attorneys are skilled at recognizing situations in which you may be entitled to attorney’s fees from the opposing party in your case.  We can assist you in navigating this area of law and protecting your rights.