Frequently Asked Questions
How does the divorce process get started? The divorce process begins when one party files a Petition and Summons with the court. These documents are then served on the other party. This initial step need not be confrontational, and parties will often simply accept service of a Petition by mail. Once the other party has been served, they then have 30 days in which to file and serve their Response. At this time, the parties will then begin to work on their Declarations of Disclosure. Under California law, the parties in a divorce proceeding must give each other full and complete disclosure of their financial picture. The Declaration of Disclosure is the way in which parties advise each other of this financial picture and have a point from which they can move forward in resolving all issues.
How long will my divorce take? When one party files and serves their Petition and Summons on the other party, it starts a six-month and one day clock ticking. Your marriage cannot be terminated until this time has passed. This does not mean, however, that your case will be completed by that time. Divorce cases can be unpredictable and dynamic, especially if litigated. The more you and your spouse are able to cooperate in reaching a settlement, the sooner your divorce will be completed.
How much will my divorce cost? This depends entirely on the complexity of your case, and how willing you and your spouse are able to cooperate. Litigation can be very expensive, so it is in all parties’ interest to avoid the need to take matters to court.
Family law attorneys in California bill at an hourly rate, which generally ranges between $250-$500 per hour in the San Francisco area. Therefore, the more time your attorney is required to work in filing pleadings and preparing for hearing and trial, the more expensive your case will be.
In addition to billing at an hourly rate, attorneys will require a retainer payment. This payment is held in a trust account by your attorney, and your attorney will take fees from that account as earned. The amount of this payment will depend on the complexity of your case, and ranges vary widely. An attorney may ask for a retainer as little as $2,500 for an uncontested, amicable and relatively simple case, while a complex, highly litigated matter may require an initial retainer of upwards of $15,000. The balance of any funds left in the retainer at the end of your representation will be returned to you.
At the commencement of an action for divorce, the court can order one party to pay spousal support to the other. The court’s decision as to temporary support will be based on whether the paying party can afford it, and whether the other party needs it. If the court determines that temporary (or “pendent lite”) support is appropriate, then it will order what is called as “guideline support”. This is generally calculated by taking into account each party’s income and expenses. Temporary support is intended to keep the parties at a status quo until all issues are resolved.
At the time a divorce is granted, the court has the power to make what is known as an order for permanent support. Unlike an order for temporary support, there is no “guideline” amount. The court must take into account a number of different factors in order to determine if support should be paid, the amount of any support and the duration of such support. California law encourages all parties to become self-supporting, if possible.
Spousal support awards vary greatly depending on your case and the financial status of your family.
Will I have to pay child support? In California, the legislature has created an equation that is used by the courts to set child support. This is referred to as the “guideline” amount. If you and the other parent cannot agree upon the amount of child support one will pay the other, the court will make a “guideline” order. In making this order, the court must utilize the required equation, taking into account information such as the time each party spends with the children, the monthly income of each parent, tax filing status, and other things that affect a person’s income.
Who will get custody of our children? California has a policy of ensuring that children have frequent and regular contact with their parents. Absent a decision by the court that it is not in the child’s best interest to spend ample time with one parent, both parents are expected to equally take part in the raising of the children. Each family is different and each child has their special needs. If you and the other parent cannot agree upon a timeshare schedule for your children, the court will decide what custody arrangement they believe in the best interest of your children.
Does it matter who files first? No. Who files first will have no impact on your case, except for determining who is referred to as the “Petitioner”, who is referred to as the “Respondent” and where each will sit in court at hearing.
What if we change our minds? Up until the date a Judgment is filed with the court, you can always change your minds. Once a Judgment is entered and your marriage has been dissolved, you are no longer married.
Can he/she contest the divorce if they don’t want it? Yes, although you can still proceed to ask the court to grant you a divorce. In order to grant a divorce the court must determine that there is an irremediable breakdown in your marriage, and that there is no hope for reconciliation. If one spouse is determined to leave the marriage, then it will most likely be obvious that there is no hope for reconciliation.
Can it happen faster than 6 months? Although you can enter into a Marital Settlement Agreement wrapping up all the issues in your case prior to the six-month and one day time period, the court cannot terminate your status as a married person until that time period has run. For this reason, it is important that you do not plan to re-marry prior to six months and a day from when the Petition is served.
Do I have to go to court? This depends on the issues in your case. If you and your spouse/domestic partner/other parent have reached an amicable resolution of all your issues, you will not be required to go to court in order to obtain a divorce. However, if you are unable to resolve your issues and have exhausted your attempts at resolution, then the matter must be heard by the court and you will be required to attend any hearing.
I don’t know where he/she is, can I still get divorced? It may take longer than the six month and one day waiting period, but if you are unable to find your spouse you may still get divorced. There are methods by which a person may be served, even if you have exhausted your search, and the court will be able to provide relief.