FAQ’s on Family Law

All questions below are generally answered according to California law and are not intended as legal advice:

Q: What is Community Property?

A: Community Property  generally includes all income earned and all assets acquired with income earned during the marriage, although there are exceptions. Community property includes all income generated from the community asset. California is a community property state, which means that each spouse in a marriage has an equal interest in all of the community property.

Q: : What is Separate Property?

A: Separate Property generally includes anything owned by either spouse prior to their marriage, anything earned or received after the date of their separation, or anything received by either spouse as a gift or inheritance at any time. Separate property includes all income generated from the separate asset. (Note: gifts of “substantial” value given during the marriage can be considered community property.) Title does not necessarily indicate separate property ownership if an asset was purchased or acquired with community property income and/or assets.

Q: : What is the Date of Separation?

A: The Date of Separation means the date that a final and complete break in the marital relationship occurred, as evidenced by the following: (1) a spouse expresses to the other spouse their intent to end the marital relationship; and (2) the spouse’s conduct exhibits their intention to end the marriage. The Date of Separation is the date on which the efforts of the spouses stop earning for the community; thus all income earned after the Date of Separation becomes the separate property of the earner.

Q: What is the community liable for?

A: The community is generally liable for any debts that spouses incur during marriage, which means any money that is still owed on any debts that either spouse took on during the marriage. There are exceptions, 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. It is also important to speak to an attorney about your specific circumstances

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 create a parenting plan for their children. A Petition for Legal Separation (FL-100) is typically filed when (1) spouses want to continue living together, but want to separate their financial responsibilities; or (2) one spouse needs continued health insurance through the other spouse’s employer (if permitted by the insurer); or (3) for religious reasons; or (4) simply when one spouse is not yet ready to file for divorce, but needs to establish financial responsibilities and/or a temporary parenting plan and/or feels the need to send a message to the other spouse that the relationship needs serious help.

A Dissolution (another term for divorce) is filed to end a marriage, which can be accomplished no sooner than six (6) months after the service of a court stamped Petition for Dissolution (FL-100), or it can take years depending upon the couple’s 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 what is separate and community property, how the parties will divide their assets and debts, potential reimbursements and/or equalization payments owed by one spouse to the other, what parenting plan is in the children’s best interests, and/or what is an appropriate amount of child and/or spousal support to be paid.

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 in the future.

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 $47,000 in community assets (other than cars), have less than $47,000 in separate property assets (other than cars), have less than $6,000 in community debts (other than for cars), and neither spouse is seeking spousal support. There are a few other requirements to file this type of petition and California Judicial Council Form FL-810 is a complete instruction book with samples of all forms required for this abbreviated process. Six (6) months after the spouses file with the court a completed and signed Joint Petition for Summary Dissolution (FL-800) and Judgment of Dissolution and Notice of Entry of Judgment (FL-825), the Judgment of Summary Dissolution will be stamped by the court as final, without the need for any court appearance. You can, but you do not need to hire a lawyer to complete a Summary Dissolution and the forms are available at www.courts.ca.gov/selfhelp with instructions.

Q: How long does it take to get a divorce?

A: The Court does not have the ability to end a marriage 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, all of which shall be incorporated into a Judgment of Dissolution. The Judgment and accompanying Judgment forms can be submitted to the Court and then processed by the Court prior to the six (6) month date, but the couple will remain legally married until that six (6) month date.

Note that 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 Stipulated (agreed) 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 (“Petitioner”) will have the choice of either filing the action in the Central District (downtown Los Angeles) or their respective local district. Also, if the case goes to trial, the Petitioner will present their case first; the Respondent (second spouse to file) will present next; and the Petitioner will then have the opportunity to provide a rebuttal. 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 any children with someone, but never married each other and need court orders and/or assistance with a parenting plan and/or support, you must file a Petition to Determine Parental Relationship (FL-200). This type of action establishes the existence of a parent-child relationship between unmarried parents and provides the ability to settle support obligations to minor child(ren) as well as parental rights. .

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,” oftentimes 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 outlining their agreement to the Court for filing and execution. A settlement can 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:

  • 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 consulting attorneys through the mediation process and either of their respective attorneys or the mediator can prepare and file the necessary paperwork with the Court.
  • Collaborative Law/Divorce: The collaborative process allows each spouse to hire a collaboratively trained attorney to consult with and to advocate their respective interests; however, the parties and their attorneys all sign an agreement that neither party’s collaborative attorney will appear in court on their behalf. The spouses and their collaborative attorneys all commit in writing to the settlement process from the beginning. After the initial procedural tasks are completed, the parties schedule settlement meetings with their collaborative team to assess their respective needs, issues and concerns 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 neutral 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 costs much 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, please visit www.abetterdivorce.com, CPCAL, LACFLA and/or IACP.

  • 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, a couple’s / family’s needs should determine which process will best support their respective needs.