Family Law Faq

Frequently asked questions

FAQ on Family Law

What You Need to Know About Family Law

Family law is one of the most emotionally complex areas of the law, and facing such a matter can be confusing and intimidating. The best way to conquer your anxiety about the road ahead is to make sure you have a firm understanding about the processes that might be involved. That is why our team of Certified Family Law Specialists and associate attorneys have answered some of the most common questions that our clients have.

There can be pros and cons to handling a divorce on your own. Most times, a summary dissolution – where both parties agree on everything and no children or property is involved – can be handled on your own. Ultimately, what you choose to do depends on your situation, which can be influenced by such things as time, cost, and impact on your children.

However, it is always a good idea to have a divorce attorney review any agreement before signing – even a single, minor mistake in a legal document can add time and money to the process. A lawyer can help ensure that your documents are accurate, and that you aren’t taken advantage of in any way. More importantly, should you and your ex be unable to reach an agreement, having an attorney is the most effective way to ensure that your rights and interests are protected.
The very first and most important thing to do if you have been served with divorce papers, is to file a response. If you do not file a response within 30 days, it will become a default divorce. This means that the court can rule in favor of your spouse and you will have no say in any of the matters at hand. In short, you will have been removed from participating in the case, so filing a response must be done.
When determining spousal support, the judge will look at a number of factors. These include such things as the standard of living during the marriage, the length of the marriage, and the earning capacities of both husband and wife. Spousal support can change if circumstances of one or both parties change in the future. Additionally, alimony can be ordered as temporary or permanent to accommodate for immediate versus long-term needs.
Spousal support is often misunderstood by divorcing couples – the reality is that the goal of spousal support is to allow a lower-earning spouse to maintain his or her standard of living while moving toward self-sufficiency. Thus, long-term spousal support would be granted to an ex-spouse who does not have earning potential, which means that he or she has not pursued a career and needs an extended period of time to become economically self-sufficient.
The duration of a spousal support agreement will vary depending upon the unique circumstances of your case, but you are legally obligated to pay alimony according to the terms of the order. Most permanent spousal support orders will require that you pay alimony until your ex remarries or dies. In these cases, you may be able to petition the court for a modification in the event that your ex enters into a cohabitation, in which he or she is living with a new partner as if they are married, and sharing living expenses.

Presently, most spousal support orders are designed to only last as long as your ex needs to become self-sufficient, which is typically determined based on the length of the marriage and your ex’s earning potential. In these cases, you can petition the court for a modification in the event that your ex remarries, enters into a cohabitation, or gets a new job. A significant change in your own financial circumstances may also be grounds to petition for a modification.
Similar to alimony, you are legally required to make child support payments for the length of time specified under the court-order. As a general rule, child support obligations cease once a child reaches the age of majority, which is 18 in the state of California, or graduates high school – whichever comes last.

That said, there are circumstances in which this may not be the case. If your child becomes emancipated, support obligations end. The length of child support can be longer if the child turns 18 before graduating high school, or if he or she has a disability. Additionally, some parents may be required to pay for college expenses as part of a support order.

If the financial circumstances of you, your ex, or your child change at any time, you can petition the court for a modification – note that this will generally result in a change to the amount of payments, not an end to them.
For some spouses, having to be financially independent after a divorce – particularly a lengthy one – is the most terrifying prospect, especially if you have children. Fortunately, the law recognizes this, which is why child support and spousal support exist. However, it is important that you do not rely on these payments, but that you take active steps toward self-sufficiency after a divorce.

Make an investment in yourself to get back into the workforce, brush up on your education and professional skills to advance your career, or consider opening your own business. There are a number of ways to help further your earning potential, and it is important to begin that process as soon as possible. Spousal support and child support payments can help you stay afloat in the meantime.
According to California laws, if one party offers a gift to another under the assumption that a marriage will take place, and said marriage does not take place, the gift or its value shall be awarded to the donor. Most courts will treat an engagement ring as such a gift, which means that in addition to showing that you’re the bigger person and allowing you to let go of a negative returning the ring is actually legally required – and your ex can sue you if you don’t.
It is well known that California is a community property state. That means that in a divorce, all marital assets are divided equally. What about debt? In California, the law says that both parties are responsible for all debts that are incurred during the marriage and prior to separation. All marital debts will be factored into a property division settlement or order.
A common question in Southern California family court is whether it is alright to change the locks of your home in order to keep your spouse out. The short answer to this question is no. Even if you are the sole name on your title or lease or paying all of the mortgage or rent, your spouse is legally allowed to enter the home until a court order specifies otherwise.

Therefore, if you or your children are suffering from any abuse at the hands of your spouse, you must contact us immediately. Our attorneys can work quickly to help you take swift legal action and file an Order for Protection to bar your spouse from entering your home.
If you have chosen to leave the marital residence, you do not have to worry about your possessions. Unless you have been barred from the home by a court order, you are free to enter and retrieve your personal items. If you have found that your spouse has changed the locks, you are within your legal rights to contact a locksmith to help you get inside.

If you are moving out and feel that your spouse may attempt to keep you out, you can take the right steps to protect your personal belongings. Be sure to make an inventory of all possessions that belong solely to you. This includes items that were given directly to you or family heirlooms that have been passed down to you. It is also a good idea to take a picture of these items for future reference.
So many parents are petrified of talking to their children about divorce, but it is a crucial conversation to have. The best way to approach it is to prepare for it – discuss in depth what you and your ex want to say and lay some ground rules. Then block out a period of time on your family’s schedule to ensure that there won’t be any interruptions.

Only tell them about it when you the decision to divorce is final – don’t bring it to them when you’re still in the consideration phase. Use empathy and honestly while speaking to your children about it, and keep the conversation going for however long your children need to process it – this can mean years. Be patient and willing to listen to and address your child’s feelings.

The most important points to make sure your children understand include:
  • It’s not their fault
  • It’s okay to feel the way they do
  • They have support available to them
  • You love them
  • This divorce does not define them
  • Marriage can be wonderful
The main thing to be aware of is that the court will always do what they feel is in the best interest of the child. This requires that the court consider the “health, safety, and welfare” of your child. A judge will determine custody  based upon a number of factors, including history of abuse, relationship with both parents, each parent’s ability to provide a stable home, and the likelihood that each parent will encourage the child to maintain a relationship with the other one.

In short, as long as you are able to prove that you are fit to provide care for your child in his or her best interests, a court will likely grant you custody or visitation in some form. The question that remains is whether this custody will be sole or joint – an answer that will be determined by the ability of your ex to also provide care to your child.
Legal custody refers to the legal authority to make major decisions on behalf of the child. These decisions can vary in scope and importance, including the welfare, religion, medical, education, and day-to-day activities of their child. Sole legal custody means that only one parent may make all of these decisions.

Physical custody refers to the parent who has the physical responsibility for the care of the child. Joint physical custody means that each parent has significant periods of physical custody.
Even though adultery is frowned on by society, it carries no weight in divorce proceedings. Because California is considered a ‘no fault’ state when it comes to divorce, the actions of a spouse does not play a role in the determination of issues involved in a dissolution case as long as the spouse has not exposed the children to inappropriate behavior. The court will ultimately serve the child’s best interests.
In California, there is no waiting period after a divorce is finalized before you can marry again. Once your divorce is finalized and you have a certified copy of the divorce decree, you are free to get married again. However, when you file for divorce, the final judgment ending the marriage will not be entered until 6 months after the initial papers are filed.
Deciding who gets the house in a divorce is more complicated than simply agreeing on who wants it. Like every other asset and debt accrued during the marriage, the house is up for negotiation. There are no rules or guidelines to determine who gets the house – this asset is part of the bargaining that goes into property division.

In order to decide who gets the house, you, your ex, and both of your attorneys will need to determine its financial value, along with the financial value of all other assets, and evaluate each party’s ability to afford the future expenses involved in keeping the home. Bear in mind that all property will be divided equally – so if you end up getting a house with a large amount of equity, be prepared to give up other major assets.

Additionally, it is important to understand that there are a number of legal and financial steps that must be taken when resolving this matter – for example, the party that keeps the house will need to refinance it to remove the other spouse from the mortgage. Finally, should both parties agree to sell the house, the language of the property division agreement will need to include the details and timelines of the sale.
Grandparents are often on the outside looking in when it comes to maintaining relationships with grandchildren. You can petition the court for visitation in certain circumstances. Ultimately, there must be a pre-existing relationship and bond between you and your grandchild and visitation must be deemed to be within the best interest of the child. Your grounds have to be compelling enough to circumvent the parents’ right to make decisions about their children.

Do You Have Further Questions?

Our knowledgeable Orange County attorneys at Holstrom, Block & Parke, APLC can help you with all your questions regarding divorce. We can help you get started and guide you through the entire process. Call (855) 939-9111