Frequently Asked Questions About California Divorce

If you are like most people, you simply don’t know enough about how the divorce process works to feel like you are in control of the outcome. Having some basic information about key divorce-related topics ahead of time will both calm and empower you as you move forward. As the saying goes, “knowledge is power.”

The following are some frequently asked questions about California divorces.

The basics

Q) How do I start?

A) Many divorce cases begin by consulting a California family lawyer. A family law attorney who handles divorces is not required, but he or she can provide key information about what to expect and will work hard to protect your interests.

Q) Will I need to go to court?

A) While you or your local and experienced San Diego divorce attorney need to file the divorce paperwork with the court, most divorce cases don’t need to be litigated. Much of the time, parties can come to an agreement on their own, with the aid of their attorneys, or by working with a mediator or other professional.

Considering the children

Q) How is child custody determined?

A) If the parties cannot come to an agreement about custody and parenting time, the court will decide for them. Judges consider the facts of the case as they pertain to a number of factors set forth by California Family Code Section 3011, Section 3020 and others.

Q) Does the mother always get custody?

A) Though mothers have been traditionally more likely to get primary custody of their children, California judges are specifically prohibited from considering gender when making custody determinations. Under the law, both parents are presumed capable until proven otherwise (see California Family Code 3040 (a)(1)).

Q) How is child support determined?

A) When setting child support amounts, judges again turn to the California Family Code. Section 4055 provides an equation used to find the appropriate amount of child support by considering both parties’ incomes, the amount of time the person from whom support is sought spends with the child, the number of children (if applicable) and the total net disposable income available.

Assets and debts

Q) How is property division handled during a divorce?

A) California is what is known as a “community property” state, thus any property possessed by a married couple is considered (that isn’t a gift or inheritance specifically to one spouse) joint and will generally be divided 50/50.

Q) Will I have to pay my spouse’s debts?

A) It depends. While technically, debts incurred – even if only by one spouse – during the marriage are considered part of the couple’s “community property,” if debt is incurred for spite or with fraudulent intent, the court may order the person who incurred the debt responsible for paying it.

Alimony/spousal support

Q) Is alimony always ordered?

A) Alimony is usually appropriate in situations where the divorce has a disparate economic impact on the parties. Judges will determine eligibility for alimony by looking at a number of factors, including the age and health of both parties, their earning capacities, debts and property arrangements, whether one party sacrificed career or educational opportunities to support the other, the impact that the custodial parent going back to work would have on the children and more.

Q) How is alimony calculated?

A) Alimony is determined by a judge using a local court’s alimony guidelines. The length of an award is made by considering the couple’s standard of living during the marriage, the length of the marriage, earning capacity of each party and the presence of domestic violence or abuse in the home (if applicable).