Divorce FAQ’s – 7 Frequently Asked Questions of Ms. Schaffer
Below are a handful of questions that many of our new clients and callers to the office ask. Family law issues and the consideration of divorce cause many to consider seeking expert legal representation. Typically, such circumstances are new for most individuals. Moreover, most people have never before had need to seriously consider separation, divorce, spousal support needs, child custody issues or property division. It is not surprising then that so many people ask variations of the same general –and crucial– questions. Please know, there are no foolish questions. Should your question(s) not be answered here, please use our contact form to see if wwe can be of assistance.
What is the Difference Between a Legal Separation and a Divorce and Which One is Right for Me?
In a legal separation, the parties are NOT asking the court to terminate their marriage. Many people seek a legal separation in lieu of divorce for personal reasons (i.e. religious beliefs or health care concerns). The process is otherwise the same: the parties assets and debts are still divided. There are no statutory residency requirements for a Legal Separation; whereas in a divorce, the Petitioner (the person filing for the divorce) must have lived in that county for the previous three (3) months. You are permitted to file for a Legal Separation while awaiting the three month residency divorce requirement.
How Long will it Take for My Divorce to be Completed?
In the State of California, a divorce can be finalized no less than six (6) months from the date the Petition is served.
Will I automatically be Divorced in Six (6) Months?
No. If there continue to be unresolved issues related to your marriage after six months have passed, you must request relief from the court in the form of a Bifurcated Judgment. A Bifurcated Judgment terminates or “dissolves” the marriage, recognizing that there are other separate issues related to the dissolution that are yet to be decided, but that the marriage no longer exists, pending resolution of the other matters.
Is Everything Divided 50/50? How do I Protect Myself Financially?
Once a Petition for Dissolution (Divorce) is filed with the court and properly served on the other party, there are “game rules” put into play called Restraining Orders. These orders of the court are listed on the back side of the complaint and apply to each of the parties equally, no matter who “filed”. In general, both parties are prohibited from the following:
- Taking minor children out of state without prior written consent or court order;
- Making changes regarding your insurance including: canceling, borrowing against, cashing or changing the beneficiaries;
- Transferring, selling or concealing assets, or using them as security for a loan without consent or court order; and,
- Making certain changes to your estate plan,
Is Alimony Still Awarded in 2016?
Yes, and the duration and amount is solely at the discretion of the court. Generally speaking, if the duration of the marriage was less than ten years, the courts will award spousal support for a period of half the number of years of the marriage. A marriage lasting longer than ten years is considered a marriage of long duration and will often award support for a greater length of time. If spousal support is litigated, the court would usually retain the right to decide the amount and duration of spousal support.
I Inherited a Large Sum of Money Before I was Married? Is my Spouse Going to get Half?
Not necessarily; in fact, a gift (or inheritance) is the separate property of the party receiving the gift (or inheritance). Unless the gift (or inheritance) was intended to be given to both parties, it is considered to be the separate property of the recipient, and is thus not community property.
Is There a Difference Between Legal Custody and Physical Custody?
Legal custody is the right and the responsibility to make decisions related to the health, education and welfare of a child. Physical Custody refers to the periods of time physically caring for the child.
How is Child Support Determined?
Child support is calculated using a formula derived from state guidelines. There is a computer program used by the State of California (which your attorney can also use to calculate this) that takes the following factors into account: Income of both parents (or ability to earn), the percentage of time the child(ren) spends with each parent, as well as various other factors that affect each parent’s net income.
San Diego Family Law Attorney, Sarah T. Schaffer is direct and will keep you informed. With her, you will have a strong advocate to represent and protect YOUR best interests, providing aggressive representation if necessary.