Q: What is the difference between a legal separation and a divorce?
A: In a legal separation proceeding, the marriage is not terminated. You can obtain orders for child custody, child support, spousal support, and property division. However, you would remain legally married. Parties usually file a legal separation when there are religious or health considerations. When filing for divorce, the marriage will be terminated at some point during the proceeding.
Q: Does the other party have to agree to the divorce?
A: No. You can file for divorce even if the other party does not agree. Additionally, there are remedies available if the other party intentionally delays the proceeding, avoids service, or refuses to cooperate.
Q: How soon can I get a divorce?
A: The Court requires the parties to wait six (6) months after the date the non-moving party is served with the divorce Petition before terminating marital status. The parties can reach a full agreement on all issues before the six (6) month period expires. However, they will not be legally divorced until the waiting period has passed.
Q: Who can serve the divorce papers?
A: Anyone who is over the age of 18 and not a party to the action.
Q: What happens if the other party does not respond to the divorce Petition?
A: If the other party has been properly served and does not respond to the divorce Petition, then the moving party can request a Default Judgment. There are specific rules imposed by the Court when filing a Default Judgment. For instance, the orders requested in the Default Judgment must conform to the requests made in the Petition for Dissolution of Marriage. Please seek the advice of counsel if you are considering filing a Default Judgment.
Q. What happens at the Family Resolution Conference hearing?
A. The Family Resolution Conference (FRC) is a case management hearing set by the Court at the time the Petition for Dissolution of Marriage is filed. At this hearing, the Court will request information from the parties regarding the status of the case and set future hearing dates to monitor the progress of the case.
Q. Who determines the parenting schedule and custody of our children?
A. The parties can agree on a parenting schedule and who will have custody of the children. If the parties are in agreement, then a written stipulation can be prepared and filed with the Court that describes the terms for custody. If the parties do not agree, then a motion can be filed requesting the Court make orders on these issues. In San Diego County, the Court will send the parties to Family Court Services (FCS) Mediation before making a determination regarding custody and parenting.
Q. What is Family Court Services Mediation?
A. Family Court Services Mediation is child recommending counseling imposed by the Court when custody issues cannot be resolved by the parents informally. Both parties are required to attend this mediation without their attorneys. A mediator who works for the Court will meet with both parties to assist them in reaching agreements regarding custody and a child sharing plan. If the parties cannot agree to custody and parenting during FCS mediation, then the mediator will issue a report to the Court making recommendations as to what the custody and parenting arrangement should be for the children.
Q. Do I have to pay child support if we have equal time with our children?
A. It depends. In California, child support is calculated by a statewide guideline formula. The factors considered in this formula include the parties’ respective incomes, the timeshare of the children, health insurance deductions, required union dues and retirement, as well as other factors. If the parties have equal parenting time with the children, but one party earns more income, then the higher earning parent may have to pay child support. Whether a parent will have to pay child support and the amount depends on the particular circumstances in each case.
Q. How is spousal support calculated?
A. There is no specific formula or calculation to determine permanent spousal support. In awarding permanent spousal support, the Court will consider the respective incomes of the parties, the earning ability of the supported spouse, the standard of living during the marriage, as well as other factors set forth in Family Code Section 4320.