What Should I Know About Divorce and Custody?

There are many things to take into consideration when you are considering initiating a divorce action in California. The State Bar of California website has a general checklist for what you need to know about divorce and custody, which is a great resource for parties involved in, or thinking about filing for divorce and/or custody. The following are the areas addressed in the article:

http://www.calbar.ca.gov/Public/Pamphlets/DivorceCustody.aspx

1. What are the grounds for divorce in California?
2. Are there any rules that my spouse and I must follow during the divorce process?
3. Do I have any options in how I handle my divorce?
4. Can I get a legal separation or an annulment instead of a divorce?
5. Is there a simplified process for getting a divorce?
6. How do I file for divorce?
7. What should I do if my spouse injures me?
8. How can I get information from my spouse about our property and finances?
9. How will our property be divided?
10. What is spousal support? Is it the same as alimony?
11. What happens to our children when we separate?
12. What happens if we cannot agree on custody?
13. What choices does the judge have in granting custody or visitation rights?
14. Will the judge consider our children’s wishes?
15. Is the dissolution process the same for registered domestic partners?
16. Do I need a lawyer?
17. How can I find and hire the right lawyer?
18. How can I get a divorce through mediation?
19. Can I handle my own divorce without a lawyer?

Some of the most important of the above questions are the following:

Are there rules that my spouse and I must follow during the divorce process?
Yes, there are rules, called Automatic Temporary Restraining Orders, that prevent each spouse from engaging in certain actions without the written consent of the other spouse, or a court order, once a divorce proceeding commences. Examples of these are that neither spouse may take the minor children out of state, without written consent or a court order. Additionally, neither party may cancel or change the beneficiaries of any insurance policies, or transfer property. It is very important that parties to a divorce are aware of these rules and do not do anything to violate them.

How can I get information from my spouse about our property and finances?
In a divorce proceeding, both parties must complete and exchange financial disclosure forms before property is divided and before a divorce can be granted. These financial disclosures are meant to ensure that each party has full and complete information regarding all assets, debts, income and expenses of the other party. If your spouse fails to provide full and complete disclosure forms, there are other options to obtain more information, such as subpoenas and formal discovery. It is imperative that each party has a complete picture of the existing property and finances before reaching a settlement agreement, or proceeding to trial.

How will our property be divided?
California is a community property state. That means that most property and debts acquired during marriage are presumed to be “community” in nature and must be divided equally, unless you and your spouse agree otherwise. Property (or debt) that was owned by either spouse before marriage, or was inherited or given to a spouse during marriage, is most often deemed the “separate” property of that spouse, and is not divided during a divorce. Division of property and debts can be one of the most complicated aspects of a divorce. If not done correctly, there can be serious and lasting consequences. It is therefore highly recommended that you seek the advice of a lawyer before making any agreements with regard to dividing property and debts.

What is spousal support?
Spousal support is the same as “alimony,” and is money paid from one spouse to the other to “support” him or her. The court has wide discretion when it comes to the payment of spousal support and several factors will be considered in ordering spousal support, including the marital standard of living, the length of the marriage, the earning capacity of each party, and the age and health of both parties. The court will also take into consideration whether one spouse was out of the work force for an extended period of time to take care of minor children and whether either spouse obtained an education during the marriage.

What happens to our children when we separate?
Custody and visitation of children during and after a divorce is probably the most emotionally difficult aspect of a divorce. The main consideration in determining custody and visitation of children is the “best interests” of the children. In most cases, you as the parents are the best able to determine what is in your own children’s best interests. Thus, if you can reach an agreement between the two of you, it is most often the best for all involved. If you cannot reach an agreement, the court will have to decide. There is a lengthy process involved before a judge will make a final decision, however, which can include mediation, a judicial custody conference, and a custody evaluation, before you even get to a trial. The time involved in a custody dispute, as well as the cost (both financial and emotional) can be considerable. Additionally, when the court makes the decision about your children, often, neither party is happy. As stated in the article, the best solution for children is for the parents to decide who will take care of them.

The last question on this list is, “Can I handle my own divorce without a lawyer?” As discussed in the article, the short answer is yes, you can handle your divorce without a lawyer, but depending on your case, it is not always the best option. Specifically, when you act as your own lawyer, “you could accidentally make expensive mistakes.” Because of this, it is always advisable to at least consult with a lawyer to discuss what your rights are, with respect to property division, support, and custody and visitation. At Argyris Mah, LLP, we have the legal knowledge and experience to answer any questions you may have about your San Jose divorce case. Even if you have chosen to represent yourself, we offer consulting arrangements, where we can guide you through the process and point out things you may have missed, or were unaware of, while you continue to represent yourself. It is also important to note that if you chose to represent yourself because of financial concerns, in certain situations, the court can order your spouse to pay for your attorney fees and costs, so that both parties have access to adequate representation.

Call us at (408) 564-5674 to schedule a free 20 minute consultation or an in person appointment.

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