Frequently Asked Divorce Questions
divorce may seem like the only option for a couple. In these circumstances, you
will need all of the information you can get your hands on to ensure that
divorce is the appropriate option for your case. You should know the grounds
how your property will be divided, and how
child custody may be awarded.
Answers from Our Palmdale Divorce Lawyer
If you are filing for the dissolution of marriage in Palmdale, California,
we encourage you to ask our
Palmdale divorce attorney all of the questions you have to gain a strong understanding of your case.
To start, you can read through the frequently asked questions we have compiled below.
What if I was married in another state but I want to file for divorce in
If you and your spouse were married in another state, you can file for
divorce in California. The only requirement is that either you or your
spouse must have lived in the state for six months and in the United States
for three months. In addition, same-sex married couples are allowed access
to divorce in the state of California because the state now recognizes
same-sex marriages even if they were conducted in another state.
What are the current California laws regarding same-sex marriage?
As of June 27, 2013, same-sex marriages are once again legal in California.
This decision is a result of the case
Hollingsworth v. Perry that began on December 7, 2012. This is one of the most significant developments
in family law since Proposition 8 barred same-sex marriages in California.
Because same-sex couples are now able to get married in this state, they
are also able to divorce under the same laws as heterosexual couples.
Who can receive spousal support?
Spousal support, formerly known as alimony, is a set amount of money that
is paid by one spouse to another in the case of divorce or a legal separation.
Whether you are the husband or the wife, you can apply for spousal support,
depending on certain factors. The purpose of alimony is to even out the
financial futures of each party. We can fight for your right to spousal
support or against the other party's request for spousal support.
In what circumstances does parentage have to be resolved?
Paternity has to be established in certain family law cases. In cases in
which two individuals are legally married, parentage of both parties is
assumed. In these cases, the husband is assumed to be the legal father.
In some cases, either party may request a paternity test. If the father
does not want to pay child support because he believes the child is not
his, he can request a paternity test. In some circumstances, an unmarried
couple can pursue a paternity test to protect their individual rights.
The alleged father can pursue paternity testing if he wants child custody
rights. The mother may wish to establish paternity in order to receive
child support from the father.
Who can receive visitation rights?
Visitation schedules are based on the best interests of the child in California.
Visitation rights are often awarded to the noncustodial parent of a minor
child or children. These rights can be awarded to fathers, mothers, grandparents,
and other members of the family in some cases. You can either obtain supervised
or unsupervised visitation depending on the circumstances of the case.
I've gotten remarried. Will my new spouse's income affect my child
No. Under California law new spouse income is only considered in extraordinary
cases of "extreme hardship."
See Family Code § 4057.5. What might be an extraordinary case? The statute says an extraordinary
case might be one where a parent voluntarily quits work or reduces income
and instead relies on the new spouse's income. I tried this argument
when I had been practicing law about a month. The judge asked me if my
client was sleeping on a park bench, I had to say no. "No hardship!"
the judge said. His view is the prevailing one. In thousands of cases
I have had involving child support, I have yet to see a judge include
a new spouse's income.
What is a first right of refusal?
A first right of refusal in a family law context is the opportunity to
care for your children when your ex is unavailable to care for them.
Family code section 3040(a)(1) sets out the 'priorities' when a Court makes a custody order.
The family code states that if both parents are adequate parents the court
must order custody to both of them. The Court is forbidden from awarding
custody to a third party in this circumstance.
It is this 'parents get priority' policy that drives a first right
of refusal order. The idea that if you are unable to care for your child
due to work or other responsibilities, then you must offer the child to
the other parent first before handing the child over to a third party
for child care.
The court typically sets a time limit (I recommend 6 hours or more) that
you can be away from your children before having to offer the other party
the opportunity to care for them. This is not a mandatory provision. The
Court has the discretion to make this order only in appropriate circumstances.
I want to change something in my custody orders. What do I need to do?
This is a little like asking, "I need to rebuild the engine on my
car, what do I do?" There are a lot of steps! The best approach would
be to talk to an attorney during a consultation to determine your options.
Changes in custody orders are fact driven. For instance, does the change
you are proposing make sense? Remember the last resort for the Court is
to change a custody order.
Example: My ex is smoking around our children, I want to change our custody
arrangement. If you took the case to court the judge would likely restrict
both of you from smoking around the children and would not change the
underlying custody arrangement without more compelling circumstances.
Circumstances that may warrant a custody change might be neglecting the
child's school work, medical care or dental care.
My ex isn't following our custody orders. It's a lot of little
things – can I take them to court over it?
My response to this question would be the same as the last. Have a consultation
with a qualified attorney. The definition of "little things"
would vary from person to person. If the judge thought they were little
things, they would be unlikely to change the underlying custody arrangement.
Talking to a qualified lawyer could help improve your chances of changing
your custody arrangement. Over the years, I have made a lot of suggestions
to clients about consolidating a lot of small things into larger issues
that the Court is more likely to recognize as necessary for a custody change.
When will the court consider my child's opinion on where she wants to live?
It depends. Clients often tell me, "I heard that when my child turns
13 they can tell the judge where they want to live." I used to tell
clients that there is no hard and fast age when a child may give their
opinion to the Court about where they would like to live. I can't
say that any more because the legislature amended Family Code § 3042
in 2012 to allow a 14 year old to address the Court unless the Court determines
that the child stating a preference is not in the child's best interests.
Still, the Court will weigh the child's age and maturity. The governing
principal will be whether or not the child's reasoning is intelligent
rather than merely looking at the child's age.
There are two cases that map out both ends of the spectrum:
In the words of the trial court: "Frankly, I just can't give that
much weight to a fourteen-year old boy's statement that he would like
to make a change. There is no — it's true that the Code Section
4600 says of a sufficient age and capacity and reason so as to form an
intelligent preference, the court shall consider it and give it due weight.
But, the Court has to look beyond this statement of a teenager and figure
out where his best interests are. [¶] There is no question a fourteen-year
old boy is in that age bracket when he is looking for two things at the
same time, more freedom and he is looking for somebody to guide him at
the same time. And just because he wants to make a change and get away
from his mother and live with his father, I don't think is a reason
for the Court to make the change. I don't feel bound at all by his
testimony. I am not persuaded that his statement is supported by any mature
objective reasoning as to why he wants to make a change."
I'm a better parent than my ex and much more involved with our child's
school. Can I ask the court for my custody? Should I bring evidence of
my school participation?
Is your existing custody order a "permanent" order under
Montenegro v. Diaz (2001) 109 Cal.4th 249? Your order is permanent if it was either an agreement that explicitly
states the order is permanent or your order was made by a judge during
a contested hearing in which both sides presented evidence and the Court
rendered a decision. Permanent orders are more difficult to change. To
change a permanent order you must demonstrate a change in circumstances
that affect the child's health, safety or welfare. If the order is
not permanent then you merely need to prove that the proposed new custody
schedule is in the child's best interests.
In all the cases I've been involved, I can't recall a parent telling
me they were the worst parent of the two! Every parent believes they are
the better parent. Try to strengthen your proposal with evidence you can
present in Court as to why you are the better parent. Being more involved
in school than the other parent by itself would probably not result in
a change in the underlying custody order under either legal standard previously
Consult the Law Offices of John C. Bigler Today
If you are in need of further information, we encourage you to schedule
a case evaluation with us at once. If you are facing an issue with any
aspect of your divorce case, our Palmdale divorce lawyer can provide you
with knowledgeable information and counsel. With more than two decades
of experience, he can provide answers that you can trust.
Contact us today for further information.