Divorce Issues

Does it matter which one of us files first?
The person who files first is referred to as the "Petitioner;" the other person is the "Respondent." There's no special advantage to being the first to file. Either person can claim irreconcilable differences and there is no "burden of proof" to be concerned about. Also, if both parties agree to all terms, one person can file and obtain an uncontested divorce.

How long does it take to get a divorce?
The law provides that it take a minimum of six months from the date the other party is served with divorce papers to finalize the divorce. Often, issues can be resolved much sooner, and an agreement can be drafted and entered with the court as a judgment. Neither party is viewed as "single," however, until the six months have passed. Some divorce proceedings extend over years. Sometimes a judgment is entered as to "status only," which means both parties are single but unresolved issues remain.

Must I have "grounds" for divorce?
California is a "no fault" state, so "irreconcilable differences" can be the only grounds for a divorce. If one person claims irreconcilable differences, most likely the divorce will be granted. It really doesn't matter what either party did to cause the divorce. The law will divide up the community property in an equitable manner with no fault-finding or blame.

Can I represent myself in my divorce and not have a lawyer?
Yes, it is possible for people to obtain their own divorce. But it's advisable to seek counsel of an attorney if (A) you own real estate or substantial property, (B) there are children; (C) either party is self-employed; (D) either of you has a pension/retirement plan; (E) your marriage has lasted for ten years or longer; or (F) there is an issue of spousal support which must be addressed. These are complex issues that usually require experience and professional insight.

If you do want to represent yourself, you may seek the assistance of a Family Law Facilitator in the County Courthouse in Orange County. The facilitator's office offers workshops and assistance. For information, call 714 935-8304. You can obtain the necessary forms from the clerk's office on the seventh floor of the Family Law Courthouse, 341 The City Drive, Orange, CA.

How will Child Support be determined?
Mandatory California guidelines apply to child support issues. The amount is determined by a formula that involves many factors including the percentage of custodial time with each parent, income factors, tax matters and certain deductions. An unemployed spouse may be imputed with income as if he or she were employed. An attorney can help determine the appropriate child support and assure that all appropriate aspects are considered.

How are Child Support payments enforced?
The parent who has been designated by the court to make payments for child support may have his or her wages garnished, with payments made through the employer. Failure to pay child support can result in the suspension of licenses, interceptions in tax refunds, fines and jail time.

Is Spousal Support always awarded?
Spousal support is a payment one spouse makes to the other on a monthly basis after the dissolution of the marriage. Just like child support, spousal support is calculated based on income factors. Those factors may include the length of the marriage, the ability of one spouse to make the payments and the needs of the other spouse. No absolute guidelines exist and courts in California typically expect each spouse to become self-reliant and self-supporting. Tax consequences can result (for both parties) from spousal support.

Does my spouse have a claim on my Pension?
Retirement and pension funds earned during marriage are considered community property. Funds accumulated before the marriage are viewed as the separate funds of the spouse who earned them. Dividing pension and retirement funds can be a complex process, so an attorney should be consulted.

Can I annul my marriage?
A marriage can be annulled if the proper grounds are proven. Acceptable grounds include fraud, bigamy, prior existing marriage, incestuous marriages and unsound mind. There are no residential requirements for annulment. Annulment proceedings must be initiated within the first two years of marriage.

Can we become legally separated?
The process of legal separation is precisely the same as that of filing for divorce, however, at the conclusion of the proceeding the parties remain married but all assets, debts and liabilities are separate. The reasons for legal separation, as opposed to divorce, include health insurance coverage or religious beliefs. A legal separation can later be changed to divorce with the proper filing.

How will our property and debts be divided?
California is a community property state, which means any property or debts acquired during the marriage are considered the property and responsibility of both parties. The courts will divide any and all community property and debts equally. Property and debts, as well as inheritances and gifts, acquired prior to or after the marriage ends will be considered the separate property, debt and responsibility of the person who acquired them.

What is an uncontested divorce?
An uncontested divorce can be done if the parties have reached an agreement on all issues. We represent only one party, but we draft and help both parties design an agreement that supports their terms of the divorce. This reduces the number of court appearances and the costs.

How much will you charge to handle my divorce?
The offices of Booker T. Burney Jr. will provide the highest quality professional service on an hourly basis. Fees are based in part upon the time expended by the law office staff and their expertise in the legal and financial areas. We will provide itemized statements for services we render and costs we incur.

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Questions about Child Custody? Visit our Custody & Visitation section for information.