Frequently Asked Questions & Tips

  1. What is common law marriage?
    Traditionally, common law marriages occurred when a couple lived together for some period of time (usually 7 or 14 years) and held themselves out as husband and wife. Today, California and most states do not permit marriage to be contracted this way, although there are still several that do so. It is sometimes said that “California does not recognize common law marriage.” This is not entirely true. If a couple is validly married under the common law of another state, then California will recognize the marriage. However, California will not permit the initial formation of a common law marriage within its borders.
  2. What is community property?
    Community property is property acquired by the parties between the date of marriage and the date of physical separation. This can include the family home, automobiles, businesses, stock options, furniture, retirement plans, frequent flyer miles, season tickets, etc.
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  3. How long will my divorce take?
    This is one of the most often-asked questions, and one to which there is no set answer. We have seen divorcing couples negotiate and finalize their settlement agreement in a matter of weeks, and we have seen divorces take several years to work their way through the courts. If your divorce is truly uncontested, you could potentially complete all the paperwork and have it submitted to the court in as little as 30 days. From there, it may take the court anywhere from six to twelve weeks to process and return it to you, although there is an expedited process available for a small additional cost.
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  4. When will I be single again?
    This is a frequently misunderstood concept. California imposes a six-month waiting period from when the Petition and Summons are first served on the responding party. This means that the earliest you will actually be returned to the status of a single person is six months. But it doesn’t guarantee that you will be a single person in six months. If you and your spouse negotiate a settlement agreement and submit the paperwork to the court quickly, then your Judgment will have a future date which will likely be the six-month date. But if your divorce is highly contested and continues for some time, you might possibly not be divorced for more than a year.
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  5. Can my spouse throw me out of our family home?
    Unless there is domestic violence, or some kind of physical or mental abuse, then generally not. When a family residence is community property (which is typically the case), then each spouse has an equal, undivided one-half interest in the home. Neither spouse has a superior right to reside in, occupy or control the home. Your spouse may file a motion with the court to try and obtain a kick-out order, but the odds of obtaining such an order without violence or abuse are extremely low.
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  6. Can I file for divorce if we still live together?
    Yes. It is not necessary to reside separately to file a divorce action. In fact, absent domestic violence issues we generally recommend that neither parent move from the home until there is some kind of an interim custody and visitation plan in place if there are minor children. Otherwise, you may find yourself in the position of begging the other parent for permission to spend time with your children and giving that other parent unilateral control over them until you can obtain a court order.
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  7. Do we have to have lawyers to get divorced?
    No, absolutely not. But it may be prudent to hire an attorney to review the settlement agreement to make sure that you understand it completely and that the agreement is properly drafted.
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  8. What will happen to our children?
    That’s a difficult question to answer. Parents are best able to decide what is best for their children, but are often unable to reach agreement. If one parent files a motion with the court to obtain custody and visitation orders, then the parties must first meet with a court-provided mediator who will attempt to bridge the gap between them before they appear in court. Depending on your county, the mediator may write a report to the court with recommendations for temporary orders. But ultimately, if the parents cannot agree, then a judge will have to make the decisions for them. There is no preference anymore that kids stay with one parent or the other. Instead, the judge will use a “best interests of the child(ren)” standard to make orders that he or she believes will be best. The preference is for children to have frequent and continuing contact with each parent, and for shared parenting. Despite your spouse’s threats, he or she will not be able to keep you from seeing your children unless you pose a legitimate danger to them.
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  9. What happens if I don’t change my will after divorce?
    This is something we hope you don’t forget, but there is good news. If your spouse is a beneficiary under your will, or the executor of your will, California law automatically terminates those provisions in your will. That can, in and of itself, cause other problems, but it will remove your spouse from being able to benefit from your will.
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  10. Do I have to pay my spouse’s attorney fees?
    Maybe, maybe not. Whenever possible, the courts tend to prefer to utilize community, or joint, funds for attorney fees, because then each party has a financial stake in trying to settle the case without litigation. When there are no such funds, the court will compare the assets and incomes of the two parties to see whether a fee order is warranted. When one spouse earns substantially more than the other, there may be an attorney fee award of some kind. However, when that higher-earning spouse is subject to child and spousal support orders, he or she may actually have less income at the end of every month than the other spouse, and it is quite possible there will be no fee award.
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Divorce Tips and Traps.
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  1. Always keep in mind the big picture.
    Don’t sacrifice your long-term goals by being short-sighted and focusing too much on short-term victories.
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  2. Document. Document. Document.
    When custody and visitation of children is a disputed issue, it is vitally important that you keep a parenting notebook or journal to record events surrounding your kids. Speak with your attorney to learn how best to protect this information from being discovered by the other side before you are ready. Also, keep detailed financial records of what you spend and any reimbursements to which you may be entitled.
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  3. Ignore amateur attorneys.
    We all know someone who knows someone who knows someone who got divorced and took his or her spouse for everything. Or somehow got away without paying alimony. Usually there is another side to the story, and the law can be quite complicated. Trust your attorney to give you the real scoop on what the range of potential outcomes is in your case.
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  4. Ignore your spouse’s threats.
    Do not believe everything your spouse tells you. Most of the time, the threats are nothing more than bluster to intimidate you into a settlement you probably don’t want. The biggest threats are generally (a) you’ll never see your kids again, (b) I’ll bankrupt you with child support and alimony, and (c) I’ll take you for everything you have. Trust your attorney to tell you what the law really says and what the reality is. You should be much more concerned about what the judge says than what your soon-to-be-ex says.
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  5. Read everything.
    Make sure you read and understand every document given to you, from your attorney’s fee agreement to your disclosures to your settlement agreement. It can be terribly expensive and time-consuming to have to do work twice than to get it right the first time.
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  6. Consider your divorce a second job.
    Getting married is easy. Getting divorced is hard. Not just emotionally, but because there is a lot of work that needs to be done. The more work you do at the beginning of the case, the less work that needs to be done towards the end of the case when you are frustrated, tired and worn down. Gathering documents and financial records is tedious and time-consuming, and frankly, not fun. But, you do not want to waste a good opportunity to settle your case, or a good opportunity for the court to make an order in your favor, simply because you didn’t take the time to find the supporting information and documentation that is needed.
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  7. Be proactive.
    Do not wait until the last minute to deal with potential problems. The courts are not open 24/7, nor is your attorney’s office or your spouse’s attorney’s office. We all have a lot of work on our plates, and it may not be possible for your attorney to drop what is on his or her desk for a last-minute crisis. Unless it truly is an emergency, that is. Keep in mind that filing a motion with the court doesn’t instantly resolve a problem, either. It frequently takes anywhere from six to eight weeks or more to get a court hearing once you file the motion.
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  8. Follow your attorney’s instructions, and follow court orders.
    You are paying your attorney, an experienced professional, good money for his or her guidance and advice. We generally know what the prudent decisions are, and can help you make smart choices that will prevent problems down the road. What’s more, court orders are not “suggestions” but rather mandatory instructions that must be followed, even if you think the judge made the completely wrong decision. A judge will be more likely to listen to your arguments and complaints, and possibly rule in your favor, if you have a history of complying with court orders than if you constantly run afoul of them.
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  9. Photograph property.
    One of the most frustrating things to try and do in a divorce case is prove that a piece of furniture, a valuable painting, or an antique vase actually existed. It is disappointing, but not entirely surprising, that sometimes property just “disappears.” Photographing property demonstrates its existence and condition. In fact, it’s generally prudent to photograph and/or video record all property, including the condition of the family home, to help resolve disputes that may arise later.
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  10. Don’t lose your temper.
    Do not fall into the trap of letting your spouse antagonize you to the point where you lose your temper. Do not yell, grab, hit or throw anything in the presence of your spouse or your children. One of the most abused processes in family court is the domestic violence restraining order. Not that domestic violence isn’t real – it occurs far too frequently and hurts way too many people – but it is also used by some spouses to try and get a “leg up” in court proceedings, particularly when custody and visitation of children is at stake. Here in California, if the court makes a finding that you have committed domestic violence, there is a  presumption that you should not be the primary parent to your children. This is serious business. If your spouse tries to incite you, just walk away with your hands in your pockets. Even just trying to block your spouse from entering or leaving a room may be considered abusive.
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  11. Love your children more than you hate the other parent.
    No one says you have to love your ex, or sit around a campfire singing “Kumbaya” with him or her. There can be such a high level of conflict and animosity between some parents that their relations may never be normalized. But it is important to keep your focus on your children, and to keep them as far out of and away from the adult disputes in the case as is physically possible. Don’t put your daughter in the position of agonizing over who will walk her down the aisle at her wedding because Mom and Dad can’t be in the same building together. Don’t make your son have to worry about who comes to visit at the hospital when your grandchild is born. Your children are already victims of your failed relationship. Your behavior now and into the future will determine how long they will remain victims, and will set an example for how they should conduct themselves in the future.
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  12.  Pay your attorney, and pay on time.
    Yes, this may be a bit of a self-serving tip, but it is important. How would you react if your employer demanded that you keep working, but told you he was not going to pay you for your work? Divorce can be expensive, and our office does everything we can to try and keep costs and expenses down. However, we are not banks and cannot afford to extend credit to our clients. We have our own families and children to provide for, mortgages/rent, groceries and utility bills to pay. There is a common misperception that family law attorneys get wealthy from each case. Between our overhead, law school student loans, malpractice insurance, staff expenses, and other costs of doing business, many of us just barely get by. For every hour an attorney spends on your case, that’s an hour the attorney cannot spend on someone else’s case who is willing and able to pay. If you believe you cannot afford to pay to continue having attorney representation, then we will be happy to discuss alternative options with you, such as unbundled services or limited scope court appearances.

Contact us or call (925) 465-2500 or (707) 398-6008 for more information about our firm or to schedule an initial consultation at Sparks Family Law, Inc. with attorney Gary D. Sparks.