FREQUENTLY ASKED QUESTIONS
- Should I try to handle my own divorce (pro per)?
- How can I keep the cost of my divorce as low as possible?
- What is a “Common Law Marriage?”
- In the event of domestic violence, what should a person do?
- Can a court order alimony payments after a divorce or separation?
- How long will a spouse have to pay (or be able to receive) alimony?
- Do fathers always pay child support? Do men always pay alimony?
- What are some common arrangements for child visitation?
- Can my ex-spouse take the kids out of town to visit family without my permission?
- Are there any special considerations for a second marriage?
- Who has the right to take the family pets in a divorce?
- Do I need a prenuptial agreement?
- What if I’m over 50 and getting divorced, are there any special issues?
- What do I need to do if I want to change my name legally after a divorce?
Should I try to handle my own divorce (pro per)?
In some situations, you should be able to handle a simple divorce yourself, as long as these circumstances apply.
- You have been married less than 10 years.
- You do not have any minor children.
- You do not own any real estate, such as a home, either seperately or together.
- You do not own or have interest in a business, either seperately or together.
- Neither party has any interest or ownership in any retirement benefits.
- Your incomes are relatively the same; no one makes a great deal more than the other.
If you can answer “yes” to all six of these questions, you are a good candidate to go ahead and navigate your divorce on your own. If even one of the six questions touches on a situation that describes you accurately, you have a lot at stake that could greatly affect your future and the future of your children, both financially and emotionally. If you get any part of it wrong, a mistake could cost you and end up making things much harder for you.
How can I keep the cost of my divorce as low as possible?
If your budget is limited, you can help keep costs down by listening to and following your attorney’s instructions and being as helpful and forthcoming as possible providing information. Spend time outside the attorney’s office working through problems and try to find ways to reach agreement in a timely manner. If you need help, seek a licensed mental health professional. Many have specific expertise working with divorcing couples.
What is a “Common Law Marriage?”
California does not recognize common law marriages.
In the event of domestic violence, what should a person do?
First and foremost, it is important for the person to get away from the aggressor and in the event of domestic violence, contact the police immediately. Often, local police officers and sheriffs have received special training with respect to domestic violence and can be extremely helpful to a victim. In addition to local law enforcement personnel, city and district attorneys may be very helpful in providing referrals to other local assistance – emergency shelters such as “safe houses,” counseling, and legal assistance. Of course, assistance with prosecution is available.
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Can a court order alimony payments after a divorce or separation?
Yes. As part of the judgment of dissolution or legal separation, a court may order one spouse to pay the other alimony.
How long will a spouse have to pay (or be able to receive) alimony?
Depending on the particular circumstances, alimony is ordered to be paid during the time period that the supported spouse is seeking education, training, and marketable job skills in order to establish a career or otherwise become self-supportive. Consideration of the responsibility for providing child care during the early years of a minor child factors into this determination.
If the supported spouse is of advanced age or suffers from a medical problem which would prevent this spouse from obtaining a career (thus preventing him/her from becoming self-supportive), alimony could be “permanent” (but subject to future modification based upon a material change in circumstances).
If there was a long term marriage (in California, for example, a marriage of ten years or longer is considered a long term marriage), a court may have continuing jurisdiction over the issue of spousal support. With continuing jurisdiction, a court may change the amount or duration of alimony payments from one spouse to the other any time in the future (although a material change in circumstances is usually necessary).
In addition, typically a court order for alimony terminates upon the death or remarriage of the supported spouse.
Do fathers always pay child support? Do men always pay alimony?
When a family goes through a divorce, there is no longer any assumption that dad is the primary income earner, that mom will “automatically” get primary physical custody and receive child or spousal support. Where mom is the primary breadwinner, there is a legal expectation that the wife would be responsible for child support and possibly spousal support.
Every state has its own guidelines for determining spousal support, and child support. Factors generally include the length of the marriage, one of the spouse’s need for financial support when the household is divided, and the other spouse’s ability to pay.
What are some common arrangements for child visitation?
Child visitation, often pursuant to a parenting plan, can take a variety of forms or schedules. Some common arrangements include some of the following provisions:
- Alternate weekend visitation with the non-custodial parent, including “three-day holidays”
- Mid-week visitation with the non-custodial parent
- Sharing of the child during periods of school recess -winter, spring and summer
- New Year’s Eve, Easter, Rosh Hashanah and Yom Kippur, Thanksgiving, and Christmas with one parent or the other in alternate years (click here for a useful article on holiday visitations)
- Mother’s Day with Mother, Father’s Day with Father
- Alternate years on the child’s birthday
- Open telephone contact by the parent who does not have actual physical custody of the child
- Exchange of a few days of visitation here and there as mutually agreed without the need for a change or modification of the court order
Can my ex-spouse take the kids out of town without my permission?
In most circumstances you cannot take minor children out of your state without the other parent’s express written consent. If you’re planning to leave town, the other parent should be informed immediately. Don’t forget and then expect him or her to sign off on your plans the night before the trip. Provide the schedule and contact telephone numbers.
Are there any special considerations for a second marriage?
Second marriages always require special planning regarding prenuptial agreements and estate planning issues. This planning should be done up front at the time of the marriage. It is a wise idea to get both a family law attorney and a financial planner involved. Both spouses need to talk openly with their adult children and other family members about their wishes when they are competent to do so. If possible, everyone should be brought together at one time.
Who has the right to take the family pets in a divorce?
Laws governing pets consider them personal property, under human ownership and control. Court decisions are made to protect the interests of the owners, not the animals. This is unlike child custody, where the best interests of the children prevail.. Most pet owners need to work out a contract between themselves instead as part of their divorce settlements. As with so many aspects of a divorce, taking control and coming to an agreement about the decisions governing your own life are far better in most cases than letting a judge decide for you.
Do I need a prenuptial agreement?
There are some specific circumstances where a prenuptial agreement is a must-have:
- If you anticipate inheriting family property, if you want to make sure the property, heirlooms, or money stays in the family without the need for a complex tracing back to the date of the actual inheritance.
- If you or your partner comes into the marriage with extensive debt, such as college loans, at least if you want to make sure you don’t become responsible for payment after a divorce or the other spouse asks for reimbursement for payments made.
- If you own an existing business, especially if there are other partners or family interests involved.
- If you have children from prior relationships, if you want to ensure certain assets pass to your kids upon death or divorce, or provide for a college education or other needs if they are minors.
- If your income has the potential of a large increase, at least if you don’t want to potentially share it with anyone in the form of support after divorce.
What if I’m over 50 and getting divorced, are there any special issues?
So called “grey divorces” do pose unique challenges. Where one spouse retired early or stayed at home while the other worked, the financial realities can be quite serious. While California calls for keeping the financially disadvantaged spouse at the same standard of living through the division of assets and spousal support, the ex receiving support is usually eventually expected to earn his or her own income. Finding employment can be very difficult for those over age 50. Beyond retirement age, pensions, individual retirement accounts or 401(k)s, and Social Security retirement benefits can all factor in. The lesser earner of a divorcing couple is entitled to Social Security retirement benefits based on the higher earner’s work record, as long as the marriage lasted at least 10 years.
What do I need to do if I want to change my name legally after a divorce?
The legal process itself is not all that involved. If you intend to change your name, your final divorce decree can include a clause about officially dropping your husband’s name and returning to your maiden name, or any previous name you used (another married name, for instance). This is by far the easiest and should not cost you anything extra. However, if you want to change to an entirely new name, you will need to file a petition for a change of name as it’s called in California, or a similar document in your state. You can read more information and get a checklist for changing your name here.