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Things to Know - Frequently Asked Questions (FAQ)

About Divorce, Summary Dissolution, and Legal Separation

Divorce: In California, a divorce (also called dissolution of marriage or dissolution of domestic partnership) ends your marriage or domestic partnership. The ending result of a divorce is that you will be single and you can marry again or you become a domestic partner again.

A divorce is warranted when a party to the marriage has irreconcilable differences with the other spouse. Furthermore, no one has to give the court any other reason or prove anything. There is no guilty or not guilty spouse, from the court's perspective, making California a no-fault divorce state. As such, the focus of the court is issuing a ruling, called a judgment, containing court orders that are fair from the court's perspective and follows family law statutes.

Either spouse can decide to end the marriage, and the other spouse, even if he or she does not want to get a divorce, cannot stop the process by refusing to participate in the case. If a spouse does not participate in the divorce case, the other spouse will still be able to get a default judgment, and the divorce will go through.

Summary Dissolution: Some couples have only been married for less than 5 years. For those couples, they can ask for a summary dissolution, as long as they also meet other requirements. Those requirements include: (1) both parties sign a joint petition for dissolution of marriage, (2) the couple has no children born of the marriage, (3) the couple has not adopted any children while married, (4) there is no present pregnancy, (5) neither party of the marriage owns or has any interest in real property, (6) the total assets, not counting automobiles, acquired during marriage cannot exceed $40,000, (7) the total debts acquired during marriage cannot exceed $6,000, and (8) neither party of the marriage has premarital assets worth more than $40,000. With a summary dissolution, there is no trial or hearing.

California Residency Requirements: For a spouse to file for divorce, either one of the spouses of the marriage must have (1) lived in the State of California for at least 6 months and (2) lived in the county for at least 3 months before filing for divorce. If a spouse wants to start their divorce in one county in California, but does not meet residency requirements, he or she can file for a legal separation, and then amend their petition to ask for divorce after they meet the California residency requirements.

Legal Separation: In California, instead of a divorce, a married couple can get a legal separation. Typically, a party to a marriage seeks a legal separation rather than a divorce because of cultural or religious reasons. A legal separation does not end a marriage. As such, someone who is legally separated cannot marry or enter into a partnership with someone else. But, those persons who are legally separated can decide for themselves issues about money, where they want to live, and all property issues. A spouse does not need to meet California's residency requirement to file for a legal separation. If a spouse files for a legal separation, then the filing spouse, or even the other spouse, may later be able to file an amended petition to ask the court for a divorce if the California residency requirements are satisfied. Furthermore, the process of obtaining a legal separation is identical to the process for obtaining a divorce.

Minimum Process Time: Because of the State of California's mandatory waiting period, the divorce, summary dissolution, and legal separation process will take at least 6 months from the date the person filing for divorce officially lets his or her spouse know about the divorce. Of course, the process can take longer, and it typically does.

Issues to Resolve in a Divorce: When a divorce or legal separation is commenced, the court can resolve the following issues: (1) custody and visitation; (2) child support; (3) spousal support; (4) the division of the property (real or personal) of the marriage; (5) the division of the debt and obligations of the marriage; and (6) attorney fees. In addition, there are many other domestic issues that the court can resolve or that can be resolved outside of court by attorneys.

What Nakos and Nakos Can Do for You: The divorce process involves many forms and legal requirements. You don't want to make a mistake filling the forms out or skip a required step. If you choose to prepare the forms yourself, we can review them for you before you file them, so you are assured that you are filing the correct forms and filling them out in such a way as to preserve your rights. Or, we can prepare the forms for you, so you are assured they are prepared right. In addition, we can represent you through the entire divorce or legal separation process, guiding you towards getting the results you want.

About How Long Does It Take?

Ideally, the Superior Court of California can rule that the marital status of a couple is terminated no earlier than 6 months after the petition for dissolution of marriage has been filed with the court. The same 6-month minimum requirement exists for a legal separation and for the termination of a registered domestic partnership.

However, given the fiscal difficulties that the State of California is experiencing, it typically takes longer than 6 months for the court to handle any petition for dissolution of marriage action.

In addition, the court's calendar takes precedence over any other calendar. Hearing and trial continuances routinely occur during a divorce action. As such, rarely does a divorce action proceed as fast as anyone expects it to proceed.

About Child Custody and Visitation

There Are 2 Kinds of Child Custody:

1) Legal Custody

2) Physical Custody (Visitation Time)

Legal Custody:

1) School or Child Care
2) Religious Activities

3) Medical Care, including Mental Health Counseling, Dental, Etc.
4) Travel

5) Where the Child(ren) Will Live
6) Extracurricular Activities

Legal custody may also be joint legal custody, where both parents share the rights to make the important decisions such as those listed above. It is best when parents can work together to make the decisions. To avoid problems, parents may want to go to a co-parenting class. Lists of local co-parenting classes can be found by a web search. If you cannot reach an agreement with the other parent, you may need to go to court. Nakos and Nakos can help you prepare the paperwork for the court and represent you through the process, which includes mandated mediation and any appearance in front of a judge.

Physical Custody: With physical custody, the parents work out a visitation schedule detailing when the child(ren) spend time with each parent. If you cannot work out a visitation schedule with the other parent, then you can go to court to have the judge order a visitation schedule. First, you will have to go to mandated mediation to try and work out a plan with a skilled mediator. If your child is over 6 years old, he or she will talk to the mediator. If no agreement can be reached in mediation, the mediator will make a recommendation to the court. You will then go to the courtroom to see the judge, and he/she will listen to each parent (or their attorney) as to what the parent thinks is best for their child(ren). The judge will then make orders as to what he/she believes is in the best interest of the child. It is best for your child(ren) if you can work out a visitation plan without court intervention. Nakos and Nakos is very skilled at working with both parents (or if the other parent has an attorney, with that attorney) to work out a parenting plan that is fair and in the best interest of the child(ren). If an out-of-court parenting plan cannot be agreed to, Nakos and Nakos can fight for what you think is best for your child(ren).

Court: Be very careful in preparing the paperwork for court. The mediators and judges read the paperwork. You do not want to say the wrong things, and you want to organize what you write in a way that the mediator and the judge will understand and care about. We can help you prepare the paperwork, even if we don't represent you in court, or you can have us prepare the paperwork and represent you in court.

About Child Support

Child Support: Child support is one of the more contentious issues in family law. Although parents want what is best for their children, there never seems to be enough money to go around between 2 parents. Sometimes parents can come to an agreement about child support without intervention from the court, but other times it may become necessary to go to court to have the court determine child support.

Child support is largely controlled by statutes and programs such as DissoMaster. The determination of the amount of child support is controlled by such things as each parent's income, the amount of time each parent has visitation with the children, the amount of health insurance that a parent pays, and so forth.

Nakos and Nakos are proficient in accurately determining a parent's income and analyzing the other factors that go into state-mandated child support calculations. Ms. Nakos has her degree in finance from the University of Southern California, and Mr. Nakos has a Ph.D. in business organization and worked at the University of Southern California for over 20 years in the area of corporate accounting and cost studies, which required a large amount of forensic accounting.

Nakos and Nakos will navigate the circumstances surrounding your child support challenge and will work to settle the matter with the other parent (or his or her attorney), yet are fully prepared to fight for you in court, presenting the facts of your case accurately and aggressively.

About Spousal Support

Just as with child support, spousal support is one of the more contentious issues in family law. There are 2 time frames for spousal support:

1) Temporary Spousal Support

2) Permanent Spousal Support

Temporary Spousal Support: At the beginning of the divorce, one party may be entitled to spousal support (formerly called alimony). The party who earns more money is the one who may have to pay spousal support. At this temporary stage, the court can use a support calculator, often called DissoMaster. There may be a lot of issues that you want the court to know about your case, but at the temporary stage, the court typically defaults to using a support calculator. One factor the court may consider at this temporary stage is the duration of the marriage. For example, if you were just married 6 months, the court may not order any spousal support. It is a good idea for you to have a consultation with Nakos and Nakos to help you determine the spousal support order in your case.

Permanent Spousal Support: The term permanent does not necessarily mean that spousal support will go on forever. The term is used to differentiate this stage of spousal support from temporary spousal support. Permanent spousal support is determined at or near the end of a case by the court. The court is not allowed to use the support calculator at this stage. The court must consider factors, such as the following: (1) the length of the marriage or domestic partnership; (2) what each person needs based on the standard of living they had during the marriage or domestic partnership; (3) what each person earns or could be earning if they had a job; (4) the impact of a spouse working has on the children; (5) the age and health of both parties; (6) whether a spouse or domestic partner helped the other get an education, training, career, or professional license; (7) whether there was domestic violence in the marriage or domestic partnership; (8) whether a spouse's or domestic partner's career was affected by unemployment or by taking care of the children or home; and (9) the tax impact of spousal support. Since permanent spousal support can go on for some time after your divorce is final, it is very important that you take this stage seriously.

Nakos and Nakos is experienced at negotiating and litigating permanent spousal support. Nakos and Nakos highly suggest you at least come in for a consult on this issue.

About Date of Separation

A key piece of information the court needs in any divorce or legal separation action is the date of separation, which is the date that the spouses believe their marriage is over. The date of separation is the essential date for determining property interests. Earnings, debt obligations, and property acquired by a spouse after the date of separation are considered to be that spouse's separate property, while property acquired before the date of separation is considered community property. For example, if you earn a bonus or are given stock options after the date of separation, they are most likely your separate property (there are some exceptions). The date of separation may not be that easy to determine, and the other spouse can pick a different separation date. If you and your spouse do not agree on the date of separation, the court will look at 2 different tests to determine the separation date: a subjective test and an objective test.

Subjective Test: Physical separation is not enough to show that you are separated. Some people live separate from each other but do not intend to end their marriage. For example, if one party gets a job in a particular state and the other party cannot join him/her because the children go to school in the other state, then they are not separated if they don't intend to end the marriage. The subjective intent to divorce is the date you decided you no longer wanted to stay married.

Objective Test: In addition to the subjective test, the court will look at the conduct of the spouses toward each other. Usually when one party moves out of the home with the intention of ending the marriage that is a good indication of the date of separation, but a spouse does not have to move out to set the date of separation. Spouses, especially in this economy, are finding that they still have to live together even though they have no intention of remaining married. If spouses are still living together, the court will look at such things as did they travel together, did they still celebrate holidays and birthdays together, did they have sexual relations with each other, etc. to determine the objective portion of the date of separation test. There are many other things that show conduct the court will look at.

The combination of findings from each of these tests will be used by the court to establish the date of separation. This date will then be used going forward throughout the divorce or legal separation process for the purpose of property division.

On your first visit to Nakos and Nakos, we will discuss the subjective and objective facts in your case to help you determine what you should put as your date of separation on the required form.

About Division of Assets and Debts

Overview: Assets that are acquired during marriage and debts that are incurred during marriage, with a few exceptions, are characterized by the courts as community property assets and debts that must be equally divided between the parties by the court during a divorce or legal separation. By law, each party must fill out a set of paperwork called a Schedule of Assets and Debts and Income and Expense Declaration, collectively known as a disclosure, and give that to the other party. That document is typically used as an outline of what assets and debts there are to divide. Sometimes parties feel like it is an invasion of their privacy to list all of their assets, especially separate property assets, but you must be open and honest with your disclosure. If not, you jeopardize your final judgment being set aside for fraud, along with other penalties.

Equal Division: Though the community property asset and debt division should be equal, that does not mean you literally have to divide each asset and debt. For example, if there are 2 credit cards with roughly the same amount of debt, one party can assume one credit card and the other party can assume the other credit card. If there are 2 bank accounts with roughly the same amount, one party can keep one account and the other can keep the other account. If in the division, for example, one party is assuming a bit more credit card debt than the other, then the party with the lower debt might equalize the division by paying some money out of the bank account he/she is awarded. (Remember, credit card companies and other creditors do not have to honor what you agree to with the other party. The creditor can still come after you for the debt the other party says he/she will take on, so be careful in dividing debt). It is not uncommon that the division is not exactly equal. That is up to you, but if you cannot agree, then the court will divide them for you. Sometimes it is not worth the attorney fees it will cost to fight for a precisely equal division. That is a decision you can make.

No Division: Separate property is property you had before marriage, acquired after marriage with your separate property (such as your post-separation earnings), or were given as a gift or by inheritance. You do not need to divide that with the other party, but you do need to list it on your Schedule of Assets and Debts.

Be careful. There are unique areas of asset and debt division, such as division of pensions, personal injury awards, reimbursement if you used your separate property towards the purchase of a community house, reimbursement if you use community assets to pay for a spouse's separate property, etc.

Nakos and Nakos can prepare your Schedule of Assets and Debts and help you in all areas of asset and debt division. We will work with the other side to achieve a fair division that you feel good about and, if no agreement can be reached, we will fight for your rights in court.

About Attorney Fees and Court Costs

Introduction: Similar to other professional fields (medicine, dentistry, etc.), fees are incurred when individuals utilize the services of an attorney. Attorney fees, like fees in other professional fields, have a range depending on the amount of legal work that needs to be performed. This range starts as low as $1,500. Again, it depends on the amount of legal work the attorney has to perform for the party.

Retainer Fee: In family law, attorneys ask for a retainer amount before agreeing to represent a party, and attorneys require the party to replenish the retainer to some predefined level when the retainer amount falls below a predefined level. Monies resting in the party's retainer account belong to the party, not the attorney. When the attorney performs legal work for the party, monies are only then transferred from the party's retainer account to the attorney's account. When a case closes or the attorney-client relationship ends, any monies still in the party's retainer account are returned to the party.

Hourly Rate and Minimum Time Level: Attorneys bill at an hourly rate. At Nakos and Nakos, our attorneys bill at a $350 hourly rate. There are also paralegal and secretarial billing rates. At Nakos and Nakos, our paralegal rate is $100 per hour, and our secretarial rate is $50 per hour. Many attorneys have a minimum time level they charge for the legal work they perform. For example, some attorneys have a minimum 10-minute time level for telephone calls, a minimum time level of 30 minutes for reviewing correspondence, pleadings, etc., and a minimum time level of one hour for reviewing a case file. At Nakos and Nakos, we do not have any minimum time levels and only charge a client for the actual time spent doing a legal task.

Court and Related Costs: There are other costs related to a legal proceeding besides attorney fees. First, the State of California charges fees for filing (originating) a case, filing motions, filing a Request for Orders, mediation services, etc. If a party qualifies, the State of California will waive the fees they charge. There are also subpoena fees charged by the responding business (banks, credit card providers, police departments, medical providers, etc.) for their production of business records. There are attorney services fees for the official serving of summons, subpoenas, etc. When used, there are also expert witness fees (forensic accounts, vocational evaluators, custody evaluators, forensic medical professionals, etc.). Generally, expert witnesses are the most costly non-attorney fees that a party will incur. Unlike Nakos and Nakos, some attorneys charge a fee for fax services, paper and toner usage fees, etc.

Attorney and Court-Related Fee Recovery: During any family law proceeding, a party can recover the attorney fees and court-related costs they incur from the opposing party if they satisfy specific legal statutes. There are three basic types of fee base recovery statutes: needs based, sanction based, and enforcement based.

Needs Based: There are situations in which one spouse simply cannot afford to be represented by an attorney, while the other spouse has ample financial resources to not only pay their attorney fees, but the attorney fees of the other party. In cases such as these, Family Code Sections 2030 and 2032 allow the financially disadvantaged party to request the court order the financially advantaged party to pay for their attorney fees and court-related costs or reimburse them for the attorney fees and court-related fees that have already been spent. Such attorney fees awards can be as high as the actual costs incurred or required for proper legal representation to some portion (contribution) of incurring costs. The court has broad discretion in making attorney fees and costs awards, and such awards are based off the present circumstances of the parties, their ability to pay attorney fees, and the reasonableness of actually making such attorney fees awards.

Sanction Based: At times during a family law proceeding, one spouse does things that frustrate the policy of the law to promote settlement of litigation and where possible, increases the cost of litigation through reasonable cooperation between the parties and attorneys. In cases such as these, Family Code Section 271 allows the party that is not frustrating the policy of the law to promote settlement (the reasonable party) to seek reimbursement from the party whose conduct is frustrating the policy of the law that promotes settlement (the unreasonable party). This sort of attorney fees award is not needs based, but is designed as a punitive measure against a party that is an intentionally frustrating settlement.

Enforcement Based: At times, one spouse exhibits conduct that violates family law statutes or family law orders; thus, requiring the other spouse to seek help from the court to enforce these statutes and orders. Such conduct includes a spouse refusing to respond to discovery requests or refusing to obey previously issued and valid court orders (child visitation, child support, spousal support, property division, etc.). Family Law Code Sections 292, 3557, and 4720 and Code of Civil Procedure Sections 1211.5, 2015.5, 2023.010, 2025.420, 2030.290, 2031.300, and 2033.290 provide a spouse with methods of enforcement and recovery of their enforcement costs. In cases such as these, the spouse seeking enforcement can request the court order the other spouse to pay all of their attorney fees and court costs related to the enforcement action.