Question

Do I need a lawyer to get divorced in California?

David A. Patton

Answered by:
David A. Patton

Located in San Jose, CA
Lonich & Patton LLP

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Answer

A person is not required to have an attorney in a California divorce. However, it is highly recommended that you retain an attorney in order to ensure that all rights and interests are adequately protected. There are significant legal, emotional, financial and practical ramifications that may result from a “do-it-yourself divorce.” An experienced family law attorney can help navigate not only the legal aspects, but also the emotional and practical issues. Divorce can impact many aspects of a person’s life, even areas not originally implicated or predicted by a person representing him or herself. Due to the wide range of potential issues and areas affected, it is in everyone’s best interest (as well as the children’s) to have a trusted, knowledgeable family law attorney advocating for your rights.

The process of divorce is different in each county and differs depending on the specific issues in each case. Divorce can be complex, and the court system is foreign to most. An experienced family law attorney can help you navigate those steps. The typical requirements for filing a divorce in California are as follows:

  1. File a Petition for Dissolution and Summons (Family Law) with the court in your jurisdiction and have it served on the appropriate party in accordance with state law. 
  2. Complete and serve Preliminary Declarations of Disclosure. This requires documentation of all marital and separate property assets and debts. Both parties must exchange this information. 
  3. As the case moves along and depending on whether a response is filed, a default judgment may be an option or, if all parties are cooperative, move towards a final settlement. 
  4. After the Petition is filed, the court will set a Status Conference where the judge checks on the procedural milestones of each case. 
  5. If you have children, the custody process may involve orientation, mediation, numerous assessments, evaluations, Judicial Custody Conferences (JCCs), Case Resolution Conferences, Mandatory Settlement Conferences and/or, ultimately, a trial if a settlement cannot be reached. 

Throughout the divorce proceedings, there may be various instances where emergency motions or temporary orders must be filed. An experienced attorney will know how to navigate the court system and ensure that your rights are protected. Per California law, there is a statutory waiting period of six months before your divorce can be finalized and approved by the court. 

A final settlement should include agreements on personal property, real property, all assets including bank accounts, child support, spousal support, custody, visitation and any debts, including credit card debts. Common questions arise in the following areas:

Child Custody and Visitation

In California, there is a presumption that it is in the children’s best interest to have a continuing relationship with both parents. As such, the court favors joint custody agreements. However, each case is evaluated by the court on its own facts. Custody and visitation is often a highly contested area of divorce and an area where people have many questions. For example, how will you split custody with your spouse? Who will pick the children up from school? Who will get weekends? Who will get the holidays? What if there are substance abuse and domestic violence incidents – does this change the way the court will view my child custody dispute?

Support: Spousal and Child

The amount of child and spousal support awarded by the court varies depending on the factors of each case. The factors that the court considers usually include the income of each party, the timeshare with the minor children, the tax filing status of each party, whether a party is living in the family residence, retirement contributions made by each party and other factors that the court deems just and equitable. Support is usually paid monthly, on the first of each month. In all child support hearings and temporary spousal support hearings, the court will rely on a guideline support calculation, meaning a computer program such as DissoMaster or Ex-Spouse will be used as a guide in assisting the court to set the monthly support number. Support is a contested area of divorce, and a number of questions may ensue. For example, what will the court order me to pay in spousal or child support? What will the court allow me to receive in spousal or child support? What does the court consider as income to be included in support calculations? What if a party has been a stay-at-home parent during the marriage and your spouse was the primary breadwinner? Does child support vary depending on the amount of time the children spend with you? Having an experienced family law attorney advocating for you during a support hearing may assist you in getting the most advantageous support award. 

Property Division

The division of property includes more than just the family home. The court will divide all assets and debts of the marriage, as well as possibly some assets and debts from before or after marriage, depending on the facts of the case. Property to be divided includes bank accounts, personal property, real property, stock options, pension plans, life insurance and retirement accounts. How will the court split the assets? California is a community property state, meaning all income, assets and debts acquired during marriage are presumptively equally shared between the parties and split equally upon divorce. Separate property, however, will not be split. Property division becomes more complicated if funds are commingled (mixed) during marriage, as is often the case of married couples.

Prenuptial and Postnuptial Agreements

Prenuptial agreements are made prior to marriage. Postnuptial agreements are made during the marriage. These agreements are not necessarily binding. The court will look at various factors to decide if the agreement, or a part of it, is void. An experienced family law attorney will be able to tell you whether or not the agreement is likely to be enforceable.

Mediation

Depending on your jurisdiction, mediation may be required. For example, in Santa Clara County, mediation is mandatory for custody cases. What happens during mediation? If mediation is not required, is it recommended? Are mediation agreements binding?

The issues listed above are a sampling of the types of questions that may arise during a California divorce. Retaining an attorney to represent you during your divorce means having an advocate on your side that is well-versed in California family law, is accustomed to preparing detailed documents, will attend court hearings if necessary and is familiar with the court system and judges in your jurisdiction. At Lonich & Patton, our attorneys have decades of experience handling complex family law matters and we offer both full-service and consulting options. We have multiple certified family law specialists (as certified by The State Bar of California Board of Legal Specialization) and have over 75 years of combined experience in handling issues involving divorce, child custody, spousal support, child support, property division and domestic violence.

Whether you decide to retain an attorney or not, it is best, at the very least, to consult with one before you begin your divorce process. Often, self-represented litigants will find themselves in unfavorable situations that could have easily been avoided by an experienced attorney. Lonich & Patton offers a free, 30-minute consultation and we welcome you to contact us for a risk-free evaluation of your situation and how to advance your best interests during this difficult time. Resolving family law matters is often highly emotional and during these trying times, the attorneys at Lonich & Patton are here to help you protect your family, your assets and your future. Please contact us at 408-553-0801 – we will be more than happy to meet with you. 

Answered 12/17/2013

Disclaimer: This answer was provided by an attorney selected to Super Lawyers, and is intended to be an educated opinion only. This answer should not be relied upon as legal advice, nor construed as a form of attorney-client relationship.

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