1. I will be legally able to remarry six months after my divorce is filed… correct?
In the State of California, marital status cannot terminate for at least
six months and one day from the date that the opposing party is actually
served with a Petition for Dissolution of Marriage. This period of time
is a statutory "cooling off" period. Additionally, simply because
the Petition for Dissolution of Marriage was filed and served, does not
"automatically" cause marital status to terminate after six
months if the case has not been completed.
If the case has been completed in full, and all filing requirements have
been achieved in advance of the six month mark, a Judgment of Dissolution
of Marriage can be filed and entered prior to the six month date, however,
even though the Judgment is filed and entered, marital status will not
terminate until that six month elapses from date of service. The Judgment
will indicate the date on its face when marital status terminates.
If the case is still in progress at the six-month mark, either party may
file a motion to "bifurcate" the case to achieve a "Judgment
– Marital Status Only" to terminate marital status, while the
balance of the issues in the case either settle or proceed to trial as
reserved issues. The motion is not "automatically" granted,
as many requirements must be met in advance of the motion being granted,
some simple, some complex, depending upon the nature of the case. Substantial
concerns can occur relative to health insurance, pension, and retirement
considerations, together with an entire host of other concerns which will
be different in each case.
2. I can withhold visitation when child support is not paid… correct?
The answer is unequivocally no, as the right to receive child support payments
and the right to exercise visitation/contact are considered as independent
legal rights enforceable by a court order. It is the duty of the Court
to protect the child's right to have unfettered, consistent and uninterrupted
contact with each parent. Accordingly, one may not withhold a child's
contact with the other parent as a remedy to deal with unpaid support.
There are other remedies and enforcement procedures available for unpaid
child support including, but not limited to, contempt proceedings and
wage assignments. A party that engages in self-help by withholding contact
between the other parent and child, may very well risk violating any in
place visitation court orders issued by the judge creating a risk of a
contempt action and/or a change of custody to the other parent.
3. Can I reduce my child support obligation if my prior mate remarries?
Unless your prior mate has actively suppressed his or income as a result
of remarrying, as a general rule, new mate income is not a factor that
will support a request for a reduction in child support, as the new mate
has no responsibility for your child's support.
4. Will my child support obligation/payment be increased if I remarry and
my mate has income?
Unless you have actively suppressed your income after re-marrying, as a
general rule, new mate income is not a factor that will support a request
for an increase in child support, as the new mate has no responsibility
for your child's support.
5. If my personal expenses increase (a big car payment, a big mortgage
payment, etc.) can I seek a child support reduction?
California Superior Courts are mandated to use a child support formula/guideline
for child support. Primary factors in determining child support are, as
follows: the gross income of each party, times share percentages, dependency/tax
deductions, health insurance costs, daycare costs, and other considerations
relative to each particular case. Insofar as child support is treated
as a primary financial obligation, the Court will not take into consideration
other lifestyle expenses and personal spending habits and elections as
an excuse to reduce and/or defeat child support obligations. So, electing
to have a big car payment will not factor into a Court's child support
determination and, a big mortgage can actually increase your support obligation
(property tax and mortgage interest are tax deductions, which shelter
income from tax, which increase net income, which can, in turn, increase
6. How is child custody determined?
Responding in a very simplistic fashion, initial child custody decisions
are based on a "best interests" standard, i.e. what is in the
best interests of the child(ren). Accordingly, when the parties are unable
to formulate a parenting plan on their own, the court will determine what
would be in the best interests of the child(ren). Subsequent, post-judgment
custody determinations may require a "substantial change in circumstances"
in determining custody issues.
7. Do I need to be married ten years to get an interest in my mates pension/retirement benefits?
Your length of marriage has absolutely no bearing on the division of community
property. There is a rebuttable presumption that all assets acquired during
the course of marriage (assets acquired between the date of marriage and
the date of separation) are community property which must be divided equally.
8. My name isn't on his/her credit card so I don't owe any part
of that debt… correct?
There is a rebuttable presumption that all debts incurred during the course
of the marriage are community debts that will be equally divided by and
between the parties and/or go onto the marital balance sheet. Accordingly,
if the debt was incurred during the marriage, it does not matter (within
reason) what was purchased or which party's name is listed on the
9. The party that moves is the party that provides for and pays the costs
of transportation, correct?
Each case is different in terms of facts, distances moved, and finances.
As a general rule, where the parties remain reasonably local to each other,
the parties will be required to equally share in the actual transportation
to the extent that they will meet half way for pick-ups and drop-offs,
or the receiving party will provide the transportation. When train and/or
airfare comes into play as the parties are no longer reasonably local
to each other, the duty to pay for the cost of travel will most likely
be determined by the relative incomes of the parties. If the parents have
relatively equal incomes, transportation cost will usually be shared.
Where a substantial disparity in income exists between the parties, the
court may deem it necessary to apportion the travel costs between the
parents. Accordingly, no "fault" will be attributed to the moving
party as a general rule.
10. I don't like the ruling, so we can appeal, right?
Either party may appeal any legal ruling, assuming that the Court made
a legally incorrect decision. However, there is a substantial difference
between a legally incorrect decision and that fact that you simply disagree
with the ruling of a judicial officer. The burden of the appealing party
is to convince a higher court to review a lower court's ruling based
upon an appealable error justifying a reversal in whole or in apart. Appellate
law is technical, frequently costly, and can often take a very long time
in terms of when the matter is reviewed and ruled upon. A family law expert
in appeals should be consulted prior to making any such decision.