California Divorce Guide
Divorce is never easy, but there’s also no reason to make it any more difficult
than it needs to be for you and your family.
Moshtael Family Law is committed to finding win-win solutions for the families
we work with, and we work expeditiously to help you resolve your matter
as soon as possible. As you begin to contemplate getting divorced and
starting a new chapter for you and your family, we hope that this guide
will provide answers to some of your questions and serve as a reference
throughout the process.
Contact us for a complimentary consultation if you have any questions, if you need
assistance in understanding your rights and obligations in divorce, or
if you need help navigating the divorce process in Orange County. We have
helped thousands of families to resolve their matters thoroughly, efficiently,
Common Legal Terms
Alimony: A financial provision for a spouse ordered by the court. This is also known as
Annulment: An annulment nullifies a marriage – it is a legal action that confirms
that a marriage was invalid because a party is of unsound mind, too young
to consent, or the marriage was forced or fraudulent and a variety of
Child Custody: The responsibility for the care of a child awarded by the court during
divorce or separation proceedings.
Child Support: A financial arrangement following a divorce that ensures children in a
divorce are properly provided for by a spouse, regardless of custody.
Divorce Decree: This is the court order regarding a divorce that lays out the terms of
the divorce-related to the division of assets, custody, and any other
Dissolution of Marriage: Dissolution of marriage is a more formal term for a divorce, it is the
termination of a marriage by legal action.
Full Custody: A custody situation where one parent has the majority of the custody responsibility
for a child.
Joint Custody: Custody of a child that is shared by both parents.
Marital Assets: Any property including houses, cars, and insurance that was acquired during
the course of a marriage.
Marital Settlement Agreement (MSA): A contract that divides debts, assets and properties, and details spousal
support and child custody arrangements in an
Paternity: Refers to determining who is a person’s father.
Postnuptial Agreement: A written agreement between a couple following their marriage which delineates
ownership of assets and property should a marriage end in divorce.
Prenuptial Agreement: A prenuptial agreement is a contract that a couple creates and agrees
upon before a marriage or civil union that delineates ownership of assets
and property should the marriage end.
Spousal Support: Spousal support is payments to an ex-spouse that is awarded by the court
and detailed in the official divorce decree or separation agreement. Spousal
support is also called alimony.
Frequently Asked Divorce Questions
How long will it take to get divorced?
Every divorce is different – it really depends on the issues involved
and how long it takes both parties to come to an agreement on particular
issues. By law in California, there is a six-month waiting period between
the time a party files for divorce and the time the divorce is finalized.
Beyond that, it depends on the degree of conflict or complexity of the
divorce, with some divorces taking a year or longer before they are finalized.
Do we have a contested or uncontested divorce?
There are two primary types of divorce – contested, and uncontested.
If you and your spouse agree on all issues relevant to your case, such
as child custody, the division of debts and assets, and spousal support,
your divorce may proceed as an uncontested divorce. Uncontested divorces
are less common in situations where there are children or sizeable marital
assets, or if you have been married for a considerable amount of time.
It is advisable for you to consult with an attorney even if you plan to
agree to an uncontested divorce – it is very important for you to
protect your interests and know your rights. An attorney can also advise
you on the terms of the marital settlement agreement (MSA) in an uncontested divorce.
contested divorce is one where the parties do not agree about getting divorced at all or
cannot agree upon the terms of the divorce as related to assets, debt,
spousal support, and custody. Entering a contested divorce does not mean
you are going to battle or entering a war zone. While contested divorces
can be intense and emotionally charged, they foster stable and permanent
solutions to prevent a need for post-judgment action by either party.
Factors that contribute to and complicate contested divorce issues include
division of interest in a family business or professional practice, child
custody timeshare disputes, or allegations that a spouse is hiding or
diverting marital assets.
Should I wait until I see if I can reach an agreement with my spouse before
I file for divorce?
Even if you are planning to work with your spouse to come to an agreement
and settle all issues, you should consider filing for divorce, as it then
puts into effect automatic temporary restraining orders, which in essence,
provide protection for you if your spouse tries to liquidate bank accounts,
sell the property, or otherwise mishandle community assets. In addition,
the restraining orders prevent your spouse from moving out of state with
your child without consent or a court order granting permission.
Which property belongs to me and what belongs to my spouse?
California is a community law state, which means that all marital assets
(property acquired during the marriage) are considered to be the property
of both spouses, with very few exceptions. A few of the exceptions include
inheritance or appreciation from earnings or assets obtained prior to
the marriage. In California, it doesn’t matter which spouse earns
more money than the other – all earnings belong evenly to both spouses.
There are certain assets that are harder to negotiate because it is harder
to determine their value. Such assets include stock options, fine art,
collectibles, and antiques. Family businesses and professional practices
are often also more challenging to evaluate and divide evenly. Another
complication in dividing community property can occur if one spouse believes
the other is being irresponsible or wasting money or acquiring debt that
should not be attributed to the marriage.
If I am a stay at home parent, how can I pay for my divorce?
If you are the lower wage earner – i.e. your spouse is the “breadwinner”
in the family, your attorney can ask for an advance payment from your
spouse to help pay for the proceedings. In fact, a judge can order the
spouse who makes more money to assist with the other spouse’s attorney
fees in advance. In this situation, if you are working with a savvy attorney,
they will file for a Request for Order hearing, which asks the court for
interim orders to work out attorney fee advances, as well as other temporary
provisions, such as possession of the family residence and child custody
How much does a divorce cost in California?
Every situation is different, so the cost of a divorce in California will
often depend on how quickly you and your spouse can come to an agreement.
Responsible law firms will help their clients by setting up an estimated
monthly budget and ensuring that their client is comfortable with that budget.
I’m fighting with my spouse all of the time. Can I move out of the house?
Unless you need protection from a
domestically violent spouse, there are risks to moving out of the family residence during a
divorce proceeding. A lawyer can discuss the risks involved with you and
your particular situation, but generally, if you have children and do
not have temporary custody of your children or visitation orders, it may
not be in your best interest to move out of the family home or to remove
your children from the family home. If you do decide to move out of the
family home, it is not advisable to pull your children out of school because
of a move. Not only is this action viewed negatively by the court, but
it could be damaging when you are later negotiating custody.
How will court decide who has custody of our children?
Every situation is different, but in California, the court will look at
the age of the child, the health of the child, the ability of each parent
to care for the child, the child’s ties to their home, school, and
community, and the emotional ties between the child and both parents.
A judge will work to determine what is in the child’s best interest.
Can my child determine which parent he/she wants to live with?
In California, a child who is 14 years or older can share their preference
with the court, and the court must take their preference into consideration
unless it is determined that it is not in the child’s best interest.
How do I know how much money I will get in alimony?
There are several factors that go into determining alimony and spousal
support, including the income of each spouse as well as the earning capacity
of each spouse. If one spouse doesn’t work full time but is employable
full time based on their skill level, the court may decide that they are
capable of earning more and use an estimate of their earning capacity
in their spousal support determination. The court will also consider the
“Marital Standard of Living,” which under law says that the
person receiving spousal support is entitled to live at, or perhaps below,
the standard at which they lived at when they were married, however, they
are not entitled to live beyond the standard of living they maintained
during the marriage.
What Questions Should I Ask My Lawyer?
When you are looking to hire a lawyer to help with your divorce, you should
consider their background, and experience with some of the issues you
anticipate that you will face in your divorce. You will also want to ensure
that they are in good standing with the State Bar of California (you can
check this at www.calbar.ca.gov) and that they have references from satisfied clients.
In addition, you may want to consider asking your lawyer the following
- How long do you think my proceedings will take?
- Do you have experience with the issues my divorce may present?
- How do you bill your clients?
- How do you communicate with your clients and provide updates?
- Have you worked with clients at my income level?
- Will you be working on my divorce or will it be someone else in your firm?
- Do you know the family law judges who we may appear before?
- Are you comfortable representing someone in my situation?
- What will the time commitment be on my end in preparing documents for you
and the court?
- What steps should I take today that will help me be better prepared for
This guide was produced by Moshtael Family Law. If you have any question
or need some guidance during the divorce process, please
contact our Orange County divorce attorneys.