Friday, May 25, 2007

Divorce: Frequently Asked Questions

Divorce help by a Temecula Valley divorce and family law attorney serving the Temecula, Murrieta and Hemet areas of Riverside County:

How long does a California divorce take?

A divorce in California always takes a minimum of six months. This is called a "waiting period." The waiting period in a divorce action is to make sure you and your spouse do not change your mind about going through with the divorce. The courts want to give you time in case you decide to reconcile. Regardless of the circumstances, you cannot get a divorce in California until the six month waiting period has expired.

When does the waiting period begin in a divorce?

The waiting period begins in a divorce once the divorce papers are filed and served. Thus, even if you are your spouse are separated for years, the waiting period does not start until the divorce action is filed and the papers are properly served upon the other party.

Sometimes parties agree to all the terms of the divorce before the six months has run. In this case, the parties can prepare a divorce judgment and settle the entire case before the six month waiting period expires, but they will not be divorced until the six months had run. Even if a judgment is prepared before the six month waiting period expires, the terms of the divorce agreement are still binding on both parties. They are just not free to remarry until the six months have run.

Other times, people do not resolve all the custody, visitation, child support, spousal support, and division of property issues within the six month time period. In this case, a divorce will take longer than the six month time frame because the parties have a right to litigate the terms of their divorce and resolve the issues before a judge.

How do I decide between a legal separation and a divorce?

There are several differences between a legal separation and a divorce. For instance, there is no waiting period in a legal separation, and you do not have to be a legal resident of the state. All property is divided, child support is ordered, spousal support is orderd, custody and visitation are determined, and a judgment is entered at the end of the case, except that the parties are not given a divorce at the conclusion of the case, both people have to agree to a legal separation.

Do I have to file for legal separation in order to protect my assets?

A common misperception is that the spouses have to file for a legal separation in order to protect their assets. This is not true. For information as to how to protect your assets in a divorce, please see articles on what to do before a divorce and divorce advice.

What is a bifurcation?

In situations where litigation lasts more than the six month waiting period, it is possible to "bifurcate the status" of the marriage. This means that the court can award you a divorce as soon as the six months are up even though you have not resolved the remaining issues of division of property, spousal support, child support, child custody, etc. You then litigate those matters at a later date. A bifurcation is not common, and only needed if the divorce is relatively complicated and one party already has plans to remarry.

How long until I get to my divorce trial?

The divorce process begins once the paperwork is filed in court. Nothing happens in the process unless someone moves the case along. The courthouse is simply a large file cabinet that holds, but does not process, your paperwork for you. They simply stamp the documents and keep the records. This means that no one in the courthouse will tell you what needs to be done or how to do it. Either you have to figure it out on your own or hire a lawyer to help you.

The first step in the divorce process is filing and serving the documents. This starts the waiting period. The next step is to determine whether temporary relief is needed. In other words, if you need some type of financial support, an order to sell your house, an order to determine custody of the children, or an order allowing you to move out of the state, you need to ask the judge to make the order. This is done by filing an "Order to Show Cause."

What is an Order to Show Cause (OSC)?

An Order to Show Cause, also called an OSC, is an appointment to see the judge. It is obtained by filing paperwork with the court, and in the paperwork you ask for specific, temporary relief. That relief is only good until time of trial. Normally, the relief would be for child custody, visitation, child support, or spousal support. At the appointment (or court hearing) the judge will decide whether he will give you temporary relief by making court orders which are only good until the divorce trial.

What do I do if I was served with divorce papers?

If you are the one who has been served with divorce paperwork, you need to know that you have 30 days to file a "Response" to the divorce with the court. This is a document which tells the court that you are interested in the outcome of the divorce proceedings, that you wish to be notified of any court date, and that you will be participating in the divorce process by appearing in court to help the judge make his/her decisions.

What Happens if I do not File a Response to the divorce?

If a Response to the divorce is not filed, the matter is decided by "default." This means that the court decides the outcome of the case based upon only one side’s versions of the facts. Thus, when there is property or children involved, it is very important to file a Response.

What Happens After I File the Response?

After the initial divorce paperwork is filed with the court, each party then has a right to conduct "discovery." This allows each party to ask the other person questions and may require each party to produce written documentation about his/her income, assets and debts, or about any other information which may be relevant to your divorce case.

What Happens After Discovery is Complete?

After the discovery process is complete in the divorce, the case is ready to be set for trial. At trial, each party will go in how front of a judge and present evidence. After hearing all the evidence in a case, the judge will make a decision and grant a divorce.

How much does the average divorce cost?

There is no way to accurately predict the cost of a divorce. The reason for this is every case is different. Specifically, the cost of a divorce depends on two factors: how complicated the issues are and how much the parties litigate. The two most expensive issues to litigate in family law are child custody and determination of cash flow in a business. If you and your spouse are able to resolve custody and visitation issues before ever filing the divorce action, and if you hire a competent divorce and family law attorney, you will probably be able to get through the divorce process with relatively little expense, time and stress.

Is there a way to avoid a divorce trial?

Yes, if both you and your spouse are able to agree on all issues in your divorce, meaning child custody, child visitation, child support, spousal support, division of property, division of any pension plans, and division of debts, you can avoid litigation. You can simply have someone write up a divorce judgment, sign it, and file it to complete your divorce.

My husband is not paying me child support, do I have to let him see the children?

Yes. Child custody and child support are not related. If your husband is not paying you child support, you need to obtain a court order requiring him to do so. If you have a court order and he is not honoring it, there are ways to make him pay. In California, child custody is determined by what is in the best interest of the children. This is based upon a number of factors, including which parent is more likely to allow the other parent to have frequent and continuing contact with the children. If you do not allow your husband to see the children simply because he is not paying you child support, you will risk losing custody of your children.

If my spouse cheated on me, can I get sole custody of our children?

That depends. California is a no-fault state. This means if your spouse had an affair during the marriage, this is not a basis to deny your spouse visitation, nor is it, in and of itself, a reason to obtain custody of the children. However, if your spouse in usable to care for your children because your spouse is frequenlty not home, comes home late at night, or is otherwise neglecting the children, the court may find that you are best able to care for the children and award you custody of the children in the divorce.

If the judge makes a mistake at the divorce trial, can I fix it?

Not necessarily. Normally, the findings in a divorce trial made by a judge, and the orders contained in your divorce judgment are final and cannot be changed. However, there are significant exceptions to this rule, and you should consult with a family law attorney as soon as you discover any error.

If you have any questions about a divorce issues, or any other family law matter, and you live in the Temecula, Murrieta, or Hemet areas of Riverside County, California, please contact one of our family law attorneys to set up a free consultation: (951) 816-9543, or visit our websites for more information:,, or


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