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Question:
I am getting divorced. Do I need an attorney?
Answer:
It is definitely a good idea to hire an experienced family law attorney when getting a divorce. An attorney will protect your rights, as well as the rights of your children. He or she will help you navigate the laws in your state concerning marriage, divorce, marital property, child custody and visitation, and family support.
Question:
What are the legal grounds for obtaining a divorce?
Answer:
Every divorce case that is filed in the state of California must declare the grounds in which the divorce is to be granted. The grounds for divorce must be substantiated with evidence or testimony otherwise the court may dismiss the case.
In California, dissolution of a marriage may be based on either of the following grounds; (1) Irreconcilable differences, which have caused the irremediable breakdown of the marriage. (2) Incurable insanity.
Irreconcilable differences are those grounds which are determined by the court to be adequate reasons for the marriage to not continue and which makes it evident that the marriage should be terminated.
A marriage may be terminated by reasons of incurable insanity only upon ample proof, including competent medical or psychiatric testimony from a professional, that the spouse was at the time the petition for dissolution of marriage was filed, and actually remains, incurably insane. (California Code - Sections: 2310)
Question:
Who determines how assets are divided in a divorce?
Answer:
Generally, spouses are free to divide their property as they see fit in what is called a "marital settlement agreement," which is a contract between the husband and the wife that divides property and debts and resolves other issues of the divorce. Although many divorces begin with a high level of acrimony, a substantial majority are settled without the need for a judge to decide property or other issues. However, if the division of property cannot be settled, then the court must make the determination.
In California, marital property is divided equally unless a premarital agreement specifies otherwise.
Question:
How do courts determine who gets custody of children in a divorce?
Answer:
If the parents cannot agree on custody of their child, the courts decide custody based on "the best interests of the child." Determining the child’s best interests involves many factors, including living environment, supervision, work schedules, etc…
Question:
What is joint custody?
Answer:
Joint custody has two parts: joint legal custody and joint physical custody. A joint custody order can have one or both parts.
Joint legal custody refers to both parents sharing the major decisions affecting the child, which can include school, health care and religious training. Other considerations under these types of custody agreements can include: extracurricular activities, summer camp, age for dating or getting a job, and methods of discipline.
Joint physical custody refers to the time spent with each parent. The amount of time is flexible, and can range from a moderate period of time for one parent, such as every other weekend, to a child dividing the time equally between the two parents’ homes. In situations where the time spent with both parents will be divided equally, it helps if the parents live close to one another.
Question:
How is child support determined in a divorce or paternity case?
Answer:
Usually, the parent without the child the majority of the time will pay support, but if both parents share time with the child equally, the parent with the greater income usually pays support. The support may be reduced based upon the amount of time the payor spends with the child. Some states also cap support at a certain income level. If a parent is intentionally not working or is working at less than he or she is capable of earning, the court can "impute income," which means setting support based upon what the parent is capable of earning rather than actual earnings.