Family Law FAQ

Family Law & Divorce FAQ’s

Q. If I am in the military stationed in San Diego, California, can I file for divorce in California?

A. Yes. You must meet the residency requirements and be present in the State of California for six months prior to filing. If you are absent temporarily because of military orders, but have been in the state or stationed here for six months, you may still file. Individuals that do not meet the residency requirement and that are present in the State of California can file a Petition for Separation.

Q. If I am active duty on deployment, can my wife take our children out of the State of California, where they have been born and raised?

A. No. Without a court order or an agreement, the parties cannot change the residence of the children. An active duty military member can file pleadings with the court to stop a move-away that is contested.

Q. If my wife has left with the children from the State of California and set up residence in another state, can she file for divorce there?

A. A military wife can only file for divorce in another state if she meets the residency requirements. The state where the children have had residence for the last six months is the proper venue for issues involving child custody and visitation. There are exceptions to this rule. Please call the law firm for more information.

Q. Can I get a spouse removed from the residence?

A. This is a frequent request of the court. If the request is done properly and documented, the court will grant a kick-out order.

Q. If I have inherited money, can my spouse go after a portion of those moneys?

A. Inherited money is generally separate property. It is unavailable to a spouse for division. The court may utilize the income derived from the inherited money in a request for child support. The court may also look to private assets relative a party’s ability to pay attorney fees.

Q. How do I get permission to move my children from the State of California if I wish to relocate and I have filed for divorce?

A. Move-away cases that are contested require court intervention. A party that wishes to relocate must file a motion in the California court, seeking permission for the move-away. A move-away will be permitted if the parties reach an agreement and sign a document indicating that the move-away or relocation of the children is not being contested. In the absence of an agreement, however, the parties must utilize the court system.

Q. Can I avoid paying spousal support?

A. Spousal support is frequently ordered in cases where there is a disparity of income between the two parties. There is no guideline that is mandated by the courts but rather a suggested amount of support, which the court considers. Spousal support is based on such factors as standard of living, length of marriage and income of the parties. An individual, who is paying spousal support, may be able to obtain orders from the court for job contacts or a vocational evaluation.

Q. Do I have to pay child support if I have the children 50% of the time?

A. Child support is based generally on two factors. The first factor is time share, that is how much time the child spends with each parent (expressed in a percentage) and the second factor is the income of each parent. Hypothetically, if both parents earn the same amount of money and shared the children on a 50/50 time share, there would be no child support, likely ordered by the court.

Q. When are attorneys fees ordered?

A. The court may order attorneys fees to be payable from one party to the other if there is a disparity of income and if there is a need for attorneys fees on the part of the requesting party. The court will often look to community property assets to determine if attorney’s fees can be paid from the community. Attorneys’ fees can be ordered at the first hearing or at subsequent hearings, including trial.

Q. How long does it take to get a divorce?

A. In order for a divorce to become final, a 6 month period of time must occur from the date of service from the opposing party before Judgment can be realized. Court proceedings and contested issues can make this time period much longer.

Q. What do I do if the child that is born during marriage is not mine?

A. The parties in a divorce action can request paternity tests to determine the paternity of a young child. There are time limits, however, that exist relative to this request. If you have questions in this area, please consult our San Diego divorce attorneys.