Frequently Asked Questions
Q: What is the difference between a Divorce and a Legal Separation? The main difference is that in a legal separation, the parties’ marital status does not end. The parties can have the Court make orders regarding the children, divide their property, make orders for support and even restore wife’s former name. Both parties must agree to a legal separation. A spouse cannot prevent the other from obtaining a divorce.
Q: What is a Nullity? A judgment of nullity may be granted only when a marriage is adjudged void or voidable under certain conditions. A marriage is void in cases of incest and bigamy. It may be voidable if one of the parties is of unsound mind, a minority; mistaken belief that spouse is deceased, fraud, force or physical incapacity.
Q: What if we had a Pre-Nuptial Agreement? A premarital agreement may alter the characterization of property acquired by the parties, generally during the marriage. The Uniform Premarital Agreement Act, enacted on January 1, 1986, governs these types of agreements.
Q: Where do I file my divorce action? Under California law, the Court acquires jurisdiction over you in a dissolution (divorce) action if you have been a residence of California for at least six months. To file your action in a particular county, you must have been a resident in that county for at least three months.
Q: How long does it take to get a divorce? This is a difficult question that can be effected by numerous factors, including but not limited to the complexity of the case, the cooperation of the parties and the availability of the Court.
Q: Do I need to hire a lawyer? Whether or not to hire an attorney is a personal choice each litigant will have to make. Keep in mind, however, divorce cases may involve many very complicated and emotional issues. A person who attempts to represent themselves may find they are at an extreme disadvantage, which may cost them a significant loss of rights. I believe each party contemplating divorce should, at the very least, consult with an attorney at the onset of the case to discuss how best they should proceed.
Q: Will the Court appoint a lawyer to represent me? In most cases, the family court will not appoint a party to a divorce case an attorney. The Court can, however, apportion the costs associated with the divorce action between the parties, based on the parties’ needs and ability to pay.
Q: Can I have a jury trial in my divorce case? Unlike most civil litigants, those in marital actions do not have the inherent right to a jury trial. Although the Court has discretion to order factual issues to be tried by a jury, it rarely does so, probably due to the fact that any jury’s verdict would only be advisory.
Q: How much will a divorce cost? The costs associated with a divorce action vary from case to case. In addition to the costs of an attorney, each party will incur fees with the Court, such as their filing fee, the costs associated with filing a motion, in some cases a fee for the Court reporter, investigation fees where investigations may be necessary and in some jurisdictions, the costs associated with continuing a matter.
Q: Will the Court order my spouse to help pay for my attorney? In some cases yes. Any award of attorney fees or costs in a marital action must be based on a determination of a party’s ability to pay taking into account the parties’ respective incomes and needs. The purpose of a fee award is to ensure each party has access to legal representation to preserve his or her rights.