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Divorce-Related Fast Facts

1. The Divorce Process: The attorneys at the Law Office of David A. Esquibias begin the process by filing your Petition for marital dissolution and Summons with the clerk of the superior court in the county where you or your spouse live. We then serve your spouse with copies of the Petition and Summons, and a blank Response. The Summons is a paper that notifies your spouse that you are filing for a divorce and that he or she has 30 days in which to file the Response. In the Response, your spouse then indicates what needs to be resolved by the court. For example, he or she might object to your request for spousal support or sole custody of your children. After divorce is filed, the following steps may occur:

Disclosure: Our divorce attorneys work with you to complete disclosure declarations that provide information about your income, expenses, assets and debts-and have them officially delivered to your spouse. (The court will later require proof that you served your spouse with a Final Disclosure Declaration, unless it is waived.)

Temporary orders: If necessary, our divorce attorneys ask for a hearing so that a judge can decide any temporary child custody, visitation, support, requests for attorney fees or restraining order disputes. Such hearings are called Order to Show Cause hearings.

Agreement: Our divorce attorneys will work on permanently resolving the issues raised in the dissolution. If an agreement is reached, you may not have to appear in court and a judgment based on your agreement can be entered. Our divorce attorneys will prepare and submit on your behalf a sworn statement to the court saying that the marriage is ending because of irreconcilable differences.

Trial: If an agreement is not reached, our experienced and qualified divorce attorneys will represent you in court for a trial in which a judge will make the decisions.

Default: If your spouse does not file a Response, our divorce attorneys will on your behalf request a default and proceed to a default hearing to obtain a judgment. You will be asking the court to enter a judgment consistent with the requests in your petition.

Judgment: A judgment can be entered at any time, but you would not be divorced until six months after your spouse was served with the petition. The court does not automatically end your marriage when the six months have passed. You cannot legally remarry until you obtain a judgment even if the six months have passed. If you want to remarry or have some other reason for wanting to be single at the end of six months, a judge can dissolve your marriage even though some property or other issues are not yet settled.

Not all of these steps will be necessary in every case. For example, you may simply reach an agreement and get a judgment without the need for temporary orders of any kind.

2. Rules During The Divorce Process: here are temporary restraining orders (rules prohibiting both of you from doing certain things) that go into effect automatically when the divorce process begins. For example, neither of you will be allowed to take your minor children out of state without the other spouse's written permission or a court order. Nor will either of you, in most instances, be allowed to cancel or change the beneficiaries on your insurance policies or transfer property. And you will be required to notify your spouse before any out-of-the-ordinary spending-and be prepared to account for such expenditures to a judge.

3. Obtaining Financial Information From Spouse During Divorce: There are several legal procedures. For example, the attorneys at the Law Office of David A. Esquibias might take depositions (interview your spouse or other witnesses in person under oath), send interrogatories (written questions) or submit an Inspection Demand (a request that your spouse turn over certain important documents). To gather information from others (an employer, bank or school, for example), our divorce attorneys will subpoena them to appear with the documents in court or at an attorney's office. Or, you may choose to rely on the disclosure declarations that you and your spouse are both required to fill out.

4. Division of Marital Property: California law recognizes that both spouses make valuable contributions to a marriage. Most property will be labeled either community property or separate property.

Community property. All property that you and your spouse acquired through labor or skill during the marriage is, at least in part, community property. You and your spouse may have more community property than you realize. For example, you may have an interest in pension and profit-sharing benefits, stock options, other retirement benefits or a business owned by one or both of you. Each spouse owns half of the community property. This is true even if only one spouse worked outside of the home during the marriage-and even if the property is in only one spouse's name.

With few exceptions, debts incurred during the marriage are community debts as well. This includes credit card bills, even if the card is in your name only. Student loans are an exception and are considered separate property debts.

Community property possessions and debts are divided equally unless you and your spouse agree to an unequal division-or unless there are more debts than assets. Keep in mind that if your spouse agrees to pay a community debt and fails to do so (or files for bankruptcy and discharges the debt), you may have to pay the creditor.

Division of possessions and debts can be complicated. The attorneys at the Law Office of David A. Esquibias will advise you before entering into any such agreement. And if you have already signed away your rights to certain property, our divorce attorneys will determine if you are bound by the agreement. Finally, if you and your spouse cannot agree on the division of your debts and possessions, a judge will make the decision for you. He or she may not split everything in half; instead, the judge might give each of you items of equal value. For example, if your spouse gets the furniture and appliances, you might get the family car.

Separate property. Separate property is property acquired before your marriage, including rents or profits received from these items; property received after the date of your separation with your separate earnings; inheritances that were received either before or during the marriage; and gifts to you alone, not you and your spouse. Separate property is not divided during dissolution. Problems with identifying separate property occur when separate property has been mixed with community property. (The community may acquire an interest in separate property over time.) However, you may be entitled to receive your separate property back even if it has been mixed. There are complex tracing requirements where property has been mixed. The divorce attorneys at the Law Office of David A. Esquibias are experienced and qualified to unravel comingled assets. Debts incurred before your marriage or after your separation are considered your separate property debts as well.

California divorce law requires you to submit to the court schedules of community and separate property. Determining the character of property can be complicated and mistakes can be costly. Our attorneys will advise you to make sure that your property is correctly listed as community or separate.

5. Spousal Support/Alimony: Spousal support is the term for alimony in California. Spousal support is money that one spouse pays to help support the other after the filing of a dissolution. Our skilled divorce attorneys will work with you to make sure the appropriate amount is paid. To determine the amount of spousal support, the judge will consider such factors as the standard of living during the marriage, the length of the marriage, and the age, health, earning capacity and job histories of both individuals. Perhaps neither of you need spousal support. Since circumstances can change (you could become ill, for example, or lose your job), our attorneys may ask the judge to reserve jurisdiction to order spousal support in the future. This will allow you to seek additional support at a later time. Under certain circumstances, you or your spouse may go back to court and ask the judge to change the amount of support. The judge also can order a wage assignment directing a spouse's employer to pay spousal support. The attorneys at the Law Office of David A. Esquibias will fight for your rights.

6. Child Custody and Support: If both parents agree on a parenting plan, our attorneys will draw up the agreement to be signed by both parents and represent you before the court to ensure the parenting plan becomes an enforceable court order. Traditionally, child custody is categorized as follows:

Joint legal custody. The parents share the right and responsibility to make important decisions about their children's health, education and welfare.

Sole legal custody. One parent has the right to make decisions related to the health, education and welfare of the children.

Joint physical custody. The children spend time, equally or not, living with each parent on a regular basis.

Sole physical custody. The child lives with one parent and the other parent has visitation.

For custody to be awarded to someone other than a parent, however, the judge would have to believe that giving custody to either parent would be detrimental or harmful to the children.

Both parents are both responsible for supporting your children if they are under age 18. And this duty may extend beyond age 18 if certain conditions are met. In addition to child support, parents may be required to pay other expenses for the children, such as child care, medical care and/or travel between households. The amount of support to be paid by one parent to the other is based on established guidelines. Our attorneys will guide you to determine who will pay such support, and how much is to be paid. If necessary, our attorneys may obtain from the court a wage assignment order. This is an order that requires a parent's employer to make child support payments directly from the parent's wages. If the parents are unable to agree on custody or visitation, a judge will make the decision for you. There are several steps to finalizing a custody plan. However, custody and visitation can be decided on a temporary basis if there are immediate problems. The attorneys at the Law Office of David A. Esquibias will aggressively and competently represent you in all aspects of Child Support.

 

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