FAQs (click on each topic to jump to the answers)
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Commonly Asked Divorce Questions:
Clients want to know about what the process will involve and how the courts will decide important matters such as child custody, child support, spousal support, division of assets, and how their attorney will work with them as the case proceeds.
Why do I need a lawyer?
The laws relating to families have changed dramatically over the past few decades, becoming increasingly complex. Laws continue to be reexamined and changed by judges and legislators as the legal issues in divorces, child custody disputes, child support, domestic violence, and other family law matters evolve to reflect our ever changing society.
Family law has become entangled in national debates over family structure, gender bias, and morality. Few legal areas are as emotionally charged as family law, primarily for the litigants, but also for the lawyers and judges involved in cases and even the public at large. This is particularly true in divorce or dissolution, which remains a contentious and ever-changing area in law, constantly changing as families and society evolve.
Keeping up with these changes is challenging, as it requires constant monitoring of new cases and laws. Having an attorney on your side helps ensure your case is presented with the most up to date legal basis available. Family law attorneys can provide valuable counsel and objective representation in what is often one of the most emotionally charged situations a person can face.
What is the legal divorce process like?
Although some divorces are very simple and can be handled with a minimum amount of red tape and delay (if there is no significant property involved and the couple has no children) most divorces are far more difficult and may take many different courses.
The entire process can take from a few months to as long as several years. The main determinant of how smoothly the process will go is the level of cooperation between the parties and their willingness to compromise.
The following is a basic outline of the divorce process.
- One spouse contacts a lawyer, who assists in the preparation of a petition for
divorce, the legal document that sets forth the reasons why the divorce should be granted
and outlines the relief sought.
- Petition is filed with the court and served on the other spouse, together with a summons that requires that spouse’s response.
- The served spouse must respond within 30 days or it will be assumed that he or she does not contest the petition, in which case the petitioner will be granted the requested relief. The response, or answer, must set forth the relief that the answering spouse requests.
- The parties, through their attorneys, engage in “discovery,” during which they exchange documents and other information relevant to deciding the issues in the divorce such as property division, spousal support, child support, etc.
- The parties may attempt to reach a settlement based on the full disclosure to each other of all relevant information. The settlement process can be initiated voluntarily or facilitated by the parties’ lawyers or a neutral third party, such as a mediator.
- If a settlement is reached, the agreement encompassing the terms of the settlement is submitted to the court.
- If the judge approves the agreement, he or she issues a divorce decree that includes the terms to which the parties agreed. If he or she does not approve it, or if there has been no agreement, the case will go to trial.
- At trial, the attorneys present the evidence and arguments for both sides, and the judge decides the unresolved issues, including child custody and visitation, child and spousal support, and property division, and grants the divorce.
- Either or both parties can appeal the judge’s decision to a higher court.
How does a court decide which parent will get custody of a child?
When the parents cannot agree on a custody arrangement, the court will make the decision for them after considering the totality of the circumstances, with the overriding consideration being the child’s best interests.
In many cases, a consideration of these factors results in awarding custody to the parent who has been the child’s primary caretaker. Although this is often the child’s mother, any preference for the mother strictly on a gender basis is outmoded.
To make that determination, the court considers:
- The child’s age and physical or mental health
- The parents’ physical and mental health;
- The parents’ lifestyles
- Any history of abuse
- The emotional bonds between the parent and the child
- The parent’s ability to give the child guidance
- The parent’s ability to provide the basic life necessities
- The child’s routines, including home, school, community, and religious
- The willingness of one parent to encourage a healthy relationship with the other
- If the child is above a certain age, the child’s preference.
How is the amount of child support calculated?
Each state has developed guidelines that help establish the amount of child support that must be paid. The guidelines vary significantly from state to state, but they are all generally based on the parents’ incomes and expenses and the needs of the children. In some states, the guidelines allow judges greater discretion in determining the amount of child support that must be paid, but in other states any variance from the guidelines must be carefully justified or it can be readily overturned.
It is important to remember that the guidelines are just that – guidelines – and they are not fixed amounts that must be applied under any and all circumstances.
Judges are free to deviate from the guidelines when there are good reasons to do so. If one party or a child has higher than average expenses, the amount can vary. Or if the court determines that the paying parent is voluntarily earning less than he or she could for the purpose of minimizing the child support obligation, the judge can calculate the amount of child support based on what the payer is capable of earning.
Judges will review a financial statement completed by each parent that lists all sources and amounts of income and expense before issuing an order. If any of the listed items changes significantly, either parent may go back to court and ask for an increase or decrease in the amount of child support ordered.
Despite the variations from state to state, there are some general factors that are almost universally considered by judges issuing child support orders, including:
- The child’s standard of living before the parents’ separation or divorce;
- The paying parent’s ability to pay;
- The custodial parent’s needs and income; and
- The needs of the child or children, i.e. education, daycare, and medical expenses.
Under what circumstances will the court award spousal support?
The obligation of spouses to support each other does not necessarily terminate when they divorce. If the divorce will leave one spouse with very little income and the other with enough to contribute to the low-income spouse’s support, the court will usually award alimony, at least temporarily.
Historically, spousal maintenance was typically awarded to homemaker wives, to be paid by breadwinning husbands, but that is no longer always the case. Now, either spouse may be awarded alimony if the other has the more substantial income and the recipient spouse’s income is insufficient to support him or her at the level to which the spouses were accustomed during the marriage.
Spousal support is often awarded in cases in which one spouse has put his or her education or career on hold in order to raise the parties’ children while the other achieved a higher income. In such cases, the alimony will often be temporary, providing income for the period of time that will enable the recipient spouse to become self-supporting. This temporary, or rehabilitative, spousal support enables the spouse receiving it to further his or her education, reestablish himself of herself in a former career, or complete childrearing responsibilities, after which time he or she can be self-sufficient.
Spousal support may be temporary. However, this award may be permanent if one spouse is unable to get a job paying a sufficient wage, however, due to health issues or advanced age.
The amount and duration of alimony depends on several factors, including:
- The length of the marriage
- The age of each spouse
- The health of each spouse
- The ability of each spouse to be self-supporting, with minor children factored in
- The income of the primary breadwinner
- Standard of living the parties enjoyed during the marriage.
What kinds of assets are divided in divorce?
The parties (or the judge may decide) in a divorce can agree to the division of all marital or community property owned by the parties. This generally includes most of the property the couple acquired during the marriage, including the marital home; a second or vacation home; home furnishings and appliances; artwork; vehicles; money and investments; pensions; and spousal-owned businesses.
The value of intangible property is also often divided. Intangible property includes the value of a patent or invention, the value of the celebrity status or name, the goodwill value of a business, and the value of a professional degree earned by one spouse. The value of intangible assets will generally only be divided when both spouses made a substantial contribution to that value, either directly or indirectly.
It is not always easy for a spouse to identify all of the assets that may be available for valuation and division, especially if the other spouse is less than forthcoming with the details. This is where the parties’ lawyers can help. Through the legal process called discovery, the parties’ attorneys exchange documents and information that reveal income, assets, and liabilities. Documents such as tax returns, personal financial statements, bank account statements, brokerage house records, real estate records, loan applications, and business records are used to establish the parties’ financial situation.
Do I need a contract and do I need to have an attorney if I am arranging assisted reproduction with a third party?
Arranging for assisted reproduction can include a surrogate, egg donor, sperm donor, or embryo donor, as well as the prospective parent(s). Whenever a third party is involved in an assisted reproduction procedure, it is extremely important to have a contract to protect each party, and to properly identify and establish matters such as the parties‚ respective rights, liabilities, obligations, and risks While not mandatory to have an attorney, an attorney is extremely important in properly advising the parties on current legal and other issues in the assisted reproduction arrangement, including contracts, to be consistent with the current standard of practice, to establish the parentage of the intended parent(s), and more. Each side should be engage separate legal counsel experienced in assisted reproduction matters. Procedures, laws and trends are always subject to change, and a matter as important as family formation is best supported with the assistance of a qualified attorney.
Once sperm, eggs and/or embryos are donated, do the recipients have complete discretion over their use or disposition?
In a word, no. California, as do many other states, has specific laws that must be considered. This makes it critical for involved parties have a very specific and clear contract, prepared by qualified and experienced legal counsel. In California, it is "unlawful for anyone to knowingly use sperm, ova, or embryos in assisted reproduction technology, for any purpose other than that indicated by the sperm, ova or embryo provider's signature on a written consent form." California Penal Code, Section 367(g). Accordingly, the recipients of sperm, eggs and/or embryos are restricted in their use and/or ultimate disposition (i.e., donation for own use only, cryopreservation for future use, donation to research or conception, and/or destruction).
Can the parties be anonymous to each other in an assisted reproduction arrangement?
Yes. It is very common in egg donation, sperm donation, and embryo donation matters for the parties to be anonymous to one another. Also, while anonymous surrogacy arrangements are quite rare and a bit tricky, they have been successfully accomplished in California.
Are any adoption procedures required when a surrogate, egg donor, sperm donor and/or embryo donor is involved?
Adoptions are not performed when only an egg donor and/or sperm donor is involved in the assisted reproduction arrangement. For embryos, although a form of "embryo adoptions" may be performed, there are no laws or court cases in California requiring any adoption procedure, as the embryo donation may be done by contract only. For surrogacy, while an adoption can be performed, most county superior courts in California permit a procedure in which parentage is established by a judgment entered at court. Once a certified copy of the judgment of parentage is obtained and provided to the California Office of Vital Records, that office will prepare the birth certificate with the intended parent(s) indicated as the sole parent(s) of the child. Working with a qualified attorney who explains available procedures, legal risks, and procedural timing is the most effective way to achieve the desired result.
Have there been any court cases in California dealing with surrogacy?
California has case precedents which are extremely favorable to surrogacy, and which make California an excellent and highly desirable jurisdiction for a surrogacy arrangement. Again, it is essential that qualified counsel, one who stays current with developing case law and recent judgments, be consulted on any surrogacy matter.
Are intended parents who reside outside of California able to engage in assisted reproduction arrangements within California?
Yes, provided the reproductive assistant is a California resident. It is both permissible and common in California for intended parents from other states and/or countries to come to California to engage in assisted reproduction arrangements and to benefit from the protections offered in California, with the proviso just mentioned. Nevertheless, it is essential to consult with legal counsel who knows the requirements of the state and/or country where parents reside, so as not to run afoul of any laws which might apply to their own circumstances.
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What financial arrangements are available?
Sue A. Moravec provides a clear, concise legal commitment letter and contract to each client, and is happy to review this and any questions in advance of signing to proceed. In support of her commitment to excellent communications, her standard practice is to advise clients in advance of the costs anticipated, outlining an initial assessment of what, if any, filing fees, court costs, and legal fees should be anticipated. Her practice is keep clients informed in advance of the financial impact any changes they request may have on their anticipated legal costs.
How do I arrange for Sue Moravec to speak at my event or group?
Sue Moravec is available to speak to professional or community groups, as a keynote speaker, or for media interviews on her professional areas of practice. Please contact her office to learn more, and to discuss any calendar scheduling requests.