Sarah Gurney Attorney Sebastopol CAMedaiton for divorce, Sebastopol, Santa Rosa, CA
Mediation for confilct resolution















Commonly Asked Questions About Getting a Divorce in California

1. How long will it take for my divorce to be completed?
A divorce is not a quick process. The soonest you can terminate your marital status is six months and one day after service of the Petition on the Respondent. Other issues in the case can take a longer or shorter time to resolve. The timing of resolution may depend upon the amount of information to gather, the emotional state of the participants, and the complexity of the issues to resolve. The Collaborative Process can result in an agreement in weeks or months. In contrast, litigated cases can take a number of years to conclude.

2. Will I automatically be divorced in six months?
In California, you can obtain a dissolution of your marriage (formerly called a divorce) no earlier than six months and one day from the date the Petition is served on the Respondent. If the other issues of the divorce (i.e. property division, support and parenting issues) are not resolved within this six month time frame, you are entitled to request a "bifurcated Judgment." This is a legal phrase meaning that your status as a married person is separated from the other issues in your case, and a Judgment terminating your status as a married person is obtained. This does not happen automatically. If you want to terminate your marital status before the other issues of your case are resolved, you must affirmatively ask the court for relief. It will not magically happen at the six month mark.

3. What is the difference between a "legal separation" and a "divorce"?
The main difference between obtaining a legal separation and obtaining a divorce is that marital status is not ever terminated in a legal separation. Some parties choose to pursue a legal separation for personal reasons such as religious beliefs or health insurance concerns. They still, however, must address the same issues as parties undergoing a divorce (i.e. support, parenting, division of marital assets and debts). Also, to file for a divorce in a certain county, you must reside there for at least three months. If you have not lived in that county for three months, you can first seek a legal separation (which has no residency requirements for filing) and then later amend your Petition to file for a divorce once you have resided in the county for three months.

4. What protects me from having my spouse take all of the money/assets?
While a dissolution proceeding is pending, there are certain duties and restraining orders which apply to both spouses. At the beginning of every divorce case, the court automatically issues restraining orders. These are found on the back of the Summons. We also include them in the agreements that start the Collaborative Process. Generally, you are prohibited from doing any of the following: a. Taking minor children out of state without prior written consent of the other parent or court order; b. Making changes regarding your insurance, including cancelling, borrowing against, cashing, or changing the beneficiaries. This includes all types of insurance; c. Transferring, selling, or concealing assets or using them as security for a loan, without the consent of the other spouse or court order; and d. Making certain types of changes in your estate plan. In addition to these restraining orders, you have a fiduciary duty to manage and control community property properly. This duty is one of "the highest good faith and fair dealing." You must provide information or access to information which affects transactions regarding community property. If you obtain a profit from community property without the other spouse's consent, you hold that benefit as trustee for the other spouse.

5. How long will I be entitled to receive or be obligated to pay spousal support?
Under the law, the duration of spousal support is always within the discretion of the court. As a general framework, however, if the period between the date of marriage and the date of separation was less than ten years, you may be entitled to or required to pay support for approximately one half the length of the marriage. For example, if you were married for six years, spousal support may be paid for three years. If you were married for a period of greater than ten years, this is considered a marriage of "long duration", and the duration of support could extend for a much longer period of time. If litigated, a court would usually retain the ability to make decisions in the future about changes to the amount and duration of spousal support. In the Collaborative Process, the length of time that spousal support is paid is typically one of the questions that is discussed and agreed upon.

6. How are spousal support and child support calculated?
In the Collaborative Process, you and your spouse are able to determine how you want to calculate support. Different people consider different factors, but typically we look at the income, expenses, resources available, and standard of living. In the absence of an agreement, the following is how a court will determine support: Child support is calculated by using a "guideline" formula. Attorneys and court systems in California use a computer program which calculates guideline child support. This guideline formula takes into consideration the respective incomes of each party, the percentage of time the child has with each parent, and various other factors that affect an individual's income. The "guideline" amount is followed by the court except in rare and unusual circumstances. Spousal support during the period from separation until Judgment is entered is also calculated by a computer program. However, support determined in the Judgment and thereafter is based on the following circumstances:

a. The standard of living enjoyed by the parties during their marriage;

b. The income or earning capacity of each party;

c. The marketable skills, job training or education needed for the supported spouse to develop or increase earning ability;

d. The extent to which the supported party's present or future earning capacity is impaired due to periods of unemployment to care for the children and the household;

e. The extent to which the supported party contributed to the attainment of education, training, or career of the paying party;

f. The needs of each party based on the standard of living established during the marriage;

g. The obligations and assets of each party;

h. The duration of the marriage;

i. The ability of the supported spouse to engage in gainful employment without interfering with the interests of dependent children in that spouse's custody;

j. The age and health of the parties;

k. Documented history of domestic violence;

l. The immediate tax consequences to each party;

m. The balance of the hardships to each party;

n. The goal that the supported spouse be self supporting within a reasonable period of time. For marriages of less than ten years, this is generally one-half the length of the marriage;

o. Criminal conviction of an abusive spouse;

p. Any other facts the court determines are just and reasonable. In determining long-term support, the court is not permitted to use a formula. The possible range of support which could be ordered is broad because the judge who makes the decision has substantial discretion.

7. What happens to gifts or inheritances or assets I owned prior to marriage?
Under the legal model, a gift or inheritance is the separate property of the party receiving the gift or the inheritance. It is not a community property asset that a court will be allowed to evenly divide, unless the gift or inheritance is intended for both spouses. Separate property also includes assets owned prior to marriage. Subsequent actions of the gift recipient can alter the ownership of or rights associated with the ownership of separate property. In the Collaborative Process, you and your spouse decide how to distribute property. In some marriages, the understandings regarding gifts or inheritances have not been clear and become a subject of discussion in the Collaborative Process.

8. Do I ever have to appear in court?
It is not necessary to appear in court unless you and your spouse have to rely on a judge to make decisions about support, parenting and property division. If you and your spouse are able to settle these issues, the Marital Settlement Agreement, which sets forth the division of the property, support and parenting arrangements, can be submitted and approved by the court without a personal appearance by the attorneys or the spouses/parents.

9. How do I help our children deal with this process?
Talk with your children and be open and honest, without disparaging the other parent. Saying or implying negative things about the other parent in front of your children is harmful and will cause long term harm to your children and their relationships with you and the other parent. There are also many resources available in Sonoma County to help children deal with the transition. Programs for children are offered through Kids Turn and Kaiser, and there is an abundance of reading material available. Enclosed in this notebook is an index of helpful books and articles.

10. What is the difference between "legal custody" and "physical custody"?
Legal Custody refers to the right and the responsibility to make major decisions relating to the health, education, and welfare of a child. Physical Custody refers to the periods in which a parent physically cares for the child.

Sarah Glade Gurney . Family Law Attorney . 130 Petaluma Avenue, Suite 2B . Sebastopol, CA 95472 . T: 707.823.6500 F: 707.823.6501