Divorce, Legal Separation and Annulment
Q: What is the difference between divorce and legal separation?
JPC: Both a divorce and legal separation permit the court to divide marital assets and debts, determine the custody of children, set child and spousal support and issue protective orders. In the case of a legal separation, however, the parties remain married. A decree of divorce will end a marriage.
Q: Why would someone want to seek court orders and still remain married?
JPC: Some spouses hope for a reconciliation with their mate. Others harbor a religious objection to divorce. In a third case, legal separation can be used if a party does not meet California residency requirements for a divorce. By the way, a legal separation requires the consent of both parties. A divorce does not.
Q: Are there any other ways to end a marriage?
JPC: Yes. In certain cases, the court can find that one party was induced to marry another by fraudulent means. This is called an annulment. It is best to talk to a lawyer about this option since the grounds for an annulment are very narrow.
Q: What are the requirements in California for divorce?
JPC: One party must be a resident of the State of California for six months and a resident of a particular county three months prior to the date the divorce petition is filed. Divorce is "no fault" in California meaning that one does not have to prove any particular grounds in order to obtain a divorce. And as I stated before, the court will grant a divorce if one party requests it. Consent of both spouses is not required.
Q: How soon will I get my divorce?
JPC: There is a six month waiting period which begins to run from the date the other party is served with the summons and petition. Six months and a day later, assuming that the court has entered a final judgment, your divorce would be final.
Q: What is involved with a final judgment?
JPC: The court must rule in five main areas: (1) Divide the marital property and debts; (2) Determine child custody and visitation rights; (3) Set the amount and duration of child and spousal support; (4) Award attorney fees and costs; (5) Issue personal restraining orders. Once these five issues have been dealt with, a final judgment will be issued. Keep in mind that not all cases include these five areas especially when children are not involved.
Q: What happens if the final judgment takes longer than six months to obtain?
JPC: Normally, the divorce will be delayed until the final judgment is issued. In some instances, it is possible to have the court separate the two and grant a divorce before the final judgment is completed by obtaining what is called a "bifurcation." Parties who wish to remarry in a short period of time are usually the ones who request a bifurcation.
Q: I gave birth to a child while I was unmarried? What are my rights?
JPC: When a child is born to parents who are not married, it is often necessary to file what is called a "paternity" case. The purpose of this type of case is for the court to make a finding of who is the child's biological father. Once paternity is established, then the court can grant custody, visitation and child support orders.
Q: Can a mother get child support from the father without a finding of paternity?
JPC: No. The court has no authority to force a person to pay support unless they have been found to be a biological parent.
Q: Are women the only people who file "paternity" cases?
JPC: Actually, no. Unmarried fathers often find themselves in an equally difficult position. Without a finding of paternity by the court, fathers have no way to enforce custody or visitation with their child. Because of this situation, fathers will often file a "paternity" case to establish themselves as the biological parent so that they may enforce their custodial rights.
Q: If the parties disagree on who is the father of the child, how does the court decide?
JPC: The court uses DNA blood testing to determine contested cases. The blood testing is very accurate and most parties will settle the issue of paternity once the test results are complete.
Q: Do I need an attorney to file for paternity?
JPC: No. Your local county District Attorney will file a paternity action if you open a case with their office. However, you should note that a District Attorney will only participate in the case in order to obtain a child support order. The county will not obtain custody and visitation orders on your behalf.
Q: If I hire a private attorney, can I force the other party to pay my fees?
JPC: In all family law cases including paternity, the court has the authority to order the opposing party to pay a contributive share of your attorney fees and costs if the other party earns a greater monthly income.
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