Mansouri Law Offices

Family Law FAQ

We understand you have many questions about legal proceedings and the law. Please read the list of frequently asked questions below to find answers. If you have a question that is not listed here, please visit the "Contact" page and call us for more information. We offer everyone a free consultation.

What is Family Law?
What most people think of as a family law case is a divorce case. Divorce, also known as a dissolution of marriage, is a legal proceeding brought by either spouse to terminate the marriage. Along with the termination of the marriage, other issues are decided such as division of property, determination of the appropriate amount of spousal and/or child support, if any, and child custody and visitation.

However, family law is not limited to divorce cases. Also included under the general heading of "family law" are paternity cases, cases defending or enforcing child support provisions, domestic partnerships, as well as adoption cases.

What are the grounds for divorce in the state of California?
California was the first state to implement the no-fault divorce concept. In California, a dissolution of marriage (divorce) can be granted if the court finds there to be irreconcilable differences that have cause an irrevocable breakdown of the marriage. This means that if a married person wishes to terminate the marriage, he/she can do so, even if the other spouse disagrees.

What are the steps necessary to obtain a divorce?

Step One - Filing of Petition. I help you prepare a petition. I file the petition in the Court house. You are assigned a case number. Your petition identifies you, your spouse and the problems to be addressed; such as division of assets, child custody and spousal support.

Step Two - Service of Summons and Petition. Your spouse is provided the petition and summons. This is known as service. In an uncontested divorce, service by a third party is not necessary and alternatives are available. We can sit down and discuss how best to provide the documents to your spouse that is in the least confrontational manner.

Step Three - Disclosure of Income and Assets. I help you and your spouse prepare “Income and Expense Declarations” and a “Schedule of Assets and Debts.” California law requires each of you to fully disclose all sources of income and all assets to the other spouse. In addition to complying with law, this step builds confidence between you and your spouse to assure that one spouse will not be advantaged over the other. I strongly recommend nothing short of complete and honest disclosure.

Step Four - Terms for Divorce. I assist you in drafting the terms of the divorce on child custody, child support, spousal support and the division of the community’s assets as agreed upon by the parties. Division of assets should not be a major problem if both spouses are confident that full and honest disclosure has been provided. Child custody is frequently defined as the number of overnight stays with each parent. Child support is formula driven by the time of custody as a percentage between the parents and income of each parent.

Spousal support has two components; amount and length of time. Public policy is to achieve self-sufficiency in the lower earning spouse. For short-term marriages, the general rule is that the duration of spousal support is awarded for half the term of the marriage. Marriages over ten years are considered long-term and the California Courts are required to maintain jurisdiction over spousal support until the supported spouse remarries or one spouse dies.

Step Five - Marital Settlement Agreement. I prepare your Marital Settlement Agreement. You and your spouse review and approve. It is may be helpful for your spouse to be represented by his or her own counsel. The Marital Settlement Agreement is a comprehensive document addressing all rights of the parties and identification of the rights that have been waived. The terms of dissolution of marriage are in this document.

Step Six - Submission to Court. The Marital Settlement Agreement and supporting petition and stipulations are submitted to the court. A court hearing is not needed and neither party will be required to make a court appearance.

Step Seven - Judgment is Ordered. The court issues judgment ordering that the marriage be dissolved. Backlog at the courthouse may result in a ten-week waiting period

Does one have to go to court to obtain a divorce?
A court of law is the only way in which one can obtain a divorce decree, dissolution, legal separation, nullity, or other form of terminating a marriage. Each jurisdiction has established its own body of law by which this procedure is accomplished to give it full legal effect. The various states have enacted statutes that govern the procedures by which this is done. Other than the termination of the marital estate the court also has jurisdiction to resolve the other issues which are intertwined in the existing marriage which include but are not limited to, custody and visitation rights, division of property of the marital estate, spousal support, child support, restraining orders, etc.

How long does the process take to obtain a divorce or dissolution?
Under California law, your divorce cannot become final for at least six months from the time that your spouse was served with divorce papers. If there are contested issues involved, it can be several years before the court may resolve all of the issues involved. The decree of divorce has full effect as soon as the judge signs it.

How does the Court determine what is community property?

California is a "community property" state. What this means is that most property that is acquired by either the husband or the wife during the marriage is community property and is essentially owned equally by both the husband and wife.

The opposite of community property is separate property. The most common reason that property is determined to be separate is that it was acquired either before or after the marriage, or was a gift directly to one spouse.

When the marriage is over, the husband and the wife will each get their own separate property and one-half of the community property. For example, when Dick and Jane got married, Dick already owned a 1994 Toyota Camry, Jane already owned a 1995 Honda Accord, and a month after marriage they purchased together a $200,000 home. At the time of divorce, Dick will get his Camry, Jane will get her Accord, and each will get one-half of the value of the home.

These concepts, while seemingly simple, can often be subject to interpretation and require an attorney who is familiar with the legal intricacies to ensure your property is fairly divided.

What if my spouse and I are in agreement as to the terms of the divorce?

Great. It is always better, especially if there are minor children involved, for you and your spouse to agree to the terms of your divorce and have an attorney draft a Marital Settlement Agreement and Judgment and file it with the Court. This is called an uncontested divorce.

In California, divorces are considered "no fault," making it relatively easy to obtain a divorce from the court using the concept of "irreconcilable differences." In an uncontested divorce, the spouses have already agreed to split and have decided on the terms of their divorce, settling such matters as child custody, spousal support, how to divide assets and debts, and other issues related to their marriage. In this case, a lawyer can review your terms to ensure you have covered all the necessary points, then draft and help finalize the divorce for you.

Who gets custody of the children?
It is the policy of the State of California that there be frequent, continuous, and ongoing contact between both parents and the children. However, in most divorce cases, the court will be required to determine which parent shall be the "primary custodial parent."

The standard that the court tries to use is "What is in the best interest of the children?"

Sometimes this is an easy question to answer. For example, if one parent is in jail, then that parent will not get custody of the children. However, other times this question is extremely difficult to answer, for example, when both parents are honest, loving, caring, and responsible.

When both parents are equally fit, then the court will usually place the children primarily with the parent who has been the primary caregiver. The primary caregiver is the parent who is primarily responsible for the everyday needs of the children - in other words, who feeds them, who picks them up from school, who helps them with their homework, etc.
What about visitation with the children?

Occasionally, when both parents are equally fit and each has performed a substantial caregiving role, then the court may order an equal custody split. However, what will usually happen is that one parent will get primary custody and the other parent will get visitation.

Visitation is time for the non-custodial parent to spend with the children. If the parents are friendly and reasonable, then the terms of the non-custodial parent’s visitation may be quite vague and/or undefined. This is because, when the parents can get along with each other, then the court does not need to specify exact pick-up and drop-off times. When the parents are not friendly, then the court will usually order specific pick-up and drop-off times so that each parent is aware of their rights and obligations.

Am I entitled to alimony?
The term "alimony" is actually no longer used in California. This is because alimony means payments made by a man to his ex-wife. What is now used is the term "spousal support." This is because either spouse may be ordered to pay spousal support to their ex-spouse.

The purpose of spousal support is to attempt to maintain the spouse who earns less at the standard of living that was enjoyed by both spouses during the marriage without unduly affecting the standard of living of the spouse who earns more. For most middle income couples, actually maintaining such a standard of living is impossible, and the court will simply order an amount, if any, that will try to equalize the income of each spouse. In making such an order, the judge hearing the case has substantial discretion to determine the amount of spousal support.

In many cases, there will be no spousal support ordered because the husband and wife are both working and each making similar incomes.

What about support for my kids?
Unlike spousal support, when a couple divorces and there are children, there will almost always be an order requiring one parent to pay the other child support. In nearly all cases, the non-custodial parent will be paying some amount of child support to the custodial parent.

Again, unlike spousal support, child support is rigidly determined by a mathematical formula that the judge must use. In determining the amount of child support, the judge hearing the case has almost no discretion to determine the amount and will, in almost all cases, simply order the amount that the formula produces.

Like spousal support, child support, in many cases, is used to attempt to equalize the income of the parents in proportion to the amount of time that the children spend with each parent.

Can I still get support for my kids if I was not married?
Yes. While the type of case that will need to be filed will be different, the results will be the same. Marriage, or lack thereof, does not affect the obligation to pay child support.

However, if the parents were never married, there will be no possibility of obtaining any spousal support.

If I have a previous order, can it be modified?
Yes. California has what is known as the "changed circumstances rule." In essence, this means that if the circumstances change, then the basis for the orders has been changed, and any such orders should be changed. This rule applies to spousal support, child support, child custody, and child visitation, and any orders affecting these issues usually can be changed when circumstances change

However, because for all future orders you must show a “change in circumstances,” it is crucial that you be satisfied with your first custody/support order.

Me and my partner are not married. Do I still have the same rights as married couples when it comes to splitting the assets?

Common law marriages are recognized in some states. California is not one of them.

There is no such thing as "common law divorce." Only a legal marriage can be dissolved by a legal proceeding. If you are cohabitating with another individual and want to know about your rights in the termination of that relationship, consult with a family law attorney.

My children’s mother and I were never married. Do I have any rights as a father?

Of course you do. If you are the acknowledged father of your child, custody and child support issues are fairly clear-cut. However, if you are the child's stepfather, you may not be responsible for paying child support nor have to participate in a custody arrangement. When the water starts getting muddied in divorce proceedings and in life is when a woman makes a claim that you are the father of her child. This is called being a presumed father.

You are presumed the father if you were married to the child's mother when the child was conceived, if you attempted to marry the mother and the child was born during the marriage period, if you welcomed the child into your home and acted as the father to that child, or if you married the mother after the birth of the child and agreed to have your name included on the birth certificate or to support that child.

In the state of California, the presumed father must pay child support. To prove or disprove paternity requires a blood test. However, even if paternity is disproved it may not be enough to preclude you from the responsibility of paying child support.

If you are not a child's biological father, but have developed a close relationship with the child of the spouse you are divorcing, you are considered an equitable parent. As such, you may be granted custody or visitation, and you may be required to pay child support.

One final category of fatherhood is the unwed father. When an unmarried man impregnates a woman, he is an unwed father. As an unwed father, you have few rights concerning your offspring. You don't have the right to require the mother of your child to obtain your consent, or even notify you, before she aborts or gives birth to and keeps the child. However, you as the unwed father may be required to pay child support if proven the father. At that point, you will have the right to visitation and may seek custody of the child. You will need the assistance of an experienced family law attorney to gain custody or to question support.

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Family Law FAQ