FAQ
How long does it take to get divorced?
In California, there is a mandatory waiting period of 6 months from the date of filing your petition and serving your spouse with the paperwork to get divorced. This is often referred to as the “cooling off” period. The purpose of the mandatory waiting period is to encourage reconciliation. However, the process often does take longer for individuals, even up to several years, depending on the contested nature of the proceedings.
Are there negative consequences for me if my spouse is the one who files first?
Not legally. In family law cases the one who files the initial paperwork first is referred to as the “petitioner” while the one who responds is the “respondent.” Neither the petitioner nor the respondent are viewed any differently in the family courts simply because of how, when or what they file.
Can I get a divorce without going to court?
To legally get divorced, the case must go through the court system, in order to be officially signed off by a judge. However, if parties wish to avoid litigation (think trial, evidentiary hearings, etc.), they do have the option of coming to an agreement with one another. The courts may then enforce this agreement.
To learn more about a collaborative law approach, click here [https://www.butler.law/mediation-and-collaborative-law/].
Is there a way to avoid protracted litigation during a divorce?
Yes. In fact, many couples opt for working together and coming to agreements on how to split their property, share custody of their children, and other issues. However, at the crux of this option is that both partners must be willing to work together to be successful in this area. Even after a divorce judgment has been entered, most issues are modifiable. This means that at any time, one party can file for the court to hear them out on a particular issue. That is why it’s best for both parties to maintain an amicable relationship, if possible.
If I have property in my name, can my ex get any part of it?
California is a community property state. In a nutshell, this means that all property acquired during marriage (absent property acquired by gift, bequest, or devise) is subject to be split 50/50 between spouses upon divorce. All other property acquired by an individual before marriage or after marriage is considered separate property and 100% of it goes to that person. However, there are often times where one spouse will acquire property in their name during marriage. Some people believe that because it is in their name only, it must only be theirs. But not always. That property is subject to tracing and transmutation principles, depending on what each party argues. Because property during divorce is often subject to complex legal analysis, it is best to consult an attorney in this area.
Read more about property division here [https://www.butler.law/property-division/].
How can I prevent my ex from dragging out litigation by continually filing motions?
Yes, you can. But that depends on whether you both are willing to work together. Technically, either party is able to file motions on a variety of legal issues post-judgment if they wish. So, the best way to avoid this is by maintaining an amicable relationship with your ex and possibly working out a mutual agreement that the court can enforce, so as to keep motion filing to a minimum.
Does the mother automatically get custody of the children?
Sometimes. It depends on when a party is trying to establish custody and the circumstances surrounding the child’s birth. If both parents are married when the child is born, both parents have equal rights to the child. If both parents are unwed when the child is born, the mother automatically gains custody of the child. The father must prove legal paternity, then he may request orders to modify rights to the child. Child custody orders are often very complex and fact-dependent. To learn more about child custody, click here [https://www.butler.law/custody-and-visitation/].
My ex has threatened to take full custody of our children. Can she do this?
Unless there is a court order that specifies this, threats are just threats. Oftentimes during a heated divorce or custody battle, parents will use scare tactics to get the other parent to believe they have a certain legal right to the child, in order to get the other parent to back down and not assert their rights in court. But until there is a court order or enforceable agreement, threats are just threats. Don’t let them deter you from exercising your rights as a parent.
