(This is only for general information purposes since the issues of every case vary, as does the strategy. This is not legal advice and an attorney should always be consulted before taking any steps in a legal matter. The following questions and answers apply only to cases in California).

What am I entitled to under California law if I get a divorce?
The general rule is that a husband and wife are entitled to split evenly any assets or monies obtained during the marriage, which are considered community property. Community funds are generally funds earned during the marriage from the husband or wife’s work or efforts. Separate property is generally obtained before the marriage and after separation or obtained from monies or investments owned before the marriage. There are cases where one spouse may be entitled to reimbursements for using community funds for the benefit of a separate property or separate funds for the benefit of the community. Debts incurred during the marriage are generally community debts. This area of the law is complex.

How do I get a divorce?
The essentials of divorce is to file a petition for dissolution, make sure it is personally served on your spouse (not you),
The basic forms needed to start dissolution of marriage (divorce) are:
Petition for dissolution
Summons
Proof of service of summons
Pay filing fees
Civil Case Cover sheet
Application for Waiver of Fees (if you do not have money to pay the fees and costs)
Order on the application for waiver of fees
Blank Response to Petition delivered to the Petitioner
Do discovery such as form interrogatories, request for documents, and depositions (including deposition subpoenas for documents).
File a Declaration of Disclosure with the requirements of that disclosure.
Ask for a trial date when you feel you have enough information to go forward in front of the judge. Be ready to attend a mandatory settlement conference before the trial date.

Why does the separation date matter, which is requested in the Petition for Dissolution?
It is important because any income earned as a result of work done after the separation date belongs to the person who earned it and any debts incurred after the separation date is of the person who incurred the debt. Also, some assets are valued on the date of separation. Separation is the date in which you believed that the marriage was truly over and there is no hope of reconciliation. One spouse may have a different belief as to what is the separation date.

What if I need a support for myself and/or my kids and a visitation plan or custody plan?
Generally, the spouse needing the support files a request for a hearing in the form of an application for order to show cause. This order will be temporary, that is, until the court enters a different order, the parties agree to a different order, or there is a trial in the case.. The application will have the declaration of the spouse requesting relief and any supporting documents. If any money is requested, an income and expense form must be filed. If child custody and visitation is an issue, then before the hearing the spouses will need to request and attend a conciliation court date where both meet with a conciliator who helps them reach an agreement on these issues only.

Will I get support for my children and myself?
The amount of temporary support depends on the California guidelines, which take into account the income of each person, their needs and the children’s needs and the ability to pay. This is why the income and expense declarations are required before the court will consider any issues related to money.

If I am married for more than 10 years how long can I get spousal support?
Generally this is considered a long-term marriage and the court can award spousal support for life. Marriages for less than 10 years generally involve support for half of the length of the marriage. However, the court considers several factors when considering spousal support, including the asking party’s need, education, ability to earn a living, and other factors and the other spouse’s ability to pay.

What if the house my spouse bought with me during the marriage is only in her name?
There is a presumption in the law that the title controls, however, it will be your burden to prove with clear and convincing evidence that the home was purchased for the two of you and there was a specific reason why it was not put in both names. Written documents are the best evidence of the intent at the time the purchase was made. Witnesses can also be used.

My wife has had a business throughout our marriage; does she get to keep it at divorce?
The business is probably community property so that you are entitled to half of its value. Generally, the courts will allow the person who works the business to keep it at the time of a divorce. However, you can have a valuation of the business by a forensic accountant so that you can negotiate and request half of the value of the business for yourself.

If I purchased expensive jewelry for my wife during our marriage, which I gave to her at special occasions, does she get to keep it and I have not half interest?
Generally personal property items are considered that of the person who uses them. However, where the jewelry or item (artwork, etc) is of substantial value, the court can consider it an investment. A writing may be needed to prove that these expensive items were gifts.

If I have a domestic partner and we have separated, what are my rights?
There is new law that provides for protections similar to married couples for those that are registered in California as domestic partners, such as support, attorneys fees, community property, child custody, child support, etc. Although the law for married couples generally applies, this is a relatively new area of the law that is developing and will be doing so for many years to come. The California law on domestic partnerships affects no federal rights, no joint federal tax returns can be filed, and some property rights are also not affected. It is best to have a consultation with an attorney as to the specifics of your case.

What do I do if my spouse is arrested for domestic violence?
Appear in court as ordered. Don’t talk with the aggressor. You may speak to his attorney if you wish to do so and are comfortable, however, anything you say can be subject to interpretation. Talk to the victim advocate in court. Talk to the prosecuting attorney. Keep notes on any attempt by the aggressor to contact you or through others he/she has sent. Make sure the prosecuting attorney prepares you before testifying in court.

I don’t want to go forward with the criminal case for domestic violence; can I have it dismissed?
No. The prosecuting attorney will file and go forward with the case if there are visible injuries or other strong proof of the violence. The prosecuting attorney will subpoena you for trial and you can be held in contempt and put in jail for failure to appear. Also, if you have children, child services can cause problems and try to take the children from you for failing to protect your children, if you refuse to go forward with the case.

Why is the prosecuting attorney of the domestic violence case not filing charges yet and requesting a hearing or meeting at his/her office?
The victim should not take this decision personally; it does not mean they don’t believe her. Prosecuting attorneys have to prove their case in front of a jury. Therefore, in cases where the injuries are minor or not visible they may have an informal meeting with the victim and the aggressor (separately) to determine whether they should file charges. The prosecuting attorney, if he/she does not have enough physical evidence in the case, can tell the aggressor that if he/she hurts the spouse again or gets arrested in the next year, the present charges will be filed.

What can I do to protect myself as a victim of domestic violence?
If charges are filed, then the prosecuting attorney or officer should get a restraining order against the aggressor in criminal court. Make sure that you have no contact with the aggressor. If charges are not filed, or there is no criminal matter, the victim can go to family court and request a restraining order against the aggressor, in addition to child custody and child support. Normally, this is done shortly after any violence so that the court can give her/him a temporary restraining order on an emergency basis. The forms used for this purpose are all DV forms and can be obtained in the clerk’s office for a minor fee.

If he asks for visitation and is abusive what do I do?
Don’t give visitation unless you have a court order or monitored visitation by a professional monitor.

What do I do if I have a temporary residency status that I obtained through my abusive husband?
You can apply for residency independent of him if he is abusive, however, you should be ready to provide any proof of the violence. I suggest you wait to get the divorced until this is discussed with an immigration attorney. You can file the temporary restraining order requests without getting a divorce.

How long can I get permanent spousal support?
The general rule is that if the marriage is less than 10 years, the court may order spousal support for half of the length of the marriage. If the marriage is 10 years of more, the court order spousal support for life. The order of permanent spousal support is determined by many factors such as: need, ability to pay, education, ability to work, what the person is dividing in the divorce, etc. Can my husband take my kids away from me during the divorce, as he has threatened to do? If you are a stable and good mother, this should not happen. I recommend that the mother attach the declarations of persons who know her and how she treats or cares for the children to any pleadings related to visitation and custody of the children.

Can my husband get visitation with the children?
If he is an abuser, it is a good idea to ask for either no visitation or visitation monitored by a professional monitor that he has to pay for. Once a week for two hours is standard.

What visitations do the courts generally give dads?
It varies from case to case, however, where the mother is the primary caretaker, it is common for dad to get every other weekend and one or two nights per week . This depends on the age of the kids, the relationship he has had with them, how much mom or dad has to work, whether one of the parents works at home, etc. Fifty percent custody is becoming more common.