FAQ

Q. HOW LONG DOES IT TAKE TO GET DIVORCED?

A. There is no rules about how long it takes to get divorced in California except that the status of the parties’ marriage cannot be dissolved until a period of sixmonths has elapsed since one of the parties filed a Petition for Dissolution of Marriage with the Court and properly served the other party with the Petition and Summons. Sometimes the parties can resolve all of the issues in their divorce by agreement in less than six months and they can get a Judgment incorporating that agreement as soon as it is signed and processed by the Court. However, in that case, the parties will remain legally married until the six-month period runs. In other cases, it may take well over a year to complete a settlement of all issues or for the Court to hear and decide the issues.

Q. HOW MUCH DOES IT COST?

A. There is no fixed cost for getting divorced. Most attorneys charge for their time by the hour and the amount of time the attorney has to spend in a case depends upon the nature and complexity of the issues involved and the parties’ level of cooperation. At Marx & Duffy, we have handled divorces that cost anywhere from a few thousand dollars to well over one hundred thousand dollars. We keep our clients involved in all critical decisions that are made during a divorce so that we can counsel our clients in the cost-benefit analysis of such decisions.

Q. WILL I GET CUSTODY OF MY CHILDREN?

A. The law in California promotes parents having frequent and continuing contact with their children. This often means that parents share custody of their children. Sometimes one parent provides a principal home for the children and sometimes the children spend approximately equal time with each parent. Parents are encouraged to reach agreements with respect to the care and custody of their children, but when they are unable to do so, the Court will decide what custodial arrangement is in the children’s best interests.

Q. I AM PLANNING TO GET MARRIED. SHOULD I HAVE A PREMARITAL AGREEMENT?

A. The benefit of having a Premarital Agreement is that you and your future spouse can decide between yourselves what you want your economic and legal relationship to be. You may decide that what California law provides is not for you because you want your respective earnings during marriage to be your separate property instead of community property. You might want to make sure that your separate assets at the time of your marriage will remain your separate property even if you spend time managing or increasing the value of those assets. You may want to make sure that one party’s debts cannot be satisfied from the assets or income of the other party. All of these concerns are good reasons to consider having a Premarital Agreement. Ultimately, the decision to have a Premarital Agreement is a matter of personal choice and whether you and your future spouse can agree on what that Agreement should provide. At Marx & Duffy, we will take the time to discuss these very important issues with you to help you decide if a Premarital Agreement is right for you. If you think you might want a Premarital Agreement, it is important to contact an attorney well before your planned marriage so that both parties can have ample time to consider and negotiate the terms of an Agreement.

Q. WILL MY SPOUSE HAVE TO PAY MY ATTORNEY’S FEES?

A. In certain cases, a Court may order one party to pay part or all of the other party’s attorney’s fees and expenses. The most common reason for such an order is that one party has significantly greater financial ability to pay the costs of the divorce than the other party. There are no hard and fast rules as to how much money one party has to have or how great the difference must be between the parties’ financial circumstances to justify an attorney’s fee order. The Court has discretion to determine what is reasonable.

Sometimes, a Court will order one party to a divorce to pay a sanction to the other party if it finds that the party ordered to pay the sanction has not acted to further the public policy of minimizing the cost of family law litigation by taking unreasonable positions in the divorce. These sanctions can be ordered even if the party ordered to pay does not have greater income or assets than the other party and can be more or less than the other party’s actual attorney’s fees.

There are other situations in which one party might be ordered to pay the other party’s legal expenses. If you have any questions about this, you should discuss this with your attorney.

Q. MY SPOUSE AND I ALWAYS KEPT OUR OWN BANK ACCOUNTS. DO I HAVE AN INTEREST IN MY SPOUSE’S ACCOUNT?

A. You may very well have an interest in your spouse’s account. Under California law, all assets acquired by a spouse during marriage is presumed to be community property in which each spouse owns a one-half interest. This is true even if each spouse maintains a separate account. Unless the parties have a valid Premarital or Post-Nuptial Agreement, in order to overcome this presumption, the person who claims an asset to be his or her separate property must prove that the asset was owned by that person before the marriage, was received as a gift or inheritance, or was purchased with that person’s separate property. The facts of each case are unique and you should review all of the facts with your attorney.

Q. WILL I GET TO KEEP MY OWN RETIREMENT ACCOUNT?

A. Retirement accounts, like other assets are presumed to be community property if acquired during marriage. In general, contributions made to a Defined Contribution Plan such as a 401(k), IRA, or SEP-IRA that are made from a spouse’s earnings during marriage and any earnings from those contributions will be community property. Most Defined Benefit Pension Plans such as a traditional pension plan will have a community property interest based on the number of years of creditable service the spouse received from service during marriage compared to the total number of years of service from the date of participation in the plan until the spouse is eligible to retire. When the parties decide how to divide their community assets, they may agree to divide their retirement accounts or may agree to keep their own accounts. Most retirement accounts are divided pursuant to a Qualified Domestic Relations Order (QDRO) that is authorized under federal law and requires the Plan Administrator to pay benefits directly to the non-participant spouse who will be solely responsible for the taxes on the benefits he or she receives.

Q. WHAT HAPPENS TO STOCK OPTIONS?

A. In general, most incentive employee stock options will be characterized as community property to the extent that the parties were married between the date the options were granted and the date that the options vest. Options that are granted during marriage but vest after the parties’ “date of separation”, will normally be partially community property and partially the employee’s separate property. Options that are granted after the “date of separation” in most cases are the employee’s separate property. Because it is often extremely difficult to value unexercised stock options, most people choose to divide them in kind so that the employee spouse will exercise the other spouses share of vested options upon request. There can be many legal and factual issues that affect the characterization of stock options, so if you or your spouse have stock options you should discuss them with your attorney.

Q. WHAT IS THE “DATE OF SEPARATION”?

A. The “date of separation” refers to the date when spouses are living separate and apart. This date is not always clear because even if spouses are not currently living in the same dwelling, they may not be considered “separated” if there has not been a final break in their marital relationship. The effect of the “date of separation” is that in general, anything earned by a spouse after that date will be characterized as his or her separate property and any liability incurred after that date will be the separate obligation of the spouse incurring the debt. In many cases, the parties do not agree on what date should be determined to be the “date of separation”. You should be prepared to discuss this issue with your attorney.