25 Frequently Asked Divorce Questions

Liaise Divorce Solutions serves as something of a resource for people who have questions about divorce. We offer a free consultation to parties who wish to explore the possibility of mediation and many times we are responding to questions on the phone and through the mail that parties have regarding the process.

What follows is a list, in no particular order, of the questions that we frequently field for those going through divorce. We hope you find it useful.

Question 1: He/she lied to me. Can I get an annulment?

Answer: The short answer is no. Some marriages may be void from the inception, or voidable, for such statutorily prescribed elements as incest, bigamy, induced by fraud or force. The fact of the matter is that an annulment action is a different animal from a divorce action and not usually the subject of mediation.

Question 2: He has always earned a much greater amount of money that I have, is there any way to participate in his Social Security benefits?

Answer: Yes there is. When parties have been married for more than 10 years the Social Security Administration will allow the party who was the lesser earner to elect Social Security benefits under the other earner’s schedule. This is done without any negative impact on the other spouses benefits. This is one of the better arrangements made possible by your Uncle Sam and we urge impacted parties to take full advantage.

Question 3: I don’t know where she/he is, how can I get divorced?

Answer: The fact of the matter is that this is not that difficult of a situation. However, it is one that does not lend itself to mediation. If you reasonably cannot locate your spouse, the court will allow you to do what’s known as “service by publication”. This means that you get the court’s permission to publish the notice to the other party in a newspaper and have that operate as what’s known as “substituted service”. Once this service is complete the court will allow you to do what’s known as “bifurcate” the action. This means that it is divided in two. One part of the action is the “status” of the marriage [meaning are you husband and wife]and the other part of the action is everything else such as division of property, support, etc. The court will grant a judgment as to “status” only and you will be a single person. If your spouse shows up in a few months or years and says, “Hey wait a minute “what about my rights to the house”, or car, or company, or whatever, there can then be a trial as to those issues.

Question 4: Our house is underwater, how can we get divorced?

Answer: Although it is unfortunate that there is no equity to divide in the house, this fact in no way keeps you from becoming single people. Regrettably, even now the housing market has not completely rebounded. Many people are faced with the question of how to get out from under real estate that has a value less than the debt associated with it. What happens in mediation in these cases is that the parties negotiate between themselves as to how they want to manage this particular debt.

Question 5: I’m about to be deployed by the Navy, do I lose custody of my daughter/son?

Answer: No you do not. What happens in mediation is that the parties negotiate between them the best child custody/visitation schedules and that agreement becomes the order of the court. It would be a sad state indeed if service to your country mandated that you lose your rights to participate as a parent in your child’s life.

Question 6: We’ve been married for _ [1, 2, 3, 6, 10, 11(insert number)] how much spousal support do I get?

Answer: Spousal support is not a function of a formula. Spousal support is the result of the careful weighing of the factors set forth in family code §4320. There is controlling case law that makes it abundantly clear that no computer program, or formula, substitutes for the reasoning that must underlie a spousal support order. Sorry, it would be so much easier if we could just say give me your pay stubs and length of marriage and we will tell you your spousal support obligations. It doesn’t work that way. Life often doesn’t. Instead, what happens in mediation is that the parties negotiate together so that in light of the applicable resources, income/expenses and needs a workable, mutually agreeable, solution is arrived at.

Question 7: He/she is having an affair; can I sue the person wrecking my marriage?

Answer: The short answer is, in California, you cannot. The logical flipside of having a “no-fault” jurisdiction as to grounds for divorce, is that the old-fashioned “alienation of affections” lawsuits are long dead in California.

Question 8: When my parents die, do I have to give him/her half of my inheritance?

Answer: The short answer is, no you do not. It is well settled in California that inheritance is separate property. This is the case so long as there is no question or ambiguity as to whom the gift was made and so long as the person receiving the inheritance does not “co-mingle” the funds with community assets.

Question 9: Can I get a custody/visitation order forcing by 18-year-old son/daughter to visit me?

Answer: The short answer is, no you cannot. In California, the age of majority is 18. Once a person reaches the age of 18 the court has no jurisdiction to order an adult child to visit their parents.

Question 10: Do we have to sell the house when we divorce?

Answer: The short answer is, no you do not. When you choose mediation, you have the freedom to decide how you want to split or dispose of marital assets. One party can sell the house to the other, or to a third party or the parties can agree to continue to own the house together.

Question 11: Can we still own property together after we divorce?

Answer: The short answer is, yes, of course, you can. Divorce couples can continue owning property together, just as single people. This is similar to how people who were never married to each other can own property together as “partners”.

Question 12: I helped put her through school, can I get compensated?

Answer: The short answer is, yes, you can. It is well settled in California law that where one party has worked to bestow a large benefit on the other party that is not susceptible to division, the party providing the value is entitled to compensation.

Question 13: She moved to Arizona [insert out-of-state location here] how can we divorce in California?

Answer: The answer is you can get divorced in California if one party lives in state and the other party submits to the jurisdiction of California courts. All this requires is the out of state party’s agreement that the matter go forward in California.

Question 14: Can we agree to provide for the care of an adult disabled child?

Answer: Yes you can. Parties are free to make any arrangements in their marital settlement agreements which are legal. Even though you may no longer have a legal obligation to support a child over 18 years of age, it is not illegal for the parties to so agree, and that agreement will become the order of the court.

Question 15: Can we provide for shared custody of our dogs?

Answer: Yes you can. Courts are generally reluctant to get involved in disputes over the custody of animals, but if you choose to mediation, you have the freedom to make any agreements you want and those agreements will become court orders.

Question 16: Can we provide for the college education of our child?

Answer: Yes you can. Although your legal obligation to support a child ends at 18, many couples decide that is in the best interests of their reorganized family to commit to paying for college educations and that agreement is memorialized in the marital settlement agreement. That marital settlement agreement then becomes the order of the court.

Question 17: How do I make certain our children are raised in my faith?

Answer: The only way to make certain of this understandable parental concern is through mediation. No California court would make it an order that children are raised in any particular faith. That would probably be an infringement of parties personal liberties. However, in mediation, if both parties agree they can state their agreement in the marital settlement agreement and the marital settlement agreement will become the order of the court. Keep in mind that this is still a free country and if a party, or a child, were to ignore such an order the enforcement would be problematic, to say the least.

Question 18: Do I have to pay spousal support if she gets remarried?

Answer: The short answer is, no you do not. Remarriage is an event that terminates spousal support obligations.

Question 19: Can I pay spousal support in a lump sum?

Answer: The short answer is, yes you can. The bigger question is do you want to? One must do a careful financial evaluation as to whether it is better to pay support all at once or over time. There is a “time value” to money that must be considered. [Like a lottery winning, $50,000 a month for 20 years or $600,000 right now?] What is more, spousal support obligations usually end at death or remarriage. If you paid in a lump sum you do away with those considerations.

Question 20: Can I make her change her name back to her maiden name?

Answer: The short answer is, no you cannot. In California, people are free to call themselves whatever they choose, so long as it is not done for a fraudulent or illegal purpose. No court is going to force any person to change their name at the whim of another. However, in mediation, you can always negotiate to have a person agree to change their name. The only question becoming, what’s it worth to you?

Question 21: Can I avoid going to court?

Answer: The short answer is, yes you can – if you mediate. If you use our mediation services you never have to appear in court. The court will be provided with what is known as a stipulated judgment, the court will enter that judgment and you never have to appear before a judge.

Question 22: Can we keep our divorce private?

Answer: To a degree you can. When you use a professional mediation service, that service can provide you with a process that allows an abbreviated marital settlement agreement to be provided to the court. This abbreviated MSA only recites those items required by that court and by these means most of your private materials are kept out of the public eye.

Question 23: How to divide up all this stuff?

Answer: It is not a good idea to have professional assistance and dividing up “pots and pans”. However, a professional mediation service will provide you with excellent tools to enable the parties to arrive at an equitable distribution of the physical goods.

Question 24: I want to move with the kids to another state, can I do that?

Answer: This is what is known as a “move away” situation. It is far away the most difficult case to manage. The fact of the matter is that most courts will not allow one party to move children out of their jurisdiction and away from the other party unless there is a truly compelling reason. It will not be enough for one party to come in and simply disparage the parenting skills of the other party. A reason sufficient to justify a move away order would have to be quite egregious. Think doing long-term jail time or multiple investigations for child abuse.

Question 25: We got married in ______ [fill in the blank such as Ohio, Germany, Russia, etc.] How can we get divorced in California?

Answer: This is not a problem. As long as a husband or wife resides in California and the other party is willing to “submit to jurisdiction” in this state, you can get divorced in California. When you read “submit to jurisdiction”, just think of it as the other party agrees to the action going forward in California.

David D. Stein has been an attorney for 20+ years and the founder of Liaise® Divorce Solutions. He is a trained mediator, dispute resolution specialist and lecturer on non-violent conflict management techniques and tools.

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