Frequently Asked Questions

Answers to common questions on Divorce by Family Law Attorney

How long does it take to get a divorce in California?

California law generally requires a minimum of six (6) months between service of the initial papers on the Respondent and the entry of a Judgment, albeit in complicated cases it may take longer.

How long do I have to live in California before I can get a divorce?

California law requires that either the Petitioner or the Respondent has resided in California for six (6) months and in the county you file in for three (3) months prior to the filing of the Petition.

Can the court order my spouse to pay all of my attorney fees?

There are several statutes that allow the court to order your spouse to pay part or all of your attorney fees. Caution, this is, in the vast majority of situations, totally discretionary with the court; i.e. it is totally dependant upon the facts of your case and the court has, for all practical purposes, absolute discretion in deciding whether or not to award attorney's fees.

Are you required to have an attorney?

No, one can represent him or herself, but it is generally advisable to be represented by counsel if you can afford it, particularly if the other side has an attorney; otherwise, you will be at an extreme disadvantage.

If I desire an attorney, but cannot afford one, will the court appoint one?

No. Courts appoint attorneys only in criminal and/or quasi-criminal [e.g. contempt] cases.

Is the wife always awarded sole or primary physical custody of the children?

No. The technical, legal standard is the best interest of the children, which means the court could order either joint legal/joint physical, primary physical to one party or sole physical to one party, depending on the facts of the case.

What is community property?

Community property is defined as earnings by either party during the marriage and property acquired with those earnings, exclusive of gifts and inheritance. As a consequence, this means that separate property is either earnings before the marriage, and property acquired with such earnings; earnings after the date of separation, and property acquired with such earnings; gifts or inheritance. The significance of the distinction between Community property and Separate property is that it is only the community property that is divided 50/50; separate property belongs to the party whose separate property it is - the other party has no claim on the other's separate property.

Is a divorce and a legal separation the same?

No. Even though the procedure is very similar in the two proceedings, after conclusion of the divorce, the marriage is terminated. In contrast, after conclusion in a legal separation proceeding, the parties are still married, albeit normally the community property has been divided, support has been determined, child custody and visitation has been determined, etc.

Can both husband and wife live in the family residence during a divorce?

Yes. Normally one can obtain a restraining order to keep one party out and/or to force one party to vacate the family residence only in the event of domestic violence, albeit this potentially is a trap for the unweary. It is worthwhile talking with an experienced family law attorney, such as the attorneys in this office, to understand the parameters of this limitation.

Can I pay an attorney with money from a joint bank account?

Most joint bank accounts are all or primarily community property. Since one half of the community property belongs to each party, that party can clearly use his or her half to pay attorney fees. In fact, often times, you can use the entirety of those funds since there may be other community property to give to the other party to make up for the money taken from the joint account. Again, it is advisable that you talk with a competent attorney before acting on this issue.

Can I continue to pay living expenses from a joint bank account?

This is a more complicated question than the time here allows to explain. Many questions need to be asked of the attorney in a situation where there is sufficient time for the attorney to explain the ramifications and complexities of that question. This is one of many such questions that arise during divorce proceeding. We would be happy to discuss this and all other questions concerning your divorce with you.

At what age can children decide where they want to live?

Until the children reach age of maturity, the court always has the final say, albeit as the children get older, courts are inclined to give more attention to their desires.

If my spouse and I reach an agreement during the divorce proceeding, is that enforceable?

Unless an agreement is reduced to writing and signed by the parties, their attorneys and the Judge, it is not an enforceable court order, albeit there might be exceptions in situations where the court might give great weight to an alleged agreement between the parties, particularly if one or both parties have relied upon that agreement and detrimentally changed their position because of that reliance.

What is the benefit of having a experienced family law specialist represent you in a divorce or legal separation proceeding?

The more experience an attorney has had in family law, particularly concerning divorces and legal separations, the more likely he or she is able to predict the outcome, to anticipate actions by the other side, to obtain a successful result for his or her client.

What if I decide after commencing a divorce proceeding that I do not wish to go forward? Can I stop the proceeding?

Yes. A divorce proceeding is not like a conveyer belt that once you get on, it automatically takes you to the end. Every step needs to be caused by filing motions and taking actions. This office has had many cases where the parties for assorted reasons decide either to delay going forward and/or totally stop the proceeding, which is easily done.

Unfortunately if the other party is not agreeable to stopping, they can force the proceeding forward to a conclusion.

What if my spouse wants a divorce, but I do not want a divorce? Can I prevent him or her from obtaining a divorce?

Unfortunately, while it may take two to get married, it only takes one to get a divorce. There is no real proof requirement in obtaining a divorce in California, other than the statutory requirement of "irreconcilable differences", which is almost always found by the court. All that the objecting party can realistically do is delay the proceedings, make them exceedingly unpleasant and/or expensive.

Unfortunately, the negative effect of doing so may cut both ways.

Why should I retain Thomas Chase Stutzman, A Professional Corporation, as my attorney in a divorce proceeding?

Thomas Chase Stutzman, A Professional Corporation, has been practicing and specializing in family law for over 35 years. In the process, we have handled thousands of cases, have experienced numerous variations and complexities, and therefore are able to handle everything from simple cases to very complex cases efficiently, for a very reasonable fee and almost always achieve a result fair and favorable to our clients.