Family Law FAQs:

California is a No-Fault State for Divorce- What Does that Mean?

California is a “no-fault” divorce state, which means that spouses can file for divorce without having to prove that one party was at fault for the breakdown of the marriage. In a no-fault divorce, irreconcilable differences or an irreparable breakdown of the marriage are typically cited as the grounds for divorce.

In a “fault” divorce state, one spouse must provide evidence of wrongdoing by the other spouse, such as adultery, cruelty, or abandonment, to be granted a divorce. In contrast, in a no-fault divorce state like California, neither spouse has to prove that the other did something wrong in order to obtain a divorce.

What is the Six-Month Waiting Rule in California?

California has a six-month waiting period for a divorce to be finalized and marital status terminated. This waiting period begins from the date the divorce papers are served to the other spouse or from the date the other spouse files a response to the divorce petition, where occurs first. The purpose of this waiting period is to provide couples with a cooling-off period and an opportunity to reconsider their decision before the divorce is finalized. It also exists to make sure that certain benefits available to married persons (medical insurance as a dependent spouse, surviving spouse benefits, etc.) remain intact for a period of time.

During the waiting period, spouses can still resolve various issues in their case, such as property division, child custody, child support, and spousal support. Once the waiting period has passed, the Court can proceed with finalizing the divorce and terminating marital status.

How Long does a Divorce Take to Complete?

The duration of a divorce case in California can vary widely based on several factors, including the complexity of the case, the level of cooperation between the spouses, the Court’s caseload, and whether any disputes arise over issues such as property division, child custody, and support. Some divorces can be completed relatively quickly if both parties are in agreement on major issues and are able to reach a settlement. In more complex cases or when there are disagreements, the divorce process can take significantly longer, potentially extending for several months or even longer if the case goes to trial.

Does it Matter who is the Petitioner?

In a California divorce, the Petitioner is the spouse who initiates the divorce process by filing the divorce petition with the Court. The other spouse is known as the Respondent. The role of the Petitioner and Respondent can have certain implications during the divorce process, but it doesn’t necessarily impact the final outcome of the divorce itself.

The only tangible benefit to being the Petitioner is that If the Respondent does not respond to the divorce Petition within a certain period of time, the Petitioner may be able to request a default judgment. This means that the Court may grant the divorce based on the terms set out in the Petitioner’s initial filings.

What are Residency Requirements for a Divorce?

California has a residency requirement to file for a divorce. To file for divorce in California, either you or your spouse must have lived in the state for at least six months before filing. and the county where you plan to file for divorce for at least three months before filing. These residency requirements are important to establish jurisdiction for the court to hear the divorce case.

What is the Difference Between Divorce and Legal Separation?

There is only one major difference between divorce and legal separation: a divorce terminates marital status and returns both parties to “single” status while a legal separation preserves the status of the parties as a married couple. Every issue adjudicated in a divorce is also adjudicated as part of a legal separation. Property is divided, debts are divided, child support and spousal support Orders are made, and child custody orders are made as part of a legal separation. Legal separation is a good alternative for those couples who know they can no longer live together but are unsure as to whether or not reconciliation is a viable option in the future. However, once complete, a legal separation can easily be converted into a divorce in the future.

Are Lawyers Required for a Divorce Case?

In California, it is not legally required to have a lawyer to file for or complete a divorce. Spouses have the option to represent themselves, and this is often referred to as “pro per” representation. However, while it is possible to handle a divorce without a lawyer, there are several important factors to consider when doing so. If the divorce case involves complex financial issues, significant assets, business interests, or contentious child custody matters, it can be challenging to navigate without legal guidance. Lawyers can also provide valuable assistance in negotiating and mediating agreements in the case, ensuring that rights and interests are protected. Divorce involves a substantial amount of paperwork and Court filings. Incorrectly completed paperwork or missed deadlines can lead to delays in the divorce process. A lawyer can ensure that all necessary documents are properly prepared and submitted. Emotions can run high during a divorce. A lawyer can provide objective advice and help you make informed decisions.

Do I Forfeit any Rights if I Move Out of the Marital Home?

In a California divorce, moving out of the marital home during does not mean a spouse will forfeit any equity or ownership rights over the home. However, it can have implications for certain aspects of the divorce process, so it’s important to be aware of the potential consequences.

If a spouse moves out before establishing temporary Orders for issues such as spousal support, child support, and/or property use, it could potentially affect the moving spouse’s immediate access to resources. Moving out could also impact child custody and visitation arrangements. Courts often prioritize the best interests of the children, and stability and continuity can be important factors. Moving out could potentially affect a spouse’s ability to maintain the same level of involvement with your children if you do not have clear custody and visitation.

What is Community and Separate Property?

Community property refers to the legal concept that assets and debts acquired during a marriage belong equally to both spouses. California is a community property state, which means that any property or debts acquired by either spouse during the course of the marriage are generally considered community property and are subject to equal division upon divorce. This includes assets such as income earned by either spouse, real estate, vehicles, bank accounts, investments, and other property acquired during the marriage. Community property also includes debts acquired during the marriage. This can include credit card debt, mortgages, and other financial obligations.

Some property may be considered separate property rather than community property. Separate property typically includes assets acquired before the marriage, gifts or inheritances received by one spouse, and certain property acquired after the date of separation. Separate property is not subject to equal division in a divorce.

Criminal Practice FAQs:

Should I Speak to the Police if Questioned?

Whether you should speak to the police if questioned depends on the situation and your specific circumstances. That being said, nearly all criminal defense attorneys, myself included, advise against speaking with the police beyond providing identification information unless your lawyer is present. You have the right to remain silent, which means you don’t have to answer questions from the police. You can and should choose to exercise this right, by verbally stating that you are exercising that right, to avoid potentially incriminating yourself.

What is an Arraignment?

In California, an arraignment is a crucial step in the criminal court process. It is a formal court hearing where the defendant is brought before a judge to be informed of the charges against him or her and to enter a plea of guilty, not guilty, or no contest. If the defendant is in custody (in jail), the Judge may consider setting or modifying bail based on various factors, such as the seriousness of the offense, the defendant’s criminal history, ties to the community, and flight risk.

Am I Better off With a Public Defender or Private Attorney?

Whether you are better off with a public defender or a private attorney depends on various factors, including your financial situation, the complexity of your case, your personal preferences, and the potential consequences of the legal matter you’re facing. Public defenders are provided by the government to individuals who cannot afford to hire a private attorney. If you are facing financial hardship, a public defender may be your only viable option. Public defenders are experienced attorneys who specialize in criminal defense, but often have heavy caseloads due to the high demand for their services and limited resources and staff compared to private law firms. This could impact their ability to thoroughly investigate your case or provide personalized attention. Private defense attorneys generally provides you with more personalized attention. Private defense attorneys may have more time and resources to dedicate to your case, allowing for a more thorough analysis and preparation. Additionally, with private defense attorneys you have the ability to choose your private attorney based on factors such as their experience, reputation, and expertise.

What is a Plea Bargain?

A plea bargain, also known as a plea deal or plea agreement, is a negotiated arrangement between a defendant and the prosecution in a criminal case. It involves the defendant agreeing to plead guilty or no contest (nolo contendere) to certain charges in exchange for concessions from the prosecution, such as a reduced sentence, a lesser charge, or some other benefit. Plea bargains are a common practice in many criminal justice systems and have certain benefits. Plea bargains help expedite the legal process by avoiding lengthy trials. Additionally, the Defendant can have more predictable outcome with a plea bargain, compared to the uncertainty of a trial where the verdict is determined by a jury, and the sentence is issued by the Judge. It’s important to note that while plea bargains offer potential benefits, they also have potential drawbacks. Defendants might feel pressured into accepting a plea bargain even if they believe they are innocent, as the prospect of a trial can be intimidating and risky. Additionally, some critics argue that plea bargains can lead to innocent individuals pleading guilty to avoid the uncertainty and potential harshness of a trial.

What is a Plea of No Contest?

In California, a plea of “no contest,” also known as a “nolo contendere” plea, is a legal option available to defendants in criminal cases. When a defendant enters a plea of no contest, they are not admitting guilt like they would with a guilty plea, but they are also not contesting the charges as they would with a not guilty plea. Instead, they are essentially choosing not to fight the charges while also not admitting fault. A plea of no contest is treated similarly to a guilty plea in terms of the legal consequences. The Court will treat the case as if the Defendant had been found guilty, a conviction will be entered, and the Defendant will be sentenced. One advantage of a no contest plea is that the no contest plea cannot be used as an admission of guilt in subsequent civil proceedings, with some exceptions.

What is an Expungement?

In California, expungement is a legal process that allows certain individuals who have been convicted of a crime to have their criminal records either cleared or modified, thus providing them with an opportunity to move forward with their lives without the stigma of a conviction. It’s important to note that expungement in California does not completely erase a criminal record, but it can have several beneficial effects. If your petition is granted, your guilty plea or verdict will be set aside, and the case will be dismissed. The conviction will still appear on your record, but it will now show as “dismissed” rather than “convicted. In most cases, you will not have to disclose the conviction on most job applications, though certain jobs (such as those in law enforcement) and certain licensing agencies may still require disclosure.

How Are Crimes Classified in California?

In California, crimes are classified based on the severity of the offense and the potential punishments associated with them. The California Penal Code divides crimes into three main categories: infractions, misdemeanors, and felonies. Each category is associated with different levels of punishment, ranging from relatively minor penalties for infractions to more severe consequences for felonies.

Infractions are the least serious type of offense and typically involve minor violations of the law. They are punishable by fines rather than incarceration. Common examples of infractions include minor traffic violations and certain low-level offenses.

Misdemeanors are more serious offenses than infractions but less serious than felonies. They can result in fines and jail time of up to one year in a county jail. Misdemeanors include a wide range of offenses, such as petty theft, simple assault, and certain drug-related offenses.

Felonies are the most serious category of crimes and can result in significant prison sentences, fines, or both. Felonies encompass a wide range of offenses, including violent crimes, drug trafficking, serious theft, and white-collar crimes. The severity of the punishment depends on the specific felony and other factors.