Frequently Asked Questions - San Diego Divorce

Below are some frequently asked questions and answers about divorce law in San Diego, click on the following areas for more information:


Understanding Family Law

Q: What is a Certified Family Law Specialist?

Q: What are pendente lite orders?

Q: Can my spouse and I mediate our divorce?

Q: What are the advantages of mediation over litigation?

Q: What is collaborative law?

Q: When is litigation preferred over mediation?

Q: What is a Marital Settlement Agreement?

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Procedure

Q: I have handled the family finances throughout our marriage. Now that we are seeking to divorce each other, why do I need to disclose every single aspect of the financials to my spouse?

Q: When is the earliest date I can return to the status of a single person in San Diego?

Q: Can I retain a lawyer to fight for me and still mediate?

Q: What is an Ex Parte proceeding?

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Support

Q:I am currently paying alimony to my ex. Is spousal support tax deductible?

Q: I am not married to the father of my child. Am I entitled to receive child support?

Q: Do I have to pay taxes on the child support that I receive?

Q: How much child support will I have to pay?

Q: Do I have to pay taxes on the spousal support that I receive?

Q: How is spousal support calculated?

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Child Custody & Visitation

Q: When might supervised visitation be appropriate, and if it is, who provides the supervision?

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Property Issues

Q: What is community property?

Q: What are community debts?

Q: What if I brought my own assets into my marriage?

Q: How do I trace the separate property debts or obligations that I brought into the marriage?

Q: I had an IRA account before marriage with a balance of $10,000. During marriage no monies were ever contributed to this account. Will this be confirmed as my separate asset?

Q: If my spouse received stock option grants during marriage but they have not vested yet, and if they vest in the future with significant value, is that community property?

Q: What if I had significant assets at the time of marriage, and my spouse and I used those assets to support our lifestyle during marriage?

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Discovery

Q: My wife refuses to provide me with information regarding her bank account. To avoid going back and forth on this issue, can I get copies of her bank statements directly from the bank?

Q: Can I get access to my former spouse's financial information after our divorce is final?

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Attorney-Assisted Divorce Option

Q: Attorney-Assisted Divorce: What will our law firm do?

Q: Attorney-Assisted Divorce: What will our law firm not do?

Q: What are the typical candidates for the Attorney-Assisted Divorce Option?

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Mediation

Q: What are the benefits of Mediation?

Q: What issues will be discussed or resolved?

Q: What does the mediation process entail?

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Q: What is a Certified Family Law Specialist?

A: A Certified Family Law Specialist (CFLS) is an attorney certified by the State Bar of California Board of Legal Specialization as a specialist in family law. A California attorney, who is certified by the State Bar as a Family Law Specialist must have:

  • Taken and passed a written examination in family law
  • Demonstrated a high level of experience in family law
  • Fulfilled ongoing education requirements, including specific education requirements in family law
  • Been favorably evaluated by other attorneys and judges familiar with her or his work in the family law area

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Q: I have handled the family finances throughout our marriage. Now that we are seeking to divorce each other, why do I need to disclose every single aspect of the financials to my spouse?


A: In California, both parties are held to a very high standard of full disclosure. For example, Family Code section 2100 provides:

It is the policy of the State of California (1) to marshal, preserve, and protect community and quasi-community assets and liabilities that exist at the date of separation so as to avoid dissipation of the community estate before distribution, (2) to ensure fair and sufficient child and spousal support awards, and (3) to achieve a division of community and quasi-community assets and liabilities on the dissolution or nullity of marriage or legal separation of the parties as provided under California law.


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Q: When is the earliest date I can return to the status of a single person?

A: In San Diego, your divorce is finalized six months from the date of personal service of the Petition, but you will have to seek this relief request from the court by either filing a motion or a stipulation.


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Q: What are pendente lite orders?

A: Pendente lite orders are temporary orders on an issue pending resolution of a divorce case. Pendente lite orders may remain in effect until the time of trial, written settlement by the parties, or further court order.


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Q: I am currently paying alimony to my ex. Is spousal support tax deductible?

A: Although spousal support is typically tax deductible to the payor, there are eight elements that must be met to insure that the payments are in fact tax deductible:

  • The payments must be made under a divorce or separation agreement (26 USC § 71 (b)(1)(A)).
  • The payment must be received by, or on behalf of, a spouse or former spouse (26 USC § 71 (b)(1)(A));
  • The payments must be made in cash. Checks are treated as cash but a transfer of services, property or executing a debt instrument does not qualify as “cash”. (26 USC § 71 (b)(1));
  • The divorce or separation instrument does not have a clause by which the spousal support payment is specifically designated as non-taxable to the recipient or not allowable as a deduction to the payor (26 USC § 71 (b)(1)(B));
  • The parties must not be members of the same household when the payment is made; unless the spousal support payment is pursuant to a temporary order (26 USC § 71 (b)(1)(C));
  • There can’t be any associated liability to make any payment after the death of the recipient spouse or to make any payments as a substitute for such payments after the death of the recipient spouse (26 USC § 71 (b)(1)(D));
  • The payment is not treated as child support or subject to a contingency related to a minor child (26 USC § 71 (c)); and
  • The former spouse does not file a joint tax return (26 USC § 71 (e));

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Q: I am not married to the father of my child. Am I entitled to receive child support?


A: Whether parents are married or not, the amount of child support that is due from one parent to the other is mandated by the State of California. Divorce laws in San Diego dictate that the guideline amount will be calculated by a computer using key factors such as the income of each parent, ability to earn, the percentage of time each parent has with the child or children, and other guideline deductions such as income taxes paid, health insurance, mandatory retirement, etc.


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Q: Do I have to pay taxes on the child support that I receive?

A: Child support is not taxable to the recipient, nor is it tax deductible for the payor.


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Q: How much child support will I have to pay?

A: In California, the amount of child support due from one parent to the other is a guideline amount calculated by a specialized computer program. This program considers many factors including the income of each party, the percentage of time each parent has with the child, the ability of each party to pay, health insurance, and other tax considerations.


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Q: Do I have to pay taxes on the spousal support that I receive?

A: Without an agreement to the contrary, spousal support is taxable to the recipient and tax deductible for the payor.


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Q: How is spousal support calculated?

A: Judges have broad discretion in their ordering spousal support. San Diego divorce law determines that the amount awarded to the supported spouse is a complex determination based on a variety of factors including the income of each party, the length of the marriage, the age and health of each party, the marketable skills of each party, the marital standard of living, the respective education of each party and more.


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Q: What is community property?

A: Community property is generally presumed to be all property acquired during marriage unless the property was acquired by gift or inheritance. There are, however, exceptions. You should consult with a Certified Family Law Specialist, particularly one familiar with financial matters, to discuss this complex area of law. Nancy J. Bickford is a Del Mar area Certified Family Law Specialist.


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Q: What are community debts?

A: Debts acquired during marriage are generally presumed to be community debts. There are, however, exceptions such as debts acquired as an encumbrance on separate property that are separately titled. You should consider meeting with a Certified Family Law Specialist, who is well versed in finance, to discuss this complex area of law. Nancy J. Bickford is one such lawyer in San Diego who is able to understand and explain these matters.


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Q: What if I brought my own assets into my marriage?

A: If you brought separate property, assets, or debts into your marriage, and if those assets or debts exist at the date of separation and can be traced to the separate property that you brought into the marriage, then those assets or debts remain your separate property. Many San Diego divorces are complex in nature, and require a great deal of experience to navigate.


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Q: How do I trace the separate property debts or obligations that I brought into the marriage?

A: The process of tracing is extremely complex. We, at the Law Offices of Nancy J. Bickford, APC, have superior knowledge and an understanding of the tracing process and can empower you with an in-depth understanding of the process. Nonetheless, in San Diego County a court would usually expect a neutral accountant to serve as the court expert and to perform this tracing.


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Q: I had an IRA account before marriage with a balance of $10,000. During marriage no monies were ever contributed to this account. Will this be confirmed as my separate asset?

A: If you can prove that account was yours before marriage and that no deposits were made during marriage, then the IRA will be confirmed as your separate property.


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Q: If my spouse received stock option grants during marriage but they have not vested yet, and if they vest in the future with significant value, is that community property?

A: The analysis of this situation is somewhat complicated. Essentially, a portion of the gains upon the exercise of stock options will be community property and a portion will be separate property, based upon various formulas. We at the Law Offices of Nancy J. Bickford, APC, are well-versed in these formulas and divorce laws in San Diego and can advise you of your rights. However, a court is likely to request that a neutral accountant serve as the court expert to make this allocation


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Q: What if I had significant assets at the time of marriage, and my spouse and I used those assets to support our lifestyle during marriage?

A: In San Diego, if you brought assets into the marriage and used those assets to support your standard of living or to pay community expense, they will usually be presumed to have been a gift to the community. Only separate property assets and debts that remain at separation can be confirmed to one party or the other as separate property. There are some exceptions, however, regarding claims for credits or reimbursements to either separate property or to the community. One exception would be if you used your separate property to pay down the debt on your community home. This would be reimbursable to you provided you can "trace" the payments from your separate property to the community property debt.


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Q: Can my spouse and I mediate our divorce?

A: Yes. In fact, we at the Law Offices of Nancy J. Bickford, APC encourage all of our clients to mediate as many issues as possible. The purpose of mediation is to assist you and your spouse in making your own decisions about your divorce because you know better than any judge how to evaluate your situation. Many divorce complexities are handled in San Diego through mediation.


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Q: What are the advantages of mediation over litigation?

A: In mediation, two parties can work together to identify the best solutions to their problems, whereas litigation can result in decisions that neither party wanted. For example, if the most important thing you want in your divorce is "A" and your spouse primarily wants "B" a San Diego judge could award "B" to you and "A" to your spouse. One major advantage of mediation and negotiation over litigation is that in mediation you can bargain for "A" while your spouse may offer you more if he can achieve "B". Result? Both parties avoid the extraordinary expense of litigation and also can achieve a more mutually satisfying result.


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Q: What is collaborative law?

A: San Diego collaborative family law describes the legal component of collaborative practice in which the spouses and their attorneys engage in four-way settlement meetings striving to comprehensively settle all divorce-related issues outside of court and litigation. With the sole goal of negotiating reasonable resolutions to divorce disputes, a participation agreement is a vital element of San Diego collaborative law and lays out the terms of the approach, disqualifying the attorneys from further participation in the case should the collaborative efforts fail and should the spouses require litigation.


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Q: When is litigation preferred over mediation?

A: Often in mediation one party can overwhelm the other. If there is not a balance of power within the mediation process, it can result in an unfair decision. In addition, if one party is fighting for an unfair result that favors that party, and tries to bully or intimidate through the mediation process, then a judge in a litigated setting may order a more fair result.


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Q: Can I retain a lawyer to fight for me and still mediate?

A: Yes. In fact, a great deal of our practice at the Law Offices of Nancy J. Bickford, APC is to work with both parties who are mediating. When needed, we can advocate strongly for our client, especially if a client is fearful of opposing his or her spouse alone in mediation.


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Q: My wife refuses to provide me with information regarding her bank account. To avoid going back and forth on this issue, can I get copies of her bank statements directly from the bank?

A: Yes. In San Diego family courts, you may subpoena third parties, such as financial institutions, to obtain bank records. This is called discovery. There are certain requirements that must be complied with to obtain discovery through third parties.


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Q: What is a Marital Settlement Agreement?

A: A Marital Settlement Agreement (“MSA”) is a final agreement entered into by parties in a divorce proceeding. An MSA is the alternative to a trial on all disputed issues in which a judge makes an order that binds both parties. If they decide to negotiate an agreement outside of court, the parties and their attorneys can craft an MSA which divides all marital property, contains custody and visitation provisions, awards child and spousal support, an contains many other creative and unique solutions. The advantage of reaching a divorce settlement in San Diego and entering into an MSA is that the parties are able to control the outcome of the case.  In court, the judge makes decisions that the parties must abide by indefinitely.Additionally, the rate of compliance with an MSA is higher than that of a judge-created court order. Drafting an enforceable, competent, and clear MSA is a complex procedure.  It is important to meet with a Certified Family Law Specialist to discuss this complex and highly important area of family law.


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Q: What is an Ex Parte proceeding?

A: An ex parte proceeding is an emergency hearing requested by one party.  In San Diego County, notice must be given to the opposing party of an ex parte hearing by 10:00 a.m. the court day before the hearing.  Notice is not required in only a limited number of circumstances. In order to be successful, the requesting party must show that he or she will suffer irreparable harm if he or she is not permitted to bring the motion without a regularly scheduled hearing.  In family court, both sides must meet and discuss the dispute before appearing in court.  Failure to do so may result in sanctions, including denial of the ex parte request.


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Q: Can I get access to my former spouse's financial information after our divorce is final?

A: Yes. According to California case law, parties are not required to provide updates to their former spouses if there is a change in their finances.  However, the financial situation of a former spouse may be crucial if ongoing San Diego child support and spousal support orders are still in place. A change in a party’s ability to pay support may warrant a modification of a support order. Under the California Family Code, parties may request a financial update from their former spouses once every twelve months. Once the request has been properly made, the former spouse is required to complete an updated Income & Expense Declaration outlining all of their most recent income and expenses and provide his or her most recent tax returns.

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Q: When might supervised visitation be appropriate, and if it is, who provides the supervision?

A: Supervised visitation may be appropriate in cases where there are issues of substance abuse or domestic violence, or when it would not otherwise be appropriate for a parent to be alone with their child or children.  Supervision of visitation may be done by either a professional or non-professional provider. Both are subject to various qualifications set forth in California Rule of Court Standard 5.20 Uniform standards of practice for providers of supervised visitation.   Non-professional providers cannot charge for their services and are typically family members or friends.

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Q: Attorney-Assisted Divorce: What will our law firm do?

A: Attorney-Assisted Divorce is a unique form of “consulting” based legal services in which the attorney merely advises the client, helps correct legal paperwork and oversees the divorce process. For instance, if you are in the beginning stages of your divorce, our law firm will do the following all for a flat fee:

  • One of our highly experienced and knowledgeable divorce attorneys will meet with you for a free 30 minute confidential consultation to determine whether the specific facts of your case meet the criteria for the attorney-assisted divorce option;
  • Our paralegal will prepare your Petition/Response, preliminary disclosure documents, and, if there are minor children, a UCCJEA form;
  • Your Petition/Response, preliminary disclosure documents, and UCCJEA form (if applicable) will then be reviewed by one of our highly experienced and knowledgeable divorce attorneys;
  • Our paralegal will file your Petition or Response in court;
  • Our paralegal will inform you on how to serve your spouse or offer for you to use our process server for an additional fee; and
  • If you and your spouse agree on all issues, a Marital Settlement Agreement can be prepared for an additional fee.

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Q: Attorney-Assisted Divorce: What will our law firm not do?

A: Since the Attorney-Assisted Divorce option does not involve formal representation, our law firm will not do the following:

  • Appear in court on behalf of you;
  • Appear as your attorney of record on your legal paperwork;
  • Be responsible for your timelines/deadlines;
  • Charge an hourly rate;
  • Be available on a constant basis for phone calls and emails; and
  • Our paralegal will not give legal advice.

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Q: What are the typical candidates for the Attorney-Assisted Divorce Option?

A: At the Law Offices of Nancy J. Bickford, APC we offer a flat-rate attorney-assisted divorce option for clients whose particular legal needs meet the criteria for the program. Our typical candidates include those who are W2 employees with minimal assets. If you have significant and more complex assets, you are likely a more ideal candidate for our mediation services rather than our attorney-assisted divorce program. However, if you are unsure whether you meet the criteria for our program, please schedule a free 30 minute consultation with one of our experienced attorneys and we will determine the scope of your case and help guide you to which option will better fit your case.


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Q: What are the benefits of Mediation?

A:

  • Children don't have to take sides and can avoid getting "caught in the middle".
  • Parents may learn how to improve communication and negotiation skills, making it easier to settle future disputes.
  • A mediated agreement takes into account the family's special needs.
  • Divorcing couples are often better able to accept and respect a mediated agreement that they have worked out together.
  • Mediation is quick and can save substantial time and money compared to cases that proceed through the Family Court system until Final Hearing by the judge.
  • Mediation is confidential, unlike most court proceedings which are of public record.

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Q: What issues will be discussed or resolved?

A:

  • Time-sharing, Co-parenting and Child support
  • Paternity issues
  • Child Custody - who will make the day-to-day decisions about the children's lives
  • How the marital property, assets and debts will be divided between the parties
  • Issues regarding spousal support (alimony)
  • Any other family law issues unique to the parties

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Q: What does the mediation process entail?

A: Each party will be allowed to explain their side of the case and their views on how they would like the issues resolved. Through the negotiation process, the mediator works with the parties to find common ground and suggest possible solutions to their differences. The mediator may also meet with each party separately and confidentially in what is known as a “caucus”.

The issues agreed upon are produced in writing, reviewed, signed by the parties and submitted to the judge for approval. Discussions during mediation are considered confidential and cannot be used against you in court.


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If you wish to schedule a consultation with Nancy J. Bickford, contact us at (858) 793-8884.

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