FAQs
Frequently Asked Questions about San Diego Divorce Laws
Below are some frequently asked questions and answers about divorce law in San Diego.
Q: What is a Certified Family Law Specialist?
Q: When is the earliest date I can return to the status of a single person?
Q: What are pendente lite orders?
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?
Q: What is community property?
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: Can my spouse and I mediate our divorce?
Q: What are the advantages of mediation over litigation?
Q: When is litigation preferred over mediation?
Q: Can I retain a lawyer to fight for me and still mediate?
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
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.
Q: When is the earliest date I can return to the status of a single person?
A: 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.
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.
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.
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.
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.
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.
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.
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.
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 consult with a Certified Family Law Specialist, particularly one familiar with financial matters, to discuss this complex area of law.
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.
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.
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.
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
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: 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.
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.
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 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.
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.
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.
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.
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. 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.
If you wish to schedule a consultation with Nancy J. Bickford, contact us at (858) 793-8884.