Frequently Asked Family Law Questions (FAQs)

Question:

An ex-lover of mine (20 years ago) just approached me out of nowhere about getting tested to see if her son is my child. He is 20 and I live in California. I am trying to find the statute of limitations for child support if indeed I take the test and the child turns out to be mine.

Answer:

Unless the mother has made a claim for child support with the welfare office or her local Department of child support services office, they cannot now collect from you on child support.

Since he is no longer a minor child now that he is emancipated, there are no obligations for child support. You can get tested to see if you are the father, but you do not have to.

If the state has paid out welfare for the child, and it turns out that you are the Father, there can be some potential liability there with having to pay back the state the money they paid out. If this is not an issue, then they cannot now ask you to pay for child support.

Question:

The custodial and non custodial parent agrees that child support should be stopped. Is this possible?

Answer:

Yes, both parties can sign a stipulation stating that no child support will be paid as long as the custodial parent is not receiving aid.

However, the court will retain jurisdiction over child support until the child reaches the age of majority.

This means that at any time, the custodial parent can go to court and request child support.

Question:

I have been separated for two years from my wife, and my kids live with me. Can I get support without filing for divorce in California?

We have not been living together since our separation, and even file taxes separately.

Answer:

You do not need to file for divorce in order to get support.

You will need to go through the court to obtain a child support order so you will have to file something.

You can contact your local Department of Child support services office and they can help you get started.

So while you do not have to file for divorce, you can file for a legal separation.

The court needs to know that you two have in fact separated and there is one parent who is the full time provides and therefore in need of support.

Question:

When parents have joint custody, do both need to approve of a child moving out of state for school?

Answer:

In a situation like this, you can request an order from the Court allowing your child to attend the school.

You would file what is called an order to show cause and get a hearing date.

You will want to present evidence as to why going away to school is in the child’s best interests.

The other parent would have to submit evidence as to why it is not in the child’s best interest.

The judge will be able to grant the order in the best interest of the child to move away or not.

Question:

My husband was verbally and physically abusive towards my children and me. My friends and neighbors have documented this activity. I need to protect our rights. What do I do?

Answer:

If you are in immediate danger you should contact the police. A police officer can help you obtain an emergency protective order. An emergency protective order can last for up to one week and will require your husband to stay away from you and your family.

If you need protection for more than just one week, you can request a temporary restraining order. Any family law attorney can help you in filing the necessary paperwork for a restraining order.

Additionally, there are many self-help centers and domestic violence programs at the courthouses in California.

You can also contact the National Domestic Violence Hotline at 1-800-799-7233.

They can give you information regarding shelters, legal assistance, and programs that are available to help you.

Question:

My wife and I have been married since 2002 and we have two children, 8 and 5 years old. She kicked me out of the house and now wants to keep the kids.

She is not a US citizen and cannot become one. My kids and I are born and raised in California. What should I do?

Answer:

You should file for divorce and custody of the children. She can’t just unilaterally kick you out of the house if you are both on the lease or deed.

However, she can keep the kids from you until there is a court order that the police can enforce. In order to protect your rights, you should file and get a specific parenting plan laid out so in the event that she tries to keep the kids or take them you can get the police to help you. Without a court order, there is not much you or the police will be able to do.

The court will not likely take her immigration status into consideration when deciding who to award custody to. The Courts look at the quality of the parent and who can provide the most stable consistent environment.

Question:

My wife and I have 5 kids. A month ago she left and moved across town. The 3 older kids (teenagers) stayed with me she took the 2 younger kids, ages 10 and 8.

She then removed them from their school and enrolled them across town at another school against my objections.

I want to do what is best for my kids and was wondering since we are still married and no papers have been filed, is there anything stopping me from picking my 10 and 8 years old up from school and enrolling them in their old school where they want to be?

Answer:

There is nothing stopping you from picking them up, but it doesn’t solve your problem.

There is nothing stopping her from then taking them out of school once again. In order to make permanent orders regarding where the children are to live and go to school, you are going to have to file for divorce or legal separation and get some custody/visitation orders in place.

The Court can make a decision where the kids will go to school. Their old school may be where they know everyone, but is there a new school more convenient for the mom who has to take them and pick them up?

These are factors the court will look at when making these decisions. Are you going to be able to help with the pick-up and drop off if you live clear across town?

You need to think about what is best for the kids in the long run and that may be to go to the new school.

Question:

My wife is accusing me of molesting our son, what do I do?

Answer:

These are very serious allegations that your wife is making.

I would not make any statements to the police unless you have an attorney present.

Even if you have not molested your son, the allegations will be taken seriously.

Typically, Child Protective Services will be involved and will conduct an investigation to see if the molestation allegations are founded or not.

If CPS has reason to believe that the child is being molested, he will be removed from the home.

If not, you might want to consider filing charges against your wife for making malicious allegations against you.

I would contact a criminal defense attorney to help you with your case and do not willingly talk to the police unless you have an attorney present.

Question:

Filing for divorce on the grounds of incurable insanity is a challenge due to the fact that the burden of proof lies on the spouse filing for divorce.

In order to prove to the court that one’s spouse is incurably insane, expert medical and psychiatric witnesses must be presented to the court. It is not a matter of whether or not the allegedly insane spouse suffered from a mental disorder at any point in the marriage.

Rather, it must be proven that the disorder was present at the time divorce papers were filed and that said disorder will exist indefinitely. If young children are involved, proving incurable insanity will benefit the spouse making the claim.

However, the distribution of property or spousal support will likely not be affected.

Answer:

Whatever your reason for pursuing a divorce may be, contact a family law attorney at the law office of Fischer & Van Thiel, LLP, at (760) 757-6854.

Question:

Is there an advantage in filing for divorce first?

Answer:

There is no specific advantage for filing first, but filing, in general, will give you an advantage.

By filing for divorce it puts a restraining order on the community funds to make sure there is no fraud or misappropriation of the community funds.

The community money can be spent on essentials only. This may be worthwhile for you since you are alleging there is theft of money going on. If that money is community property, you can protect is by filing and having her served.

If you are seeking the house as part of the settlement, you may want to consider living in it.

If you are seeking the house as a condition of the settlement, then you should be living in it not her.

If not then you need to ensure that the household bills are being paid especially if your name is on them.

Question:

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

Answer:

There is no set answer for how long a divorce can take in California, but there is a 6-month minimum. The Court will not grant you a divorce until at least 6 months after the respondent is served with the divorce papers or makes an appearance. Even if all the agreements are made and the case is settled, there is a time period the parties must wait until the divorce can be final.

The actual process of separating out assets and coming to an agreement on the settlement can take longer. This process can be a lengthy one depending on how many assets and debts the parties have accumulated during the length of the marriage. In addition, if children are involved it can take longer because custody is at issue.

In order to make sure your divorce moves along and is not held up for any mundane reasons, it is best to seek an attorney’s help. The laws have recently changed regarding divorce and support in California and having an experienced attorney represent you to make sure you get the proper settlement is best. However, it is not mandatory to seek representation. You can choose to represent yourself in your divorce.

Question:

My wife and I are going to divorce, but we have not filed yet. We are always fighting, and my daughter, who is 7, is very stressed with the way we are living.

Can I move out with her, if I do not move far away and let him see her all the time? He is not happy with my choice. Is this legal?

Answer:

Yes, you can move out with your daughter, assuming there are no court orders already in place regarding custody and visitation.

It is important to maintain frequent and continuing contact between the child and the other parent.

When the court makes custody and visitation orders they will look highly upon the parent who facilitated contact with the child and the other parent.

It is important to make the transition as easy as possible for the child.

Question:

I paid a lawyer to file my divorce papers and he has not completed forms. He is not my attorney on record.

I am now experiencing a second time of weeks of it being impossible to get a hold of him.

My simple divorce has to still be finalized and it has been over a year and a half since I filed.

Answer:

Generally, if you hire an attorney, he or she will determine if there is an attorney of record and file a substitution of attorney themselves.

Therefore, even if the attorney who you hired is your attorney of record, a new attorney you hire can file a substitution of attorney for you and take over the case.

If you are not satisfied with the service you are receiving, you have every right to seek a new attorney. You should consult with an experienced family law attorney for assistance and explore all your options.

Question:

If someone uses the same divorce attorney and the divorce becomes final, can the terms be changed later? For instance, they said they would share custody of the children, but every time it’s my brother’s turn to have the kids for the weekend, his ex-wife comes up with a reason why she needs to keep them.

Can he get custody in writing even though the divorce is already final? Also, his child and alimony payments were determined on his last two years of work.

He has since lost his job and the ex-wife makes more than he does. Can you and how do you adjust the required monthly payments? He “owes” her $5000/month but doesn’t have a job. How is he supposed to pay this?

Thank you for any help you can provide. Signed, a worried sister.

Answer:

This is something that can be easily modified. You would need to file an Order to Show Cause to modify child custody, visitation, child support, and spousal support.

From there the parties would go to mediation and sit down with the mediator to discuss the current custody and timeshare plan. Your brother can then address all his concerns regarding the children at that time.

Support is calculated based on the parties’ income. He would need to submit updated proof of his income and expenses.

If there has been a change of circumstances, the judge can revisit the support amounts and see if they are still the right amount to be paid.

He needs to get the support modified ASAP, as he doesn’t pay arrears will build up and interest could be tacked on.

Question:

Will a divorce court do an investigation to find out which assets I have in California? For instance, could they find out that I have a 401k?

Answer:

The court itself does not do an investigation to find out what assets you have in California. However, during a marriage dissolution, you are required to truthfully and fully disclose all of your assets and debts, including your 401k.

There are consequences for failing to disclose all of your assets including having the judgment set aside, having the asset that was not disclosed given in its entirety to the other party, and monetary sanctions.

It is very important to be truthful in every step of your dissolution as every form you sign, is signed under penalty of perjury.

Question:

During a divorce and separating finances, will the joint bank accounts with just me and the children be split as community property?

Or will they remain untouched?

The main concern that the savings I, alone created for the kids have to be split with the respondent party?

Answer:

This account would be community property. It was funded with community money, therefore it is community property.

Had you set up the account as a trust for the benefit of the children, you could preserve that account as the children’s.

You can definitely try and argue that it is the children’s money especially if you had proof that the account was established for the children and your spouse knew of this arrangement and agreed to it.

You could also sit down with your spouse and ask that you both enter into a stipulation that the account is maintained for the children.

He may agree to it, if not you will have to litigate this matter.

Question:

What is the determination concerning what rights do each of us have as far as allowing others (her 22-year-old son) to live in our house? Thank you.

We divorced but own a house together. She has allowed her 22 yr old son to move back in.

Answer:

This is something that should have been spelled out clearly in your divorce judgment.

There should be a provision in either your marital settlement agreement or stipulated judgment that lays out what the rights are regarding the house. The house is owned by both of you, so she must have been given exclusive use of the home.

I would check your judgment and see if there are any provisions in there restricting who else could live there.

If the judgment reserved jurisdiction over the house to make further orders, then you can file a motion asking for specific orders that the son not be allowed to reside in the house.

You would need to have evidence to support why he shouldn’t be able to live in the house.

Question:

What are the requirements for filing for divorce or dissolution of marriage in California?

Answer:

At least one spouse must have lived in California for at least 6 months and in the county in which the couple is filing for at least 3 months.

Question:

Is alimony only paid from husband to wife?

Answer:

It is true that most alimony payments are from husband to wife, simply because men are traditionally more likely to be the wage-earner in a given marriage.

However, the law itself makes no distinction between genders, and simply awards alimony based on economic and financial factors.

If the husband in a marriage stayed home while the wife worked, the court would order the wife to pay alimony to the husband.

In other words, the imbalance between alimony paid by men and women is due to factors independent of the law.

Question:

My friend is thinking of divorcing his wife but he is scared that she will get everything. He is in the Army and she works at a factory.

They got married a couple about 5 years ago. Now she is verbally mean and she has used weed. They have 3 cars.

If he files for divorce will he have to pay her support?

Answer:

The law in California allows spousal support to be awarded based on the parties’ income and certain factors the court looks at such as ability and opportunity to find work.

California wants the supported spouse to become self-supporting, but the Court does not want to leave one spouse with no sort of income or resources especially if the party is not employed.

The military has its own laws regarding the payment of support, but these can be superseded by a Court order. Typically in the military, it is ordered that one half the BAH is given to the spouse as support. The Court looks at multiple factors that include income, the standard of living during the marriage, income, age, and education.

Even for a short term marriage such as yours, the judge will likely award a support order but that is taking all factors into consideration.

The standard in California is that support is awarded for half the length of the marriage. In this case, the longest period of time would be 2.5 years and the amount would be determined by the income of both parties.