Frequently Asked Questions Regarding Family Law Matters
Our FAQ section offers detailed information about a full range of important questions that affect divorce cases. The responses address key subjects including business valuation, child custody, spousal support, modification of orders and more. Click on the dropdown menu for a full list of topics, then choose the specific questions applicable to your situation.
Questions related to:
How Long Do Restraining Orders Last?
A permanent restraining order may be initially granted for up to five (5) years, and an extension can be granted, extending the restraining order for another five (5) years. The court may order that the restraining order continues for the perpetrator’s lifetime.
How Long Does it Take to Complete a Divorce?
Clients often ask how long it will take to complete his or her divorce. This question is an incredibly difficult one to answer. The answer depends on a number of factors and the actions and inactions of a number of people. A divorce involves two parties, two Orange County divorce lawyers, a family law judge and often times, experts. If either party does not have a desire to resolve the issues and/or retains an Orange County divorce lawyer with the ‘litigate everything mentality,’ the likelihood of a long and expensive divorce is greater. If either party has anger management problems or a psychological disorder, there is a higher likelihood of an expensive and time-consuming divorce.On the other hand, if both parties and their Orange County divorce lawyers desire to settle a case, are willing to compromise and view fairness in a similar manner, a divorce may be resolved quickly and inexpensively. The vast majority of divorces do not result in contested hearings. The ‘War of the Roses’ type of divorce is the rare exception, not the rule.
Some issues are simply more complex or time consuming than others and may extend the divorce process. For example, child custody, domestic violence and business valuation issues may extend the time required to resolve a divorce. High net-worth matters generally involve more assets and more complexities, which may lead to more time to resolve a divorce. Even with difficult issues, a divorce can be settled in a timely manner if the parties conduct themselves in a reasonable manner and retain Orange County divorce lawyers who have the desire to solve problems rather than create them.
How Long Does Permanent Spousal Support Last?
Divorce courts have wide discretion in setting the length of time that spousal support is to be paid. Generally, spousal support cannot be terminated in a long-term marriage unless the spouse is self-supporting.
Duration of Spousal Support
In a long-term marriage, a spousal support order generally provides that the payments will continue until the death of either party, the remarriage of the payee-spouse or future order of court.
It is the goal of the State of California, for supported spouses to become self-supporting within a reasonable period of time. In marriages of less than ten years, “reasonable” is generally defined as one-half the length of the marriage. A long-term marriage is a marriage of ten years or more in duration.
Generally, divorce courts will order spousal support to be paid for one-half the length of a marriage under ten years In other words, the order will most likely be for two and one-half years after a five-year marriage. However, the divorce court has discretion to order support for a fewer or greater number years. In measuring the length of the marriage, a court cannot add any periods of cohabitation to the length of the marriage (IRMO Bukaty).
Spousal support cannot be ordered by a divorce court in one lump-sum. However, parties may voluntarily agree to a lump sum buy out of spousal support.
How to Use the Minyard Morris Website
If a Prenuptial Agreement is Valid, Can it Replace Some Specific Community Property Laws?
A premarital agreement allows parties to alter many of the community property laws that would apply if they elected to divorce in the future. These agreements, if valid, essentially replace some specific community property laws that impact marital issues.A premarital agreement can convert what would have been community earnings into separate property earnings. Generally, separate property income is defined as being generated before marriage, after separation, or earned by separate property assets during the marriage.
Separate property is property acquired before marriage, after separation, or during marriage by the way of inheritance, qualified gifts, or acquired with other separate property. Premarital agreements may alter these laws.
Separate Property
Community Property
If I Intend to Mediate My Divorce Do I Need a Divorce Lawyer?
Many people believe that you do not need a divorce lawyer if you are mediating your divorce. While some mediations do not require legal counsel, in others, it is virtually necessary. This issue is addressed, in detail, in a mediation article dedicated to this topic. See Win-Win Simple Solution or Financial Disaster for One Person?
If you are contemplating mediation, this article is a must read.
If My Case is Simple, Do I Need a Divorce Lawyer?
If you and your spouse earn comparable incomes that are not substantial, the assets are minimal, there has been no domestic violence, you have agreed to a custody schedule and neither of you own an interest in a business, then you may not need to retain an Orange County divorce lawyer. However, it may still be wise to have a brief meeting with a divorce lawyer to confirm that you are not missing any important issues. Listed in this article are the type of issues and questions that may be important to understand in deciding whether you need an Orange County divorce lawyer.
If My Spouse Doesn’t Have a Divorce Lawyer, Do I Need One?
If neither party has a divorce lawyer, at least the litigation playing field may be level. Of course, one party may be a more skilled negotiator, have a better understanding of financial issues or may intimidate the other side but the fact that that party does not retain an Orange County divorce lawyer makes not having a lawyer a more viable option.
However, if only one party is represented by a divorce lawyer, that party would have a significant advantage.
One concern in this scenario is thinking that your spouse will not be represented by a divorce lawyer, only to learn on the day of trial that your spouse has retained an Orange County divorce lawyer at the last minute.
If One Party Uses His or Her Separate Funds for the Down Payment on a Jointly Titled Home Is That Party Reimbursed?
If a party uses his or her separate funds to acquire real property in joint names, or pay down the loan on jointly owned real property, he or she may be reimbursed if that party can trace the separate funds back to a separate property bank account or prove the facts in some other way. Reimbursement of separate funds used to improve real property in joint names is generally limited to the increase in value resulting from the improvement to the property paid for with separate funds.
Separate Money Used Re: Joint House
If the Community is to be Compensated Relative to an Increase in Value of a Separate Property Business is it a Right to Reimbursement or a Right of Ownership?
The community may be reimbursed for a portion of the increase in value of one party’s separate property business using the Pereira approach, the Van Camp approach, or another equitable approach. Any benefit to the community will be a reimbursement, not a right of ownership.See our Community Right to Reimbursement for a Portion of the Increase in Value of a Separate Property Business Practice Area Page
If the Parties Are Not Married in Which Courts Are Child Custody Matters Heard?
Child custody matters are heard by the family law court regardless of whether the parties were ever married. The focus of the family law court is making child custody orders that are in a child’s best interest. The court’s goal is to safeguard and promote a child’s health, education and welfare. The fact that the child’s parents were never married is not directly relevant.
If the Terms of a Prenuptial Agreement Are Vague Can a Court Look to the Intent of the Parties?
Divorce courts can consider the intent of parties when interpreting provisions of agreements that are vague. This principle has also been addressed in the context of a marital settlement agreement. (IRMO Schu).A party must have sufficient mental capacity to enter into a premarital agreement, which is a contract. The courts have addressed mental capacity and the different levels necessary for different transactions and decisions. (IRMO Greenway).
In a Divorce, May the Community Have a Right to Reimbursement for a Portion of the Increase in Value of a Separate Property Business?
If the owner-operator was paid adequate and reasonable compensation during the marriage, there will be no reimbursement to the community under the Van Camp approach. If the owner-operator was under-compensated but the business distributions used for community expenses exceeded the amount of the under-compensation, the community will likewise not be entitled to any reimbursement.Using the Pereira approach, the owner-operator of the separate property business receives an investment rate of return on the value of his or her business as it existed on the date of marriage, and the remaining portion of the increase in value is reimbursed to the community.
In Determining a Party’s Earnings Relative to Support, Does a Family Law Court Average Earnings Over a Number of Years or Use the Last Twelve Months of Earnings?
The divorce court has wide discretion in determining what period of time to look to in establishing each party’s earnings. However, the court must select a period of time that is reasonable and reflects a representative period of time (IRMO Riddle). In other words, a court should not average earnings over four years in a situation where the party started a new job one year ago.
Representative Period of Earnings
In Determining the Amount of Reimbursement to the Community Relative to an Increase in the Value of a Separate Property Business, Can Selecting One Formula Versus Another Make a Significant Difference in the Amount of a Reimbursement to the Community?
The selection of the formula can make a huge difference in the amount of the reimbursement to the community. Depending upon which formula a court selects, the increase in value of a separate property business during the marriage can be entirely the separate property of the owner-spouse, all community property or part separate and part community.
Right to Reimbursement?
In Order for a DVPA Restraining Order to Issue Must the Parties Be Cohabitants?
Parties are not “cohabitants,” and thus not protected parties, if they do not regularly reside in the same household (O’kane v. Irvine).
In What Courts Are Paternity Cases Heard?
Parentage litigation occurs in the family law courts and the issues are determined using statutes, case law and a number of very important presumptions.Parentage litigation includes a determination of paternity, child support and child custody.
In What Situations Are Stock Options Allocated Between Community Property and Separate Property?
In a California divorce, stock options granted during the marriage, and/or partially vested during the marriage, may have a community property component. Stock options that are earned partially during the marriage are allocated between community property and separate property. Statutory law provides that “earnings” during the marriage are community property. If a spouse is compensated during the marriage, in part, with a grant of stock options that partially vest during the marriage, the stock options will most likely be characterized as being, at least partially, community property. If a spouse’s employment during the marriage results in partial vesting of stock options granted before the date of the marriage, the options will also most likely have a community property component.
Cliff Vesting
Is a Business Valued on the Date of Separation?
The valuation date of a business in a divorce can have a very significant impact on the valuation itself. There is a specific family code section and extensive case law that address the valuation date but generally a business is valued as close to the date of settlement or trial as is reasonably practical. Of course, there are exceptions to this rule. Under some circumstances, a business may be valued on the date of separation. There are, also very specific rules relative to being allowed to present evidence in trial of a valuation date other than the date of trial (IRMO Green, IRMO Duncan and IRMO Stevenson).
Date of Valuation
Impacted Issues
Is a Divorce Lawyer Needed?
Incurring fees with an Orange County divorce lawyer is not the way most logical people would choose to spend their hard-earned savings if they had a realistic choice. If a divorce is truly a simple matter, the importance of a divorce lawyer is less significant than in a more complex matter. The problem is that even less complex divorces often have complex and nuanced issues that often are not recognized by the parties themselves.