At Chung & Ignacio, we are passionate about guiding our family law clients through the legal process. If you are about to embark on the process of divorce, or a post-decree modification, we encourage you to browse through the common questions listed below.
We are always adding to this section, so if you have a question that is not answered here, contact us directly by calling (909) 726-7112.
How might divorce affect my children?
All children are different, but some common emotional side effects divorce can have on children include:
- Poor performance at school
- Disinterest in things that they used to enjoy
- Becoming withdrawn toward friends and family
- Feeling like the divorce is somehow their fault
- Feelings of insecurity and instability
Many professionals recommend that parents get together to tell their children about the decision to divorce. In a calm, loving way, parents are encouraged to explain how this will affect the children, stressing that this is in no way their fault.
Depending on the relationship you have with your spouse, child custody and visitation may become an issue. You may be able to settle on a favorable compromise outside of court through mediation or collaborative law. Alternatively, you will have to go to court to have a judge decide the fate of your children. For couples with children, it may be favorable to avoid court and come to a child custody or visitation decision through mediation or another out-of-court setting.
How will divorce affect my taxes?
If you have been divorced recently, this affects your tax filing status. For example, filing as “married” will produce a different outcome than filing as “unmarried.” If you have obtained any of the following documents, you will file as unmarried for tax purposes:
- Final decree of divorce
- Decree of separate maintenance
- Judgment of legal separation
- Decree of separation
If you are unmarried, you can file as either single, head of household or widow (whichever applies). Being divorced can also affect the tax exemptions for which you qualify. For example, if you qualify to file as Head of Household, your tax rate usually will be lower than it is if you claim a filing status of single or married filing separately, and you may be able to claim credits like the earned income credit.
Another example of divorce affecting your taxes is for individuals who pay spousal support. If you paid alimony to your spouse, you can’t count this as an exemption because it counts toward the gross income of the spouse receiving the spousal support. Alimony is tax deductible by the individual paying it, but counted as gross income for the person receiving it.
What does it mean for a divorce to go into default?According to the California Courts, a default divorce is one in which someone does not respond to a petition for divorce. A default divorce means that you are essentially giving up your right to have a say in the divorce proceedings and all consequences of that divorce. We will help you go over your spouse’s petition for divorce, and if your spouse hasn’t filed yet, we could help you petition first.
According to the California Courts, even if you don’t respond to a divorce petition, you can still work out an agreement that lays out your wishes for:
- Property and debt division
- Spousal support
- Child support, custody, and visitation
The response is called Form FL-120, and the additional response form you will have to fill out and file if you have children is Form FL-311. You have 30 days to file a response to a divorce petition before your case goes into default.
How does remarriage affect my divorce agreement?
Remarriage could potentially affect certain aspects of your divorce, such as child custody and spousal support. After a divorce is complete, both individuals are free to remarry. Remarriage would not necessarily impact child custody unless the new spouse adversely affects the child. For example, if a parent with partial or total custody remarries someone who endangers the child, the other parent could potentially petition for a modification to child custody.
Remarriage is most likely to affect a spousal support order. In order to petition for a change or end to spousal support in California, the petitioner must show a substantial change in circumstances, and remarriage could fit that criteria.
What is a “decree of divorce”?
The term “decree of divorce” or “divorce decree” refers to the completed order from the court. This is the document that officially ends the marriage.
Divorce Judgment vs. Divorce Decree
A divorce judgment is what the judge verbally orders in the courtroom, while the decree is the legal document confirming the divorce judgment.
Divorce Decree vs. Divorce Certificate
A divorce certificate is typically a simple document listing the names of both spouses and the date and location where the divorce was granted. A divorce decree is actually signed by the judge and lists the main outcomes of the divorce.
Anyone can obtain a certified copy of their divorce record. To do this, you will have to request it from the Superior Court in the county where you filed for divorce. The California Department of Public Health can issue you a certificate of divorce, but not a copy of your actual divorce decree.
You will need a copy of your divorce decree if, in the future, you wish to make any modifications to the terms of your divorce, or enforce any of the terms of your divorce. You may also need to provide a copy of your divorce decree for tax purposes or if you wish to take out a loan.
What is the divorce rate in California?
Divorce rates are difficult to come by, but you have likely heard the commonly cited statistic “50% of marriages end in divorce.” Some suggest that California’s rate is as high as 10% over the national average, sitting at 60%. Statistics like these are thrown around so often that they have most people believing the chances of a marriage surviving are abysmal. Truthfully, the divorce rate has been declining since 1980.
Some experts suggest this might be because people are waiting longer to get married, or not getting married at all. Some say sudden surges in divorce rates result from changes in the law, such as when no-fault divorce were introduced in the 1980s.
Some other statistics regarding divorce in the United States include:
- 70% of people married in the 1990s stayed together until their 15th anniversary
- About 65% of people married in the 1970s and 1980s reached their 15th anniversary
- Two-thirds of divorces are initiated by women
- 11% of college-educated people married in the early 2000s divorced by their 7th anniversary, compared to 17% of individuals without college degrees
Will I have to go to divorce court?
Whether you will have to go to court to resolve your divorce depends entirely on your unique situation. A common myth is that if spouses disagree on certain aspects of their divorce, they will automatically have to appear before a judge who will decide the outcome. Even when you and your spouse disagree on the terms, you may not have to resolve your divorce in court.
Below are some popular alternatives to divorce court:
- Mediation - You and your spouse can meet in a series of mediation sessions with an impartial third party (the mediator). You and your spouse can and should come to these sessions with your divorce attorneys. Mediators, unlike judges, cannot make decisions. They only help facilitate the terms of the divorce.
- Collaborative Law - You and your spouse can agree to use collaborative law to settle your divorce outside of court. A lawyer experienced in collaborative divorce can represent you in this type of case. Usually, you will sign an agreement that states you will not go to court unless you cannot reach a settlement.
What are divorce papers and how are they served?
When someone refers to “divorce papers,” they are probably talking about a petition for divorce. This petition is what initiates the divorce process. It is written by one spouse and served on the other spouse. This petition is also filed with the appropriate court (where at least one of the spouses resides).
All courts in California use the same basic divorce forms. The petition to initiate divorce is FL-100. Filling out and filing this form with the court starts the process of divorce or legal separation, and contains information about property division, child custody, and more.
When someone talks about “serving” the divorce petition, that process is known formally as “service of process.” This is fairly simple if both parties agree to the divorce, but exceedingly more difficult if the other spouse contests the divorce or is residing at an unknown location.
What some individuals petitioning for divorce do is hire a professional server or utilize a sheriff. The petition can also be mailed. Whether the petition is mailed or delivered in person, the papers will contain a Notice and Acknowledgement of Receipt that the recipient must sign and return to be filed with the court. If the respondent fails to respond, the divorce could go into default within 30 days.
If you choose service in person, you cannot be the one to serve the papers if you are involved in the case. For example, if you are filing for divorce against your husband, you cannot also serve him the divorce papers. You can have a friend, acquaintance, sheriff, professional process server, or really anyone over the age of 18 who is not part of the case.