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FAQs

GETTING STARTED

I was just served with divorce papers.  What do I need to do?

Take a deep breath.  You have important things to do, but there’s no reason to panic.

Start by reading the documents over carefully, then read them again. They may not say what you think they say the first time. Also, they may not be as extreme as you may think. People complete the form for the Petition by checking various boxes. A checked box doesn’t mean that will be granted automatically. It just means that the issue is open for determination.

Write down all dates that are in each the document. Be sure to consult an attorney well before those dates, especially if they are hearing dates. You need to find out what your rights and obligations are, and you have a responsibility to respond in a timely manner. If you don’t respond, the other side may automatically get what they requested. It may be difficult or impossible for you to change that later. You’ll typically have 30 days to respond to a Summons and Petition for divorce or legal separation. But the deadlines for responding to a Request For Hearing will usually be sooner. If someone asks the Court for emergency orders, you will usually get notice of fewer than 24 hours.

You could be served with a number of different documents. You likely have received the initial Petition for divorce and a Summons, which essentially explains that this is a real lawsuit and contains automatic restraining orders, which are effective immediately. Be sure to read those so you know what you can and cannot do, and do not violate them. Basically, things need to remain status quo–don’t move the kids out of state, don’t change insurance policies, don’t hide assets or withdraw funds from investment accounts or bank accounts.

You may also be served with a Request For Order for specific interim orders. This can deal with any number of subjects, such as interim support, temporary parenting issues, attorney’s fees, who makes what payments. Your time to respond is different from the Petition. Usually your Responsive Declaration to the Request For Order must be served and filed nine Court days before the specified hearing date to address the matter. You could even have a hearing on an emergency order, which is generally heard the next morning after notice of it is given. That used to be called an ex parte order, temporary restraining order, or TRO.

The issues/boxes checked reflect what the other party wants to happen. This does not mean it is what the Judge will order. You have the opportunity to put your position before the Court also.

What is the difference between divorce, dissolution of marriage, and a disso action?

Technically, the action is called a Dissolution of Marriage in California since the Family Law Act was passed in 1970. Divorce is the term used in other states and in Federal laws. “Disso” is the attorney slang for dissolution of marriage.

I want to try to save our marriage.  What can I do without jeopardizing my legal standing?

Don’t start a dissolution process if you think you can work things out. Filing a dissolution Petition rarely works as a tactic to shock the other person into action. Seek counseling or do whatever you can to sort things out before initiating a legal process. Talk to an attorney about the interim rights and obligations while you are separated but before filing the Petition.

People sometimes say they don’t want to get divorced, but want to protect themselves. If you ask the family law court to do anything, the Petition and Response almost always usually state that the marriage is irretrievably broken. That doesn’t mean you can’t reconcile and drop the action. There are ways that things can be structured to provide some protection while seeking counseling, such as delaying the filing of the Response, or softening it. Still, if you need the Court to intervene, such as for interim support, you need to either file for dissolution or legal separation.

How is legal separation different from dissolution/divorce?

A legal separation action results in a judgment of legal separation. It is not simply each party going separate ways. Legal separation is handled the same as divorce–same issues, same processes, same laws–but at the end, the couple is still married. These days, the judgments are considered the same for most purposes. There may still be federal issues of differences between dissolution and legal separation. You should consult an attorney to learn what those are.

If you are legally separated and later decide you want the marriage dissolved, will need a judgment filed in a separate action, though that generally much less complicated than the initial process.
A request for dissolution trumps a request for legal separation–if one party wants a divorce and the other a legal separation, the Court must grant the dissolution.

Are there any alternatives to a divorce?

Legally, your marital status options are limited to married, separated, and divorced.  But there are certainly a number of ways to end a marriage, such as traditional/litigated divorce, collaborative divorce, and mediated divorce.  See our Services page for more information about these alternatives.

Can a spouse successfully prevent a Court from granting a divorce?

 One spouse cannot stop a no-fault divorce. Objecting to the other spouse’s request for divorce is itself an irreconcilable difference which could justify the divorce. One spouse can make the process more expensive or delay it, but cannot prevent a dissolution.

My spouse and I have no children and do not own real estate.  Do I really need an attorney?

You may qualify for a Summary Dissolution if you both file the joint request and meet the requirements of short term marriage, no children, no real property, and limited assets and debts. These cases are usually handled by parties without retaining attorneys, although it is wise to have an attorney draft or review the documents before filing them.

Even if you do not qualify for a summary dissolution, if you and your spouse can agree to the terms, this is an uncontested divorce. There are ways to handle your divorce yourself, and there are resources for you to get information and access to the forms. Even if your situation seems simple, however, you could be losing out on crucial points you may not have even considered. In most cases, fixing an omitted issue after the fact is much more expensive than dealing with it the first time, and some omissions cannot be fixed. You may not need full attorney involvement, but a consultation with Maralee can keep you from making a significant and costly mistake.

COSTS

What does a divorce cost?

As much as you don’t want to hear this, there is no way to predict that at the outset. Please call the office for the current hourly rate for services. The total cost will depend on the total time involved, complexity of the issues, the tactics taken by the opposing party, changes in facts or strategies, and other factors. You will also need to pay filing fees and other fees. We do use technology to streamline your work as much as possible. We also use a team approach in which the clients are encouraged to gather and organize information to keep the fees lower. While an attorney who has been in practice for a long time and has advanced certifications may cost more per hour than a newer or general practice attorney, there is usually lower cost overall as a more experienced attorney can handle things more quickly.

What are the filing fees?

The filing fee for a divorce Petition and for a Response is currently $435.00 in Nevada County. Filing fees are usually adjusted annually. These are government fees, and are completely separate and in addition to any service or legal fees you may incur. There are other fees for filing many Court papers, including Requests for Orders, Requests for Emergency Orders, Agreements, and other things. If you want to have a Court reporter at your hearing or trial, you may have to pay for the reporting fee. That is generally divided between the parties.

What are my payment options?

During your consultation, Maralee will make an estimate of the time and fees for her to represent you when you and she agree on the scope of the work. Nelder Family Law accepts checks, credit cards and cash. The payment for the consultation is due at the time it is completed.

If you are short of funds, you may want to seek assistance from your family or a financial institution. You can request via a court motion (Request For Order) for the other party to contribute to the fees, but it is unlikely that you will get your attorney fees paid in full.

How can I reduce my costs?

The very best thing you can do to keep costs down is to be well-prepared so that things don’t take any longer than necessary.  See our page about how to get the most from your consultation time for details.

Consider using alternatives to litigated divorce, such as mediation or collaborative divorce.  These are often less expensive.

You can choose to handle many issues yourself, and just pay for consultations and assistance as you need. For example, if you and your spouse are able to work out a settlement, you can consult with Maralee to make sure you have considered everything, and request that she draft the settlement agreement properly for you. This can be done with almost every issue in the process.

This is a “continuing consult.” You’ll pay for attorney time when you have a question, without Maralee becoming your attorney of record. This can include “ghostwriting” where she drafts your documents with your input for you to use as a self-represented party.

Always set reasonable goals. Otherwise, you will waste a lot of time and money pursuing unlikely outcomes.

CONSULTATIONS

Do you provide a free consultation?

Like most family law attorneys, we charge for a consultation.  Even if you do not retain Maralee to represent you, you will be receiving legal advice in the consultation—it is much more than just meeting the attorney.

What can I expect from my first consultation?

This is your opportunity to discuss your situation and get immediate legal advice.  You’ll learn what your rights and obligations are, what to expect, and develop some ideas on the best way to proceed.  This is your opportunity to give the attorney your best overview of everything that needs to be addressed in your situation.  Bring a list of your top ten questions.  See our page about getting the most from your consultation for other things you should bring.

During the consultation, it is important that you determine whether or not you and the attorney are a good fit.  Ask yourself:

  • Do you trust this attorney?
  • Can you understand what the attorney is telling you?
  • Do you feel like the attorney is hearing your concerns and sensitive to your needs?
  • Are you communicating well?

The key is to select an attorney that you can communicate and work well with. If you have the funds, you may want to interview a few attorneys before making your decision.

How do I make the most of my consultation time?

See our page about getting full value from your legal consultation.

How soon can I get an appointment?

We can usually see you within two weeks, or may have a same day cancellation appointment. If the situation is urgent, we will try to accommodate you.

ATTORNEY ISSUES

Is Maralee Nelder an aggressive attorney? —A common, but misguided question

You should select an attorney based on knowledge, experience, and your ability to communicate effectively.

Maralee is a zealous advocate for her clients and will do all she can to get the best results possible. She will not, however, compromise her ethics or engage in game-playing tactics that do not serve her client’s interest. She will always be honest with you.

Learn more about Maralee Nelder.

This is a really small town. How do I know you aren’t best friends with the opposing lawyer?

Yes, most of the family law attorneys in town know each other. The ones who have been here for a long time have had many cases against each other. All of them are dedicated professionals, and all are competitive enough that they can get along, but still faithfully and diligently represent their clients.

THE DIVORCE PROCESS

Top of the Nevada County CourthouseWill I have to go to court at any time during my divorce?

Many divorces do not require a court appearance, with the possible exception of establishing initial parenting, support and other interim orders. Usually, attorneys can negotiate a reasonable solution. Trial is the last resort. It is expensive and uncertain. The Judge may not see things your way. While you have many options for settlement, the Judge has to follow the laws and may not be allowed to order what you want. If there are issues that cannot be resolved, though, the Court will need to decide some or all of the issues. Maralee has tried many cases, and will take the case to trial if that is necessary.

Maralee has a unique approach that serves selected situations very well. If you are confident that you have full information about all the assets, income, debts and other issues, you may want to talk about making a very early settlement offer attached to the Petition. In many of those cases, the other party accepts the offer by not filing a Response, and a Default Judgment is entered as proposed. These need to be very detailed. Typically, this gives the other party an incentive to accept the terms, because it will be a lower cost solution for everyone.

How long does it take for a divorce to be final?

Six months and a day after the Petition is served is the very earliest you can be considered single again, but it can take longer. It depends on how long it takes to get the judgment of divorce filed with the Court. This is not automatic.

What is a marital settlement agreement in a divorce?

The Marriage Settlement Agreement is the contract between the parties that specifies how all the issues in a marriage dissolution will be resolved.  It becomes part of the judgment.  Usually it covers parenting arrangements, support issues, what will happen with all the property, debts, insurance, retirement, and how all these things get divided and/or transferred.  It typically runs 30-50 pages.  This governs everything, so you want it to be done right.

What happens if we reconcile and want to cancel the divorce?

You can stop the proceedings by written agreement at any point in the process before the Judgment is entered. You will not get any refunds of fees that have been paid, and you will still be responsible for payment for legal services that have already been incurred.

What is the day of separation and why does it matter?

California measures the marriage from the date of the marriage to the date of separation. At the date of separation, all efforts (producing income or debt) stop being community property. Also, some different rules can apply to longer term marriages in the area of spousal support. (See next question). This date has financial and other legal implications.

Sometimes the separation date is clear cut, such as when the couple has a big fight and one party moves out. Sometimes, however, this can be very complicated. Even with separate homes, the marriage may be intact. If the couple cannot agree, this may become an issue for the Court.

What is the length of the marriage for federal purposes, and why does that matter?

For California, the marriage is measured from the date of the marriage to the date of separation.  For federal purposes (and in some other states), the marriage is measured from the date of the marriage until the date of the judgment.

The length of the marriage affects certain benefits and rights, typically at the ten-year mark. For example, the Court will generally not close the issue of spousal support when the marriage is at least ten years unless the parties agree to that. The amount may be zero, but the option must be left open. It can also have an impact on federal benefits, such as Social Security, military benefits, and others.

In cases where the ten year mark is close, there may be reasons for delaying or quickly filling, or computing the date of separation (for the state) differently, depending on the situation.

CHILDREN, SUPPORT, & CUSTODY

How can we make things as easy as possible for the children?

Agree to be respectful to each other.  Never criticize the other parent in front of the children, even if they are disappointed by broken promises, or if you cannot afford a necessity because of a missed support payment.  Do everything possible to make life as consistent for them as you can.

If issues arrive, such as custody disputes, missed support, or other matters, seek legal help early before things become a problem.

Who receives custody of the children in a divorce?

There is no absolute rule. There is not a “tender years” presumption any more. Little children do not necessarily go with the mother. A primary consideration will be the children’s patterns before the separation. Usually, the Court prefers some sort of shared parenting arrangement unless that is not safe for the children.

There are two types of custody: legal and physical. Legal custody addresses who has the right and responsibility to participate in making the major decisions, i.e. medical care, schooling, extra circular activities. Physical custody is basically where the child lives. It is very common for some sort of joint physical custody to be worked out. This does not mean that time has to be equally divided, but that the child has significant and regular time with each parent. That can be worked out in any number of ways.

Sometimes successful parenting arrangements take trial and error. What works for best for each child? It may take some time to find the best fit. And sometimes what works best for one child doesn’t work for another in the same family.

Whatever parenting schedule is decided, it is always, always modifiable. The Court is not allowed to accept an agreement which would take away its power to change the child support or parenting schedule. The Court must always have that ability.

How old does my child have to be able to decide where he wants to live?

18. That’s when a person has the right to live where he or she wants. I’m sure that you’ve heard a different number. Children can have input into the parenting arrangements as soon as they are old enough to form and express an intelligent preference. The court must consider the child’s input at age 14 if the child wants to express it, but the Court does not have to go along with what the child wants.

How is child support determined?

It’s an absolute formula in California. The calculation is based on all the income and cash flow of high earner, same of the low earner, some tax and other adjustments, and the percent of time each child spends with each parent.

Do I have to pay spousal support?

If it is requested, the analysis will look at each party’s income, the needs, and the length of the marriage.

For interim spousal support (prior to the judgment), the formula is, roughly, 40% of the payer’s after-tax income – 50% of the recipient’s after-tax income, adjusted for any child support. That formula is because at the beginning of the case, the Court is not likely to have enough facts to make a full analysis.

Spousal support at the time of, and after Judgment, requires analysis of fourteen factors, although not all may apply in your case. This is sometimes called permanent support, although it is usually not permanent. It very much depends on the facts of each unique situation. What sort of employment history does the person seeking support have? What is the level of the person’s education? What assets are available?

How long will spousal support last?

A common misconception is that spousal support continues for half the length of the marriage. The statute says that people are to be self-supporting within a reasonable time. Obviously, this can vary again based on how much employment history the person has, how much education they have or might need to get to be self supporting, their health, need to care for kids, and more. Generally, a reasonable time to get back on your feet is felt to be half the length of the marriage, unless it is a marriage of long duration (over 10 years).

Why does my tax situation matter in child and spousal support arrangements?

The tax situation is crucial to determine and know.  Child support is not deductible to the payer, and it is not taxable to the recipient.  Spousal support, however,  usually is deductible/taxable.  So the tax impact of the spousal support is built into the child support formula to keep the money in the family rather than give it to the government.

This is an important analysis.  People often think it applies only to those in higher tax brackets, but the financial impact is actually greater at the lower end, where a few dollars can make a big difference.

The tax situation needs a comprehensive examination.  This isn’t just looking at dependents, but at all income, deductions and credits, including mortgage interest, retirement savings, various credits, and more.

Maralee Nelder is a Certified Divorce Financial Analyst by the Institute For Divorce Financial Analysts, and has the skills needed to properly assess your situation.

PROPERTY DIVISION

How is property divided in a divorce?

California is a community property state.  This means money earned by either spouse, all property bought with those earnings, and any gains in value during the marriage are considered community property that is owned equally by husband and wife. Similarly, any debts incurred during marriage are generally debts of the couple.  Property owned before marriage, and any inheritances or gifts received during the marriage (including gifts from one spouse to the other, except in rare cases) are separate property.  (Establishing separate property for major assets requires good documentation.)

Absent an agreement, the Court must divide the net community property equally, and give the separate property/debt to the party who owns it.  Equal division does not mean every asset gets split down the middle, but that the net amount going to each party is equal.

If the parties make their own arrangements through a settlement agreement, they can be very creative about division.  The court will generally approve anything they agree to as long as it appears everyone had complete information and made informed decisions.

What happens to retirement funds, pensions, and 401(k) plans in a divorce?

These are resources that will be considered for spousal support, and any contributions (and their growth) during the marriage is community property subject to division.

My ex is making claims that sound outrageous to me.  Could that be right?

Be sure to consult an attorney at least once to get an understanding of your rights and obligations when your marriage is ending.  Otherwise, you may accept terms that are outrageous.

OTHER ISSUES

Can I stay on my spouse’s health insurance?  How about the children?

Divorce is a terminating condition for any insurance coverage, so you will not be able to stay on your spouse’s plan. If there is a real need to keep the spouse insured on that plan, it is possible to settle all other issues, but leave the marriage itself intact as long as no party wants to remarry. Be sure to consult an attorney in such as case.

As for the children, children can generally stay on health plans of each parent. If they are full time students, that may be available beyond age 18.

Do you handle same-sex divorce, custody, and adoption?

Absolutely. Gladly.