Answers To Common Legal Questions
It is natural to be filled with questions when facing any legal matter. That’s why we’ve provided answers to some of the most common questions clients have when contacting us. After reading through the list below, you are welcome to contact us with your own questions, which we can answer during a free initial consultation.
Where is the court located?
There are four locations for the superior courts in San Diego: Vista (North), El Cajon (East), Chula Vista (South) and downtown San Diego (Central).
Where will my case be located?
Your case will be located in one of the four districts based on your zip code. The court has a zip code list for your reference.
Where can I find the family laws for the state of California?
The California Legislative Information website has the family code for your reference.
What is DCSS?
DCSS is the Department of Child Support Services. DCSS has its main location at the downtown courthouse and a large branch location in Vista.
What is FCS?
FCS is the Family Court Services branch of the San Diego Superior Court. FCS conducts mediation appointments for the parties as their case relates to child custody and visitation.
What is a dissolution?
Under California law, a divorce is called a “dissolution of marriage.”
I just moved to San Diego. When can I file for divorce?
To file for divorce in California, at least one of the spouses must have been a resident of the state for at least six months and must be a resident of San Diego County for at least three months.
How much does it cost to file a dissolution or a paternity action?
As of 2019, the standard filing fee for each party is $435, which the court must receive. In certain circumstances, fee waivers can be granted, so it is important to disclose your financial condition both to your attorney and the court.
What is a retainer?
A retainer is an amount that is required in order for our firm to take your case. This amount is put into a trust account and is not taken from the trust account until the money is earned. For example, if your retainer was $3,500, it is deposited into the trust account and as the firm bills for things related to you and your case, then the funds are disbursed to the firm as earned money. If in the first month, you are only billed $1,000, then only $1,000 is disbursed from the trust account to the firm. Therefore, you would then have $2,500 left in your trust account. A retainer is not the full price of any case but merely is an estimate of cost and depending on what is going on in your case, at most times, will need to be replenished once depleted.
What is a retainer agreement?
A retainer agreement is a contract that you sign with our firm. This agreement outlines the work that will be done on your case. It will include your initial retainer amount and the hourly rates charged by each staff member of the firm. It must be signed before the firm can do any work on your case.
If my partner and I reconcile, will my retainer be refunded?
If you choose to reconcile, any unused retainer funds will be refunded to you.
Do I have to disclose all of my finances during my divorce?
Pursuant to Family Code Section 2104, each party is required to exchange their preliminary declaration of disclosures, which includes the disclosure of all financial information including assets, debts and expenses. Each party also owes the other party a fiduciary duty. However, final disclosures can be waived by both parties prior to entry of judgment.
How much will my divorce cost?
Predicting the cost of a divorce is nearly impossible as each case turns on its own specific facts and circumstances. The following factors can help minimize the costs in certain cases:
- If there is an agreement between the parties to part, the costs can be dramatically reduced.
- If the parties participate in a mediation, either private or through the Mandatory Settlement Conference, costs can also be reduced.
- In general, the more contested issues there are – children, support, division of property – the more costs will be incurred.
I filed for divorce, but I cannot locate the other party. Do I have to serve them?
The court requires that the filing party have the other party served. Options include process service or service by publication.
What is a marital settlement agreement?
A marital settlement agreement is an agreement that details the settlement of a dissolution of marriage. This agreement is signed by all parties and their attorneys of record, is generally attached to a judgment and submitted to the court for the judge to approve and sign.
Who can serve my filed petition?
Anyone over the age of 18 years and not a party to the action can personally serve the documents on the respondent. Process servers are also available for hire should you need someone other than a family member or friend to serve.
What is the difference between a legal separation and a dissolution of marriage?
A legal separation allows you to litigate property support, visitation and custody but does not affect marital status. A dissolution addresses the same factors but also terminates the marital status of the parties.
Do I need to be represented by an attorney if my spouse and I agree on everything?
Although having attorney representation is not required under California, it is recommended to be sure that all your interests are covered. We offer different types of representation that fit each case. Contact our office for a free consultation to see what options are available to you.
What happens to the money that I put into a retirement account during my marriage?
Generally, your spouse is entitled to half of any amount that you put into your retirement account during the marriage.
Can I move with my children to another state?
This is what is called a move-away case. If you would like to move to another state, you must first obtain the consent of the other party. If they do not provide that, then you must file a request for an order with the court asking for the move away. This can be a long process.
Do I have to appear at an FRC hearing?
If you are represented by an attorney, generally your attorney can appear on your behalf as such hearings are for the court to check the status of a case.
What is a “request for order” hearing, and do I have to appear?
In family court, motions are known as “requests for order.” They are noticed, meaning they are set for a hearing at least 30 days in advance and will affect a party’s rights as to property division, custody, support or a combination thereof. A party may or may not need to appear depending on the hearing, whether they have counsel and what the hearing is about.
What is an “ex parte” hearing?
An “ex parte” hearing is a hearing requested on short notice and is designed to address “emergency” issues that will lead to “irreparable harm.” Having said that, not every ex parte hearing is an emergency, as some deal with scheduling issues, and some hearings that are set do not meet that standard.
Do I have to appear at an ex parte hearing?
If you are represented by an attorney, depending on the situation and circumstances, you may not be required to personally appear. With child custody cases, it is recommended that you appear to show the court that your interest in the case is genuine. Again, it does depend on your case and the subject of the issues before the court.
How long will it take for my judgment to be filed with the court?
Unfortunately, the California court systems are backed up and short-handed. The standard waiting period to obtain the filed judgment back from the court is at least four months. There are however other ways to get the judgment entered at the end of each year. Contact our office to discuss the entry of judgment options.
What can I do if my spouse handled all of our finances during our marriage and they will not give me any information?
The process for this is called discovery. This process includes many things such as subpoenaing records and serving requests to the other side to comply and produce documents or records. Again, each spouse owes a fiduciary duty to the other in a dissolution action.
What is a motion to compel?
A motion to compel is filed when one party is not complying with some sort of request such as discovery requests. When a motion such as this is filed, the court will decide on whether to compel the responding side to respond to such requests. Sanctions can also be ordered.
Can I request that my spouse pay for my attorney fees and costs?
You can ask the court to grant your attorney fees and costs to be payable by the other party. However, they are not guaranteed. In most cases, fees are directly related to the “need” the party has for them, and such fees must be “reasonable.”
What is a joinder?
A joinder is when a third party is joined to a case such as a grandparent or a retirement account.
How is custody of children determined in California?
Generally, the family courts of California prefer that the parties reach an agreement to share custody
in some way, shape or form. Having said that, if the parties cannot reach an agreement, a request for order must be filed, the parties will go to mediation (FCS) and then a hearing will occur. At any point during this process, the parties can reach their own agreement, which can be entered as an order by the court.
What is physical custody?
Physical custody is how much time the children spend with each parent, where their primary residence is, and how day-to-day responsibilities are fulfilled.
How are spousal support and child support calculated?
The courts use a guideline calculator such as Dissomaster that requires information from both parties such as time-sharing of the children, income, hardships, tax filing status and other items. Once those items are plugged into the program, it will show how much spousal
or child support or both are according to the guidelines. Most attorney offices have this program on hand and can run these calculations.
How long will I receive child support?
Generally, child support
ends upon the graduation of the child, when the child turns 18 years of age, or the death of the child, whichever is sooner.
Can I garnish a party’s wages for support?
If you have a valid child support order, the order can then be provided to the court with a request for wage garnishment or an income withholding order. If the court grants the order, it then can be served on the employer so that the employer can garnish the support. Keep in mind that any monies garnished by an employer will be sent to the State Disbursement Unit (SDU) first.
What is spousal support, and are there limitations on it?
Spousal support is a device that is paid from the higher-earning party to the lower-earning party. There are many types of spousal support, including temporary spousal support and permanent spousal support. Depending on the facts and circumstances of the case, spousal support can be for a short or a long period of time. The general policy of the state in many cases is that both parties be self-supporting, which is a factor that courts consider.
How long will I be entitled to receive spousal support?
This depends on the length of the marriage and the finances of the parties. If the marriage was at least 10 years, it may be considered a long-term marriage and spousal support can be ordered for at least half of the length of the marriage. If it was a short-term marriage, this is discretionary.
How long does it take to obtain a restraining order and what is the process?
A domestic violence restraining order can be requested from the court immediately, and a temporary restraining order can be ordered by the court on the same day. A hearing will be set after that to hear both parties’ stories, and the court can then order a permanent or longer restraining order if it finds a party is in imminent danger.
If I have a restraining order against me, will it show on a background check?
If the restraining order is a criminal order, it will show on a background check. Keep in mind, violations of civil restraining orders may have repercussions, including criminal charges.
Can I get a restraining order against a neighbor or a person I was not in a relationship with?
Yes. Depending on the facts and circumstances, a person can obtain a civil harassment restraining order to protect themselves.
I wanted to change my name back to my maiden name, but I did not include it in the final judgment paperwork. What do I do now?
If you still want to change your name back, you may file a petition to change your name. You will however be required to pay the court’s filing fee unless you qualify for a fee waiver.
Does Sunnen Law handle name change cases?
During your divorce, if you would like to change your last name back to your maiden name, this can be done within the dissolution paperwork. However, if you would like your name changed for another reason, our firm is experienced in those cases as well. Please contact our office for your free consultation.
What is a prenuptial agreement?
This is an agreement made by a couple before they marry. This agreement may set forth specific limitations on the payment of spousal support, division of property and characterization of property.
Can my spouse and I be represented by the same attorney for the prenuptial agreement?
California law does not allow both parties to be represented by the same attorney. However, one party can sign a waiver, which waives their right to counsel. Our firm strongly suggests that you obtain the proper legal advice as to any agreement you intend to sign to be sure your interests are protected.
What is a postmarital agreement?
A postmarital agreement is an agreement that a married couple signs after they are married. Our firm strongly suggests that you obtain the proper legal advice as to any agreement you intend to sign to be sure your interests are protected.
What happens if I received an inheritance during my marriage?
Chances are this amount is considered to be “separate property” under the law. This presumption, however, can be rebutted by what one does with the funds, including placing another party on the title and co-mingling funds in a jointly titled account. Questions regarding property can be confusing and should likely be addressed to a lawyer.
What is separate property?
Separate property is a property that belongs to only one spouse. It can be a property that was acquired before marriage, gifts received during the marriage, property acquired during the marriage that was never used to benefit the other spouse, or inheritances received before or during the marriage.
What is community property?
Community property is a property that was obtained during the marriage, including financial debts and everything that spouses own together. Under California law, there is a presumption that all property is community property when a premarital agreement does not exist.
What is the USFSPA?
USFSPA is the Uniformed Services Former Spouses’ Protection Act. This act recognizes the right of the state courts to distribute military retirement pay to a spouse or former spouse and provides a method of enforcing these orders through the Department of Defense.
What is the SCRA?
The SCRA is the Servicemembers Civil Relief Act. The SCRA can postpone financial or civil obligations to prevent a service member from being taken advantage of while on active duty and away from home. In other words, a service member who is away from home cannot be taken into court for divorce or child support hearings.
How do we divide my military retirement plan?
There are many military retirement plans that exist. Before dividing them, there must be an agreement or an order from the court to do so.
What is the “BAPCPA”?
“BAPCPA” is the Bankruptcy Abuse Prevention and Consumer Protection Act, which was enacted by Congress in 2005 and is commonly known as the Bankruptcy Code. This code governs bankruptcy.
What is a Chapter 7?
Chapter 7 is a bankruptcy under BAPCPA that liquidates a party’s debts. At the end of this proceeding, all dischargeable debts will be discharged, meaning that the party responsible for them will no longer have to pay them.
What is a Chapter 13?
Chapter 13 is a bankruptcy under BAPCPA that requires debt repayment in part.
Who is a debtor?
The term “debtor” refers to the individual or individuals who file a bankruptcy petition.
What is a meeting of creditors?
The meeting of creditors occurs within 30 days of the filing of the bankruptcy petition and is a public hearing where the Chapter 7 trustee and potential creditors can examine the debtor regarding the nature of their debts and assets.
Is credit counseling required to file bankruptcy?
Under the law, debtors must complete a pre- and post-filing course in credit counseling.
Can I not list some of my debts in my bankruptcy?
The Bankruptcy Code requires that an individual list all of their assets and all of their debts.
How will I know if I passed the means test?
The means test was enacted in 2005 and is a complicated multipage calculation that requires careful analysis based on the specific facts and circumstances in each case.
How long does a Chapter 7 proceeding take?
While each case varies in length, an average Chapter 7 case with no issues should take roughly 100-120 days from the date of filing to conclude.
Is there a way for me to stop creditor harassment?
If one files a Chapter 7 bankruptcy, the “automatic stay” goes into effect for the duration of the case and prohibits any and all creditor contact and actions, absent a court order.
Ask Your Own Questions During A Free Initial Consultation
As with any and all cases, our firm will work with you to choose the best type of representation for you, to create a strategic plan for your case and will work hard for your interests. For every problem, there is a solution. Contact our office
today for your free consultation: 619-255-9551