Law Office Of Joshua R. Bourne

Frequently Asked Questions about Family Law and Divorce

Q: My spouse lives in another state/county.  Can I still obtain a divorce in San Diego?

A: In order to file for a divorce in San Diego County, you or your spouse must have lived in California for the last 6 months and lived in San Diego County for the last 3 months.

Q: My spouse was in control of the finances.  How do I find out what we own? What if I don’t know the value of our property?

A: Both spouses have a fiduciary obligation to voluntarily provide all information relative to any assets and liabilities and to either obtain all available information or assist the other spouse in obtaining it. (Schnabel v. Superior Court(1993) 5 Cal.4th 704.)

Q:  How does the court determine the amount of spousal support?

A:  The California Family Code mandates the court consider all of the following factors in determining spousal support (California Family Code, section 4320):

• Earning capacity and marital standard of living
• Contributions to the supporting spouse (the extent the supported party contributed to the education, training, career, or license of the supporting party)
• Ability to pay and earning capacity
• The needs of each party and marital standard of living
• The obligations and assets, including the separate property of each spouse
• Length of the marriage
• Gainful employment and the interests of the children
• Age and health of the parties
• History of domestic violence
• Conviction of domestic violence
• Tax consequences
• Balance of hardships to each party
• The goal that the supported party will be self-supporting within a "reasonable period of time"
• Any other factors the court determines are just and equitable

Q: What if my spouse refuses to disclose what we own?  What if my spouse is hiding funds?

A: The California Legislature has declared:  "It is the policy of the State of California (1) to marshal, preserve, and protect community and quasi-community assets and liabilities that exist as of the date of separation so as to avoid dissipation of the community estate prior to distribution, (2) to ensure fair and sufficient child and spousal support awards, and (3) to achieve a division of community and quasi-community assets and liabilities upon the dissolution of marriage as provided for under California law...In order to promote this public policy, a full and accurate disclosure of all assets and liabilities in which one or both parties have or may have an interest must be made in the early stages of the dissolution of marriage action, regardless of the characterization as community or separate, together with a disclosure of all income and expenses of the parties." (Family Code section 2100(c).)

Q: How can I investigate and determine our assets?

A:   There are four ways to obtain discovery in family law proceedings:

     1. Informal discovery

     2. Formal discovery

     3. Independent Investigation

     4. Corporation code rights (spouses owe a fiduciary duty to each other as business partners)

A spouse has a right under the Family Code to "informal discovery" of "all material facts and information" relating to the earnings, accumulation and expenses of each spouse and the identity, characterization and value of assets and liabilities.

Under the Civil Discovery Act, a spouse has the right to "formal" pretrial discovery of matters which will either be admissible in evidence or appear reasonably calculated to lead to the discovery of admissible evidence.  This includes depositions and interrogatories (questioning the other spouse), among other things.

Q: Will my wife/husband be allowed to move away with the children?

A: Family Code section 7501 states that the parent entitled to custody determines the residence. A parent wishing to block a move has the burden to show that it would not be in the "best interest" of the children for the parent entitled to custody to move away.

Q:  What if we never "officially" were married?

A:  Nonmarital partners may be able to enforce express or implied agreements for support or property sharing.  (Marvin v. Marvin (1976) 18 Cal.3d 660.)  This is called a Marvin claim.  Consult an attorney to determine whether you may be able to enforce your rights through a Marvin claim.

Q: What about my privacy?

A: In general, most court proceedings are public.  However, the Family Code contains a special provision for closing proceedings and sealing files connected with the proceedings, which can be used to protect your privacy rights.

Q: Can I keep the house?

A: All divorce cases are different, and there is no way to know for sure.  Often, some of the community property must be sold for an equitable result to occur.  The Law Office of Joshua R. Bourne will work to ensure your rights.

Q: What do I need to show to get a divorce?

A: California is a "no fault" state.  Therefore, you do not have to show that your spouse was abusive or at "fault" in order to obtain a divorce. 

Q: How does the Court typically deal with child visitation and custody problems between my spouse and I?

A: The Court will generally send both you and your spouse to meet with a mediator at Family Court Services to attempt to work out an agreement to any child custody problems. If this does not work, you may need to engage in litigation and go to Court to make your request and state your case. The Law Office of Joshua R. Bourne can help.

Q: Do I need an attorney if we agree on everything?

A: There are often complicated issues even in an "uncontested divorce". A trained family law attorney can help you with these issues.

Free Initial Consultation.  Until you actually speak to an attorney and sign a retention agreement, we cannot represent you.  Call us today at 619-238-8242.