San Diego Divorce & Family Law FAQs

San Diego Divorce & Family Law FAQs

Attorney Steven Smith and our legal team at (619) Divorce are experienced in all manner of divorce and family law issues, and we have more than a decade of experience helping clients to protect their rights in all types of divorce cases and disputes related to child custody, child support, alimony, marital property division, domestic violence, paternity, move away and child relocation requests, restraining orders and prenuptial and postnuptial agreements.

Can I file for divorce in San Diego?

In order to qualify for a divorce in San Diego, you must have lived in California for at least six months and in San Diego for at least three months. If you or your spouse meet these residency requirements, you can file for divorce in San Diego.

What are considered grounds for divorce in San Diego?

California is a no-fault divorce state, which means a spouse does not have to prove any wrongdoing on the part of the other spouse in order to file for divorce. Spouses can simply divorce on the basis of “irreconcilable differences,” which means they were not able to get along in marriage. Furthermore, the court will not consider fault in establishing the terms of child custody, child support or spousal support arrangements.

How do I file for divorce in San Diego?

  • The spouse filing for divorce, known as the petitioner, submits a petition to the San Diego County Superior Court to dissolve the marriage.
  • The other spouse, known as the respondent, is served with the paperwork and has 30 days to respond.
  • If the respondent does not respond to the paperwork, the divorce case will proceed, and the divorce will be final six months and one day after the day the respondent was served with the paperwork.
  • If the respondent does respond, the spouses will exchange information about their assets, property and debts. If they can come to an agreement regarding the division of their marital property and other relevant matters, such as child custody and child support, they can avoid a trial.
  • If there are any terms of the divorce settlement the spouses cannot agree on, a court hearing will be scheduled.
  • During the hearing, the spouse’s attorneys will present evidence and witness testimony and argue their cases before a judge.
  • The judge will rule on any unresolved issues affecting the divorce case.

What are the different kinds of divorce?

Uncontested divorce – In an uncontested divorce, the spouses are typically able to work together to come to an agreement on the terms of the divorce settlement.

Contested divorce – In a contested divorce, the spouses are not able to come to an agreement on the terms of the divorce. This is typically the case in high net worth divorces or in divorces where there are minor children involved, when the spouses have a lot to gain or lose in the divorce. Default divorce – A default divorce in San Diego occurs when one party does not respond to the other party’s petition for divorce. In a “true default” case, the party gives up his or her right to have any say in the divorce proceeding. Summary dissolution – If you and your spouse were married for less than five years, have no minor children, have no significant assets or debts, and you agree to not request alimony, you may qualify for a “summary” dissolution, an immediate divorce action that eliminates the need for the requisite six-month waiting period.

Do I need an attorney for my divorce?

You have the right to represent yourself in your divorce proceeding, but it is always a good idea to have a knowledgeable attorney on your side who is familiar with California divorce law and your rights under the law. Emotions typically run high during divorce cases and even the most amicable divorces can become contentious when sensitive issues like spousal support, child custody or high-value assets are involved. Our San Diego divorce attorneys will advocate on your behalf throughout the divorce process and help you get the best possible outcome in your case.

How long will it take to get a divorce?

In San Diego, there is a requisite six-month waiting period from the date you serve your spouse with the divorce papers and the date your divorce is finalized. The actual length of your divorce, however, can vary a great deal, depending on the issues at hand and how easily you and your spouse can agree to the terms of your divorce settlement.

Will I have to go to court?

If you and your spouse are able to reach a mutually agreeable divorce settlement on your own or with the help of your divorce attorneys, you may never have to set foot in a courtroom. However, if there are key issues you are unable to agree on, such as child custody, child support and the division of assets, you may have to work these issues out in court.

How will my divorce affect my custody and visitation rights?

Child custody is one of the most contentious issues in San Diego divorce cases, and for good reason. Child custody generally refers to the legal and practical relationship between a parent and child and has to do with a parent’s right to raise, care for and make important decisions about the child’s healthcare, education and religious upbringing. When parents get divorced in San Diego, they will have to agree to an arrangement for physical and legal custody of their children, or if they can’t agree, let the court decide.

How does the court decide child custody and visitation?

The primary consideration of the court in a San Diego child custody case is the best interests of the child or children involved. When deciding which parent the child will live with and who will have legal custody of the child, the court will take into consideration the following factors:

  • The health, safety and welfare of the children;
  • The nature and amount of contact with both parents; and
  • Any history of abuse, alcohol abuse or substance abuse by either parent.

Will I be allowed to move out of state with my children?

If there is a child custody order in place and you do not have written consent from the other parent, you will have to ask the court for permission to move with your children out of state or out of the country. The court will then determine if the child’s best interests are served by moving away with the custodial parent or remaining in San Diego with the noncustodial parent.

How long can I collect child support payments?

Generally speaking, when parents get a divorce, the parent granted primary physical custody of the children, known as the custodial parent, will receive child support payments from the noncustodial parent. Even when parents are granted joint physical custody, if one parent’s income is significantly higher than the other parent’s income, the higher-earning parent may be required to pay child support in order to help maintain a similar standard of living for the children as they enjoyed before the divorce. In San Diego, child support is mandatory until the child turns 18, or if the child is still enrolled in high school at that time, until the child turns 19 or graduates high school, whichever comes first.

What are the benefits of establishing paternity?

There are many benefits of establishing paternity, depending on who is requesting the paternity action. In a San Diego divorce case, for instance, a father may wish to establish paternity to retain his child custody and visitation rights, or a mother may wish to establish paternity to enforce a court order for child support. Establishing paternity is also beneficial to the child, as it allows the child to inherit from his or her father and gives the child the right to access personal health information for the purpose of identifying potential health risks or medical problems.

What is collaborative divorce?

Collaborative divorce is an alternative method of resolving a divorce, during which the spouses and their attorneys engage in four-way settlement meetings to resolve all of the couple’s divorce-related issues outside of court. Some divorcing spouses prefer the collaborative divorce method because it allows them to avoid a lengthy, costly court battle and gives them more control over the outcome of their divorce.

Am I eligible for spousal support?

If your spouse makes significantly more money than you, you may be entitled to spousal support payments, or alimony, after your divorce. The purpose of spousal support is to allow the lower-earning spouse to enjoy a similar standard of living after the divorce as he or she did during the marriage.

Do I have to pay taxes on the spousal support I receive?

Absent an agreement stating otherwise, spousal support in San Diego is taxable for the supported spouse and tax deductible for the spouse making the support payments.

What is community property?

When it comes to divorce, California follows community property laws, which state that all assets and property acquired by the couple in marriage is community property, with the exception of property acquired by gift or inheritance. San Diego spouses share equal ownership of community property and the property is subject to a 50-50 division in divorce.

How can I protect my separate property in divorce?

Compared to community property, separate property is property or assets owned by a spouse prior to the marriage. If these assets remain your separate property during the marriage, they will generally be yours to keep after a divorce. However, there are some cases in which separate property can “commingle” with marital property and become mixed to such a degree that the separate property cannot be identified and separated during your divorce. If you are getting a divorce and you brought separate property or assets into your marriage, your best course of action is to hire a skilled San Diego divorce attorney who can ensure that your separate property remains protected.

How will my divorce affect my business?

If you are a business owner in San Diego, getting a divorce can be more complicated than usual, especially if the business is considered community property subject to division in your divorce. It is imperative that you hire an experienced divorce attorney who can help you maintain ownership and control over your business if you are considering filing for divorce.

Do I need a prenuptial agreement?

Many business owners, medical professionals and other high-income individuals with significant premarital property sign a prenuptial agreement to protect their property and assets in the event of a divorce. A prenup sets forth provisions for the division of property should a marriage end in divorce, which can help make the divorce process far less contentious and costly for both spouses.

Will the child support agreement in my prenup hold up in court?

A couple can address many potential divorce-related issues in a prenuptial agreement, with the exception of child custody and child support issues. Under California law, child custody and child support terms in prenuptial agreements are not enforceable. The court will always consider the best interests of the children when deciding on child custody and child support issues in a divorce.

What qualifies as domestic violence?

Under California law, domestic violence is defined as a pattern of abuse or threatened abuse occurring between two people who have or formerly had an intimate relationship, or between two people related by blood or marriage. Abuse characterized as domestic violence in San Diego is often physical, but it can also be verbal, emotional, sexual or psychological.

How can I get a domestic violence restraining order?

If you have been the victim of domestic violence in San Diego, you can get a domestic violence restraining order against your abuser to prevent the person from having any contact with you or your loved ones. Many victims of domestic violence in San Diego put off filing for divorce because they fear their spouse will harm them or their children if they pursue legal action. The first step in obtaining a domestic violence restraining order is to request a temporary restraining order (TRO), which typically lasts for two to three weeks, or until your court hearing. At the hearing, the court can grant a permanent restraining order, which can last for up to five years, or even longer if it is extended.