Brooks Family Law | FAQ
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Frequently Asked Questions

Family Law – Mediation

What does “No Fault Divorce” mean?

California is a “No fault” divorce State. This means that neither party must prove improper behavior on the part of the other to be granted a divorce. Proceeding with a divorce (or dissolution of marriage) on a no fault basis helps to reduce conflict between the parties, decrease stress on the children and avoid painful court battles which may exhaust much or all of the family’s resources.

Should I move out of the marital residence?

You should consult with an attorney before moving out of the family residence. You should discuss with an attorney factors such as (1) Whether your name is on the deed to the family residence; (2) Whether you pay (or contribute toward) the mortgage on the family residence; (3) Whether your spouse has threatened to harm you, or has harmed you, and (4) Whether you and your spouse have minor children who reside in the family residence

How do I get a divorce?

To start the divorce (dissolution) process, you or your spouse will need to file a Petition for dissolution with the court, and will need to pay a filing fee when filing the Petition. The Petition and accompanying documents will then need to be served on your spouse. You should consult with an attorney before filing a Petition for dissolution.

How will our property be divided?

You and your spouse may decide this for yourselves. If you cannot reach an agreement, the court will decide how to divide your property based upon the law of that particular state. California is governed by community property law. Any assets or debt acquired by either spouse from the date of marriage to the date of separation is presumed to be community property and each spouse has an equal right of interest and ownership to such property. Property owned by one spouse before the marriage and is not combined during the marriage generally remains with that spouse as their separate property. Complicated property issues may be difficult to settle on your own. A lawyer can assist you in ensuring that property is clearly and legally divided, and that the division is fair to you.

What if I do not want a divorce?

Your spouse has every right to be divorced, even if you want to remain married. You might suggest that you and your spouse try marriage counseling, before your spouse files a Petition for dissolution.

How does divorce mediation work?

Both parties must voluntarily choose to do mediation and jointly select a mediator. Once you and your spouse both decide to proceed, you would call our office and set up an appointment with the mediator. At the first session, the mediator will explain the process, the mediator’s role, the parties’ role, any ground rules needed to make the process safe and fair for everyone involved, review the written Agreement to Mediate, and answer all of your questions. After the Agreement to Mediate is signed by both parties, the mediator and the parties develop an agenda of the issues to discuss and start gathering information and documents as follows:

  • All the assets and debts so parties can make fully informed decisions about their division of property.
  • Income and expenses so parties can decide what support is needed, the amount of support and for how long.
  • Children’s and parents’ needs and interests so the parents can develop a parenting plan which will work for everyone.

Throughout the process, the mediator facilitates communication so that each party can safely express what is important to them and why. The mediator assists both parties in negotiating an agreement that meets their individual and family needs, interests and values. The goal is for the parties to reach an agreement that will be considered fair and acceptable and honored by both parties now and in the future.

What does “custody” mean?

Custody is a legal term that refers to the responsibilities involved in raising and caring for children, not merely the “rights” that accompany these responsibilities. California recognizes two kinds of custody: Legal and physical. Legal custody refers to the responsibility for making decisions affecting the children, such as medical treatment, academic, religious upbringing, and activities or events their children participate in. Physical custody refers to the day-to-day care of the children and providing a home for them.

Joint legal custody means that both parents share equally in decision-making and must consult with each other about important issues affecting the children’s welfare. Joint physical custody means the children’s care is arranged so that they spend significant time with each parent. It does not necessarily mean that children spend half of their time with each parent, although some parents choose this arrangement.

Can I deny my ex-spouse visitation?

In almost all circumstances, you should not deny your spouse (or ex-spouse) visitation, if there is a court order allowing your spouse (or ex-spouse) time with your minor children. It is not advisable to violate any court’s orders, as there can be very serious consequences. You should consult an attorney if you believe your children should not spend time with your spouse (or ex-spouse).

How do I get custody of my children?

You will need to file a request with the court for orders regarding custody of your minor children. Upon receiving your request, the court will set a date for a hearing on the matter. Your request will need to be served on your spouse in advance of the hearing. Your spouse will have an opportunity to respond to the material contained in your request. The court will consider the information you have provided in your request, as well as the information provided by your spouse in response to your request. At the hearing on your request for custody orders, the court may ask you and your spouse questions to further clarify the facts of your case. The court may have a mental health professional help the court with its decision regarding custody of your minor children.

How is spousal support (alimony) calculated?

There are two types of spousal support—temporary and permanent. Temporary spousal support may be ordered by the court for the period after the filing of the Petition for dissolution until ultimate resolution of the matter (by trial or otherwise). Permanent spousal support may be ordered when the dissolution proceedings are coming to a close (at trial, for example). Temporary spousal support is primarily based on both parties’ incomes, but other factors are also part of the calculation. A computer program is typically used to calculate temporary spousal support. Permanent spousal support, on the other hand, is not calculated using a computer program. There are 14 factors that the court should consider in determining permanent spousal support. If you and your spouse are unable to agree on the amount of spousal support that is to be paid by one spouse to the other, the party seeking spousal support should file a request for spousal support with the court. You should consult with an attorney regarding spousal support.

How is child support determined?

California has statutory guidelines and a statewide formula to determine how much child support will be paid. The court takes several things into account when ordering the payment of child support. First, the number of children is considered. Next, the net incomes of both parents are determined, along with the percentage of time each parent has physical custody of the children. The court considers both parties’ tax filing status and may consider hardships, such as a child of another relationship. An existing order for child support may be modified when the net income of one of the parents changes significantly, the parenting schedule changes significantly, or a new child is born.

What is mediation and how long does the process take?

Mediation is a private, confidential, cooperative dispute resolution process in which an impartial 3rd person facilitates communication between the parties to help them reach a mutually acceptable resolution that is better than their alternatives, such as each party hiring their own attorneys and litigating these issues in court.

Mediation of a full, comprehensive divorce averages between 2 to 5 sessions. Some people take less time and some take more time, depending on the complexity and number of issues, and the level of conflict. The parties and the Mediator will agree on how long each session will be. The parties and mediator together decide when and how often they will meet.

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