Common Divorce Questions

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1. What is an uncontested divorce?

An uncontested divorce is one in which the parties negotiate their own settlement rather than going to trial and letting the commissioner or judge decide the issues for them. Many people find that an uncontested divorce is advantageous for several reasons. The process tends to be faster and less expensive when the divorce is uncontested. The parties maintain control over their futures by reaching their own decisions. The Court does not impose a judgment on them after a trial. The parties are also better able to maintain (or establish) a civil relationship if they are not involved in protracted litigation with all of the positioning and leverage that a trial may invoke. The reduced hostility makes it easier for divorced parents to raise children together.

An uncontested divorce agreement can be accomplished through direct negotiation between the parties, or through mediation.

2. Why doesn’t become directly involved in divorces?

Any action in Court is has the potential to involve difficult issues and technical rules of evidence and procedure. While many people do choose to handle such matters themselves, it is sometimes necessary to consult with an attorney. Divorce litigation also has the potential to transform into a high stakes game. Your future or your children’s future may be at issue. Experienced legal assistance may become necessary.

If an attorney represents your spouse, if you are involved in an abusive relationship, if your divorce involves financial issues that you do not understand, or if you do not agree on any major issue, you may wish to consult an attorney. is here to help with the relatively simple situations and divorces wherein the parties are able to reach their own decisions. We do not provide the legal advice that a contested matter may demand.

3. I understand that cannot provide legal advice. Where can I go for help?

Experienced family law attorneys are the best source of divorce related advice. Alternatives include mediators, therapists and psychologists who are experienced in the field. These sources are especially useful because they can work with both of you. Under most circumstances, a lawyer can not do so.

It may be helpful for you to speak with divorced friends or family members to learn what worked for them, and what did not. If children are involved, it is especially helpful to talk to divorced parents to learn what they did to help their children through the process, or what they might do differently if they did it over again. In some communities, you will find divorce related support and discussion groups by checking with schools, mental health centers, pediatricians, and libraries.

There is also a large selection of divorce related books available through all of the usual sources.

4. What issues need to be considered as we discuss our divorce settlement?

Almost every divorce requires that decisions be made regarding real and personal property division, distribution of debt, health insurance, and tax issues. Where children are involved, there are also Custody and support decisions to be made. Where the parties have been marries for several years, and one party earns more than the other, there may be a spousal support obligation to consider. The form packages and instructions will help you to identify the issues associated with your specific situation. It is generally better to request relief that you may not be entitled to, than to omit requests for relief that you would have been entitled to.

5. How are child Custody and visitation issues decided?

As with any other divorce related issues, child Custody can be resolved by agreement between the parties, or by court order after a contested hearing.

Because children are involved, the courts tend to scrutinize child Custody agreements more closely than other agreements. However, most courts feel that parental decisions should be honored unless they are clearly contrary to the children’s best interest because the parents are deemed to be in the best position to understand their children’s needs.

In a contested situation, the Custody mediator or a member of the conciliation court interviews the parents, and sometimes the children, and may make Custody and visitation recommendations to the court. As a general rule, the court then hears evidence at the order to show cause hearing or trial pertaining to, among other factors, the parenting skills of each parent, the bond between the children and each parent, the bond among the children, and the ability of each parent to recognize the importance of the other parent to the children. If the children are of an appropriate age and maturity level to be consulted, their wishes are important as well. Any given case may present a variety of other factors, which are necessary to a proper judicial determination of Custody and visitation.

In an uncontested situation, the parents should consider the same factors in reaching Custody decisions.

6. What is Joint legal Custody?

Joint legal Custody is a legal doctrine that affirms the right of both parents to remain involved in the important decisions concerning their child’s health, education, and welfare. An award of joint legal Custody should serve to reassure a non-Custodyial parent that he or she will remain as an important presence in the child’s life.

California law presumes that joint legal Custody is in the child’s best interest and requires the court to start its analysis from there. In other words, the court must award joint legal or make a specific finding that joint legal Custody would be detrimental to the child. A denial of joint legal Custody might be based on a finding that spousal or child abuse has occurred or on a finding that the parties have such extreme communication problems that they can not work together for the benefit of their children.

Joint legal Custody does not mean that a child will share his or her time equally between the parents.

7. How does physical Custody work?

Physical Custody is exactly what it sounds like. A child resides with his or her physical Custodyian. In an uncontested situation, the court will usually approve shared physical Custody arrangements that divide the child’s time with the parents roughly equally. It is not unusual for a court to award joint physical Custody in a contested situation, but unless the parents live in close proximity to one another, it may present problems of logistics.

8. How is child support determined?

Child support in California is based upon statutory child support guidelines that determine the amount of child support to be paid. Although it is possible to work the figures out using the complex formula set forth in the Family Code, virtually all courts use a special legal software program to compute the figures.

9. How are retirement funds divided?

Distribution of retirement funds requires special attention so that the tax advantages associated with such funds will not be inadvertently lost.

A Qualified Domestic Relations Order, or QDRO, is a document that transfers a share of retirement funds from the spouse participating in the retirement plan to the nonparticipating spouse. A QDRO is intended to transfer the agreed upon portion of the fund to the nonparticipating spouse while protecting the tax benefits which make these funds such attractive investments.

Typically, QDROs are drafted after the divorce has been concluded. The QDRO must be approved by the fund administrator, signed by the parties, and entered by the Court as an order. The order is then registered with the plan administrator.

If your situation requires a distribution of assets through a QDRO, contact the pension or retirement plan administrator for plan requirements and forms. Most administrators have these forms available for their members, and they are happy to help with the completion and registration of QDROs.