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Divorce FAQ

Your Questions Answered by Oceanside Divorce Attorneys

As you navigate your divorce, you are sure to encounter a lot of questions and uncertainties. Having a skilled attorney by your side can help you address all of these matters. Below, we have provided a helpful FAQ about divorce.

If you still have questions after reading, don’t hesitate to reach out to Fischer & Van Thiel, LLP at (760) 621-7101.

How are gifts received prior to marriage treated during a divorce?

Question: Are any gifts I received while married considered to be part of the assets to be divided between me and my spouse?

Answer: Generally, gifts are the separate property of the party who received them. This is true whether the gift was given prior to marriage or during marriage.

How can I collect from my spouse’s 401k after divorce?

Question: I was awarded monies from my spouse’s 401k in divorce. What forms do I need, or how do I go about collecting?

Answer: A Qualified Domestic Relations Order (QDRO) should be prepared, filed, and served on the 401K administrator. If your divorce judgment did not provide for a QDRO, you should file an Order to Show Cause motion and ask that the court order one. Your spouse’s employer may have sample language for the QDRO.

Can I take my children out of the state while divorcing?

Question: My permanent residence is in Washington State with my four minor children. However, my husband left to California to live with his parents eight months ago when we began to have marital problems. I recently in January came to California with the two youngest children to try to save my marriage and pursue marital counseling. I was served with divorce papers at the beginning of this month in California and have recently found out I have ovarian cancer. I would like to go back to my permanent residence with my two children to pursue cancer treatment until the court date. Is it illegal for me to take my children back to our home until the court date? Or do I need permission from the court?

Answer: Because you have been served with divorce documents, you cannot remove the children from the state. On the back of the Summons are ATROS (Automatic Temporary Restraining Orders). These orders state that absent a court order or the written consent of the other party, the children are not to be removed from the state. However, you can file a motion to request permission to move back to Washington with the children. You will need to respond to the divorce documents within 30 days. Given the complexity of your case, you should consult with an experienced family law attorney.

Can I still get a divorce after filing a dismissal?

Question: I filed for divorce after being married for only one month. A few weeks later after filing, my husband convinced me to stop the divorce and I did. After counseling and trying to work it out, I still want a divorce. Come to find out I filed a “dismissal with prejudice” – can I still get a divorce?

Answer: Yes, you can still file for divorce even after filing a dismissal. You will need to open up a brand-new case with the court, with a new case number. You will file all of the same documents you filed previously.

Can a wife get a house after getting a divorce?

Question: If my husband purchased the house and we are going to get a divorce, can I still be entitled to the house?

Answer: It depends on many factors. In California, any asset purchased during marriage is presumed to be community property. If it is in fact community property, then you will be entitled to any equity if there is any in the house. One of you can keep the house and buy the other person out or you can put the house on the market and sell the proceeds. If the house was purchased after the date of separation, it is presumed to be separate property. However, the funds he used to purchase the house would come into play. There are a lot of factors to look at – we suggest talking to an attorney to make sure that all your interests are being met and you get everything that you are entitled to in the divorce.

What should I do if my ex-husband does not comply with our marital settlement agreement?

Question: What can I do if my ex-husband doesn’t comply with the marital settlement agreement? Our case is in California.

Answer: There are many remedies available to you if your ex-husband does not comply with your MSA. Has your MSA been entered as a judgment yet? If not, you would want to make sure it is entered as a valid enforceable judgment. Once the MSA is a judgment, you can file a motion to compel his performance or a motion for sanctions. You can also file for a wage garnishment is he is not paying you your portion of the community property or if he owes you spousal support. There is also a way to file a writ in order to seize his assets or have an asset transferred to your name. You have plenty of options available to you, it is just taking the initiative in order to obtain the remedy you seek.

Can my sister file for a divorce in the U.S. even though she was married overseas?

Question: We are married in the Philippines, and my sister lives in the States right now. She wants to file a divorce here against her estranged husband who abandoned them when their kids were small. They don’t have any communications with him, and many years ago she learned he was living with another woman. Is it possible to have an American lawyer process it and how much will it cost?

Answer: Yes, even though you were not married in the United States, you can get divorced here. The process to file for divorce requires that you meet the state’s residency requirement, which in California is six months and three months residence in the county you desire to file in. Once you meet the residency requirement you can file for divorce. Every state has different requirements, so you will need to check on your state’s requirements. As far as the cost, every lawyer charges different hourly rates. You will need to come up with a retainer to give to your attorney so they can begin working on your case. A retainer is like a deposit on your account because your attorney will begin incurring costs immediately. Retainers and hourly rates will vary depending on the attorney.

In some cases where you are trying to “lock in” jurisdiction to California but do not meet the required residency requirements yet, you might discuss with your attorney filing for a legal separation, which does not have the same residency requirements and can be amended to a dissolution/divorce after you have lived in the state and county for the requisite time.

Is it unethical or against a legal code for a divorce attorney to advocate against reconciling our marriage?

Question: My wife and I are trying to work our marriage out and hopefully not follow through with the divorce. My concern is her attorney is telling her that compared to other men, I have only changed about 5%. And since we are trying to work things out my wife is holding onto his statement as a matter of fact. I do not want the divorce but this and other statements from him seem to be biased and a conflict of interest. Not only is it untrue but how can he give such advice when he is not a licensed therapist or PhD and how can he assume what my level of change is? Especially when he has only spent about 1.5 hours with me. I have more concerns with these statements, but this is mainly what bothers me. Also, if he does violate some code by doing this is there anything I can do?

Answer: It depends. While there are ethical implications due to the possible conflict of interest that arises when an attorney gives advice that he or she knows will lead to his or her financial benefit, it comes down to motives. Is the evidence so clear that the motive of financial gain is clearly the dominant force behind the advice? Because of the difficulty of that determination, a finding of an ethical violation is difficult. To help explore all available options, it is important to contact an experienced family law attorney.

Is it hard to do your own divorce in California?

Question: My husband and I were only married about 2 years and we do not have kids. We have a joint checking account, and he has a separate retirement fund through work. We have a house together, and our cars are in our own names.

Answer: All of the forms required for a divorce proceeding can be found online and in a courthouse, including instructions on how to complete the forms. There are also family law facilitator offices that can provide legal assistance to you at no charge. Because of various procedural rules, having an experienced family law attorney would ensure a swift resolution of your divorce. Mistakes can significantly delay the process.

Do I have to reveal the fact that I have a 401k plan in my California divorce?

Yes, even if the other party is not going to contest it, you have to reveal your 401k during your California divorce. There are consequences if you choose not to disclose all of your assets and debts during your divorce. Such penalties include having your final judgment set aside and financial penalties.

Can I get divorced from my husband who is in a California prison?

Question: I have been married to my husband, who is in a California prison, for six years. I want to divorce him, but will this be like a normal divorce? Will an attorney help?

Answer: Yes, you can get divorced from your husband who is in a California prison. The procedure will not be any different, but you will still have to have your husband served with the papers in prison. It would be beneficial to speak to an experienced family law attorney who can guide you through the procedure and the difficulties that you may encounter if your spouse contests the divorce.

How long does it take to finalize a divorce?

Divorce cases are all unique and depending on the complexity of the situation and the cooperativeness of the involved parties, they will take different amounts of time to resolve. With the addition of child custody, domestic violence, and property arguments, the situation will become more and more complicated. In general, however, most cases can be finalized within a period of 6 to 12 months.

If you would like to speak with an attorney about your specific situation, contact the Oceanside divorce lawyers of Fischer & Van Thiel, LLP today at (760) 621-7101.

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