Frequently Asked Questions (FAQs)

The family law attorneys in the San Francisco law office of Lerner • Poole, LLP, frequently encounter these questions from clients contemplating divorce:

Q.  When can I get divorced?

A.  California maintains a six-month residency requirement before a petition for divorce may be filed.  At least one spouse must have lived in the state for six months before a divorce can be initiated.  There is also a three-month residency requirement for the particular county in which you are filing the petition.  If you do not meet the residency requirement, you can still file for legal separation and later amend your petition to ask for a divorce.

Q.  How long will it take before the divorce is final?

A.  At a minimum, the divorce will not be finalized until six months from the date the responding spouse is served with divorce papers.  The length of the process depends on the complexity of the issues involved, and whether you use mediation, collaborative law, or litigation to resolve the divorce.

Q.  Can I still access a joint bank account after divorce papers have been filed?

A.  Unless some action is taken to freeze the account, each spouse retains equal management and control over community personal property, which includes money in a joint bank account.  However, each spouse owes a fiduciary duty to the other with respect to such property and therefore may not act unreasonably in regards to the property.

Also, when a divorce is filed, both parties are generally restrained from transferring, disposing, or concealing any property without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life.  If you are concerned your spouse may remove funds without your knowledge, you may wish to consider freezing the account or placing the money in escrow until the divorce decree is made.

Q.  What is the difference between physical custody and legal custody?

A.  Physical custody refers to who the child actually lives with and when.  Legal custody refers to the duty to make decisions regarding the child's education, medical care, and religious upbringing.  In most cases, the presumption is in favor of some form of joint custody, as the court believes frequent and continuing contact between children and parents is paramount. Any history of domestic violence in the family may persuade the court to grant custody to one parent only.

Q.  Can I move out of state with my children?

A.  Generally, if you have been granted sole custody, you may move away with the children unless the other parent can show that the move would not be in their best interests.  If you share custody, then it is up to you to prove that the move is in the best interests of the children.  For this reason, you should not move away with the children without first consulting with a family law attorney.

Q.  How much support will I have to pay?

A.  Child support is determined according to statutory guidelines based on factors such as each parent's earning capacity, the number of children, and their medical and other expenses.  The non-custodial parent is generally required to pay support to the custodial parent.  Spousal support (also known as alimony or maintenance) may or may not be ordered depending on a variety of factors, including both spouses' incomes and earning capacities, the length of the marriage, and how much each spouse contributed to the other's marketable skills.  A link to a calculator to help you estimate the amount of support which may be ordered may be found on our resources page.

Q.  How long will I have to pay support?

A.  Child support is usually ordered until the child turns 18, but may continue until he or she is 19 if the child is still in school.  If the child is disabled and unable to be self-sufficient, support may be ordered into adulthood or indefinitely.  Spousal support generally terminates if the receiving spouse dies or remarries. The amount and duration of the spousal support will depend on many factors, including length of the marriage, the age of the parties and the earning capacity or employment  history of each party.