FAQ : Frequently Asked Questions
Click on the questions below to learn more.
What type of cases do you handle?
What Can Andy Cook do for Me?
I go to Court, if necessary, limiting the time you have to be there as well, and limiting the amount of talking you have to do. I do all the paperwork for you.
I keep you informed and answer your questions. I listen to what you have to say. I also give you advice.
I do everything possible to put this unpleasant experience behind you with the best outcome in the shortest period of time.
Because I used to volunteer and substitute for some judges and commissioners in Los Angeles and San Diego Counties, I can help forecast what your judge or commissioner is likely to do.
This is an amicable divorce. Can you represent both of us?
Where is my case heard?
From Solana Beach, Rancho Santa Fe and north up to the Orange County border, cases are usually filed in Vista. In the East County, cases are filed in El Cajon, and in the South Bay, the filing location is Chula Vista.
Still have questions about where to file? Click here and look up the zip code where you or the other party lives.
If one party lives in one region and the other party lives in another region, the party who files first gets to choose where to file among the two regions.
Once a case is opened, it usually, though not always, stays at the same courthouse even if one or both parties move.
Where do you appear in court?
What does it mean to “serve” someone with divorce papers?
The person doing the serving then fills out a form called “Proof of Service” and files that form with the Court.
The side that was served has 30 days to file a Response or risk a default judgment.
Note that when a person gets served, he or she is not required to sign anything. Even if the person who is being served refuses to take the papers, the server can simply leave the papers at the individual’s feet.
On the other hand, until a person has been served, the Court is unable to make orders, except for certain emergency orders involving domestic violence, or grant a divorce or paternity judgment.
There are other ways to serve people besides handing the papers directly to them. However, most of these alternate methods have very specific requirements and are not as favored as direct personal service (the method described in this paragraph). Simply mailing the papers is not enough, although mailing the papers via certified mail, return receipt requested, restricted delivery, should work, but only if the person signs the green Domestic Return Receipt from the Postal Service and that receipt is then filed with the Court. Also, this method of service is only allowed if the individual being served is in another state.
I was just served with divorce papers. What do I do?
Remember, the months of the year vary in length, so be sure to count the days properly. Also, when you have your papers served on the other side, you cannot be the person who serves the papers. Someone else who is 18 or older must serve the papers.
There are many other requirements as well. However, the Law Offices of Andy Cook will usually be ready to help you. Make your phone call to 619-515-9900 as soon as possible.
Is it Possible to Stop the Divorce?
Also, the divorce will be dismissed by the court if the case is abandoned. In other words, if nobody does anything after filing for divorce, the divorce will not be granted and the case will be dismissed. Then, if the person who filed (or the other side) decides that he or she really does want the divorce, the case will have to be started all over again.
Do both sides have to sign the papers for the divorce to go through?
What about dating or remarriage?
A person is generally free to remarry after six months from the service of the petition for divorce on the other side, provided that a judgment dissolving the marriage has been entered by the court during that time. If no judgment dissolving the marriage has been entered by the court during the six month period, either party is free to remarry just as soon as the judgment dissolving the marriage is entered.
In certain cases, the court will enter a judgment ending the marriage but resolving no other issues, such as custody or support or property matters. This is called a “bifurcated” judgment. If a bifurcated judgment is entered, dissolving the marriage, either party can remarry after entry of the bifurcated judgment dissolving the marriage.
How soon can I see you?
Do you handle military divorces?
Here’s a test. If you’re considering divorce attorneys, ask them if they know about the change to military retirement made effective 12/23/16 and the other changes that will be made in 2018. If your case involves military retirement, your attorney needs to know the answers. Andy Cook does!
What If I have Custody but then Get Deployed?
What about mediation? Do you handle that?
In these matters, each of the parties had an attorney to advocate for her or his client’s interests. Andy Cook was thus the third attorney in the room. This is an important point, because while mediation is often a more relaxing way to settle a family law case, it is a bad idea to go into mediation without each side having an attorney. This is because a mediator does not offer strategy or legal advice or serve as a lawyer for either side, and yet it is crucial that people going through the family court system have a lawyer representing them.
Besides serving as a privately retained mediator, Andy Cook has served 80 times as a temporary judge at mandatory settlement conferences in San Diego County Superior Court, going back to 2005. Settlement conference judges in San Diego County work with the parties and their attorneys to come up with an agreement and avoid the uncertainty of a trial if there is no agreement. It is also less expensive to settle the case than to pay for a trial, which can last numerous days and be subject to numerous delays.
What are Prenuptial Agreements and Do You Handle Them?
In California, prenuptial agreements are allowed. They are used to state an agreement on what will happen with regard to alimony or spousal support; and what will happen with respect to property — should the marriage end in divorce. For example, the parties, in certain circumstances, can agree that in spite of huge differences in their earning capacities, should there be a divorce, nobody will have to pay the other party alimony or spousal support. Or, even though California is a community property state, should there be a divorce, all money earned during the marriage by one spouse and placed in that person’s retirement account will not be divided and will remain that person’s separate property.
Prenuptial agreements are heavily regulated in California, so you don’t want to handle writing up one yourself. If you do –and if you’re the spouse who really wanted the prenuptial agreement in the first place– you may find yourself upset to learn (in the event of a divorce) that the court will not enforce some or any of the prenuptial agreement. If you’re the other spouse — in other words, the prenuptial agreement is your fiancé’s idea, not yours — you should get an attorney as well, so you understand what you may be giving up.
Don’t wait until the last minute either. If you do, there could be complications.
Note that this answer talks about property and alimony/spousal support. but not child custody or child support. That’s because California family courts are not allowed to enforce a prenuptial agreement that says in the event of a divorce, one person (or neither person) will be free of any child support obligation or will have to pay a certain amount of child support. Likewise, a prenuptial agreement cannot be used to give one person certain custody or visitation rights. In other words, when it comes to prenuptial agreements in California, leave the kids out of it! (There’s a reason for this; child support and custody/visitation issues affect the children, so the judge has to be able to make decisions in these areas should there be a separation or divorce.)
There are also other things that are not supposed to be in a California prenuptial agreement, and certain things that basically have to be in one. Again, this is why you should not try to handle a prenuptial agreement yourself.
Who else do you represent or have you represented?
Other clients are stay-at-home spouses or retired persons.
Clients range in age from their early 20s (or late teens) to their 70s and even older.
Our clients are either married, or unmarried but with children, or in a same-sex registered domestic partnership. Also, some clients are here because of a domestic violence issue.
You are a Certified Family Law Specialist. What does that mean?
Specifically, applicants for Family Law specialization must have been substantially involved in the practice of Family Law in the five years immediately preceding their application and must also have completed at least 45 hours of continuing education in Family Law. Perhaps most importantly, certified specialists must be recertified every five years and must take 36 hours of legal specialist approved education or an equivalent every three years.
Be wary of lawyers who claim on their letterhead or in other ways that their practice is “limited” to Family Law or that they simply “specialize” in Family Law or that they “emphasize” Family Law. None of this means that they are a specialist as licensed by the State Bar of California, Board of Legal Specialization, like Family Law attorney Andy Cook.
To give you some idea of how rare it is to be a Certified Family Law Specialist, like divorce attorney Andy Cook, there were over 10,000 active California licensed attorneys with official addresses in San Diego County in March, 2016, according to the State Bar of California web site. However, based on the same information, out of those 10,000 or more attorneys, only 183 others, besides Andy Cook, were licensed as Certified Family Law Specialists by the State Bar of California, Board of Legal Specialization.
That number drops to 61, according to data from the State Bar of California from January 12, 2018, when you look at family law specialists whose official office is in the 92101 zip code, which encompasses the downtown courthouse at 1100 Union St. That courthouse handles cases from all but two of the communities in the City of San Diego, as well as cases from the cities of Coronado, Del Mar, and Poway.
Also, Andy Cook has been certified as a family law specialist for a long time — over 15 years, to be precise.
You can go to the State Bar of California’s web site to find out whether any given attorney who is licensed in California is a certified family law specialist. If that person is, her or his profile will indicate so. However, this web site, at the present time, does not state, if the person is a family law specialist, how long he or she has been a specialist. It only states how long he or she has been licensed to practice law in California.
What Should I Look for in a Divorce Lawyer?
Also, when you talk or meet with the attorney, is it all about her or him? The divorce process is not funny or something to take lightly, so make sure the attorney seems sympathetic to your situation and is not just making jokes, or treating you like someone who doesn’t matter.
Constant interruptions in the meeting by phone calls or other members of the staff constitutes rudeness at best and disorganization or other problems at worst.
Does the attorney seem rushed and not willing to answer your questions. Does he or she get defensive when you ask certain things?
Does the attorney explain things in a way that you can understand? As alluded to above, does the attorney ask questions about you and seem interested in what you say?
Does the attorney practice in any area of law other than Family Law. Hopefully the answer is no, because a person who handles just one area of law is more apt to know what he or she is doing than someone who dabbles in a number of fields but really doesn’t know the ins and outs of Family Law.
Do you Know the Family Law Judges?
Too be more specific, Andy Cook is well known by the judiciary, not only because of his service on the Board of Directors of the San Diego County Bar Association, but because he had cases against two of San Diego County’s family law judges and two of the county’s family law commissioners before they became members of the judiciary.
Why should I hire you?
Andy’s peers have allowed him to receive the Peer Review of “AV Preeminent” by Martindale-Hubbell. Talk to any established attorney and he or she will tell you that the AV Preeminent rating is reserved for the very best.
In addition, there are few attorneys who are as reliable and dependable or who work as hard as Andy Cook. He does what he says. He keeps you informed. He has a great memory and an ability to pay attention to detail. He is a great writer and a poised, strong advocate in court.
Do I have to go to court?
There are other situations where only the lawyers are required to attend and you attend only if you wish.
Are there any other attorneys in your office?
How does the Family Court decide custody and visitation?
Child custody and visitation is an emotional issue and can have a dramatic impact on the future relationship between a parent and child. The amount of time each parent spends with a child also affects child support. Because of the importance of child custody and visitation, be sure to consult Family Law attorney Andy Cook well in advance of your court hearing. Remember, Andy Cook is certified as a Family Law specialist by the State Bar of California, Board of Legal Specialization.
What if one of us wants to move somewhere else with our child or children?
To actually move somewhere else, once the divorce or paternity case is underway, look at the history of the case. If one of the parents has significantly more parenting time than the other parent and if the court has already made what seems like a final decision on custody and visitation, the parent with the child (or children) for the majority of the time has a presumptive right to move away with the child or children. But, the parent who opposes the move can still stop the move if it can be proven that the move is in bad faith or will be detrimental to the minor child. (Most court orders and judgments in San Diego County will provide for written notice of, say, 45 days before a parent may relocate; this allows the other side to file papers with the court to stop the move.)
That’s a lot to digest, so let’s look at it another way. If the parents have just split up, or if they have 50/50 custody (or close to it), neither parent is supposed to have a leg up on the other. The person who opposes the move starts the legal battle with no greater burden of proof than the person who wants the court to say yes. The same answer applies if the parents are still living together even though one person has already filed papers in court. Either way, the court has to look at simply what is in the best interests of the child.
Some parents will decide not to risk uncertainty and to compromise. Maybe the person who wants to move away with the kids will get to do it, but the parent who stays behind will get the kids all summer and every holiday. Sometimes, the person who moves away will agree to pay for the other parent’s travel costs.
Move always are serious legal issues, especially if the proposed move is to the other side of the country or even outside of the United States. Major changes in custodial time are at issue as are changes in child support. This is an anxiety producing experience and it is dangerous to go at it alone or to wait until the last minute to hire an attorney because of all of the deadlines involved in move-away cases. Be sure to consult attorney Andy Cook well in advance of any court hearing that will decide a move-away. Remember, Andy Cook is certified as a Family Law specialist by the State Bar of California, Board of Legal Specialization.
How does the Family Court decide child support?
Does the judge have to go with the Child Support Guideline Result?
How long does Child Support Last?
How does the Family Court decide spousal support (i.e., alimony)?
At trial, by contrast, the Court is not allowed to use the computer formula. Instead, the court has to consider about 14 different factors including income; age and health; assets and debts; the marital standard of living; any time off from work devoted to domestic duties; any history of domestic violence; and the need for spousal support (i.e., alimony) and the other party’s ability to pay. Once the court considers all of these factors, it has broad discretion with respect to the duration and the amount of spousal support. If you are dissatisfied with what the court decides, it is very hard to get a reversal on appeal.
So, to sum up, in a spousal support (i.e., alimony) case, the issues include how much spousal support (i.e., alimony) should be and how long the payer should have to pay it. Remember, there are lots of cases where no spousal support (i.e., alimony) is awarded. Because of the wide possibilities in a spousal support (i.e., alimony) case, you need someone like Andy Cook, a San Diego County Family Law attorney certified as a Family Law specialist by the State Bar of California, Board of Legal Specialization.
Is It True that Spousal Support Lasts Half the Length of the Marriage?
Section 4336, in turn, states that there is a presumption that a marriage of 10 years or more, from the date of marriage to the date of separation, is a marriage of long duration.
Of course, these two provisions — sections 4320 and 4336– have exceptions, but, in general, if you’re trying to figure out how long spousal support will last, start out by figuring out how long the marriage has been. If it is less than ten years, there is a good chance –though nothing is guaranteed– that spousal support, if it is awarded, will be for half the length of the marriage. If the marriage was over ten years, it is not possible to predict exactly how long spousal support will last.
Remember, spousal support can change in amount a number of times from the beginning to the end. And in many cases, there is no spousal support at all.
How is support affected by bankruptcy?
My X makes more than me. Does that mean I get alimony?
Here are some sure ways not to get — or continue to get — alimony/spousal support: getting remarried; getting convicted for attempting to murder your spouse; getting convicted for committing a violent sexual felony against your spouse within five years before the divorce petition is filed; getting convicted of any act of domestic violence against your spouse within five years before the divorce petition is filed; and having “documented” evidence presented against you of domestic violence that you committed at any time against your spouse, even if no conviction or guilty plea resulted.
These deal breakers are listed in descending order of importance. In other words, marriage is a good thing, and getting remarried is fine, but if you do it, any existing order for spousal support will end and it will be impossible to get an initial order for spousal support from your former spouse, assuming the court reserved jurisdiction over spousal support past the date of the divorce. (That’s a lot to digest, so let’s say it this way: you don’t have to worry about remarriage before the divorce is granted, because that would involve being married to two people at the same time, but when the judge grants the divorce, even if the judgment does not allow either side to get spousal support, the judge might reserve for herself or himself the right to later award spousal support if the circumstances are right. But if in the interim, you remarry, there’s no way that you can get spousal support later on.)
For obvious policy reasons, attempted murder is an absolute bar against spousal support as well. Surprisingly, a violent sexual felony makes spousal support impossible as well, but only if less than five years separates the end of the punishment (i.e., prison, parole, etc.) and the filing of the divorce petition.
The five year rule also applies to any other type of domestic violence where there is a conviction or guilty plea, but in this case, there is simply a presumption against a spousal support award. With the right type of evidence, the presumption can be overcome and spousal support may be awarded.
Finally, domestic violence committed at any time has to be considered by the court, even if there was no conviction or guilty plea involved. So, evidence that one spouse pushed the other is relevant; and so is a conviction 25 years ago for harassing the spouse. But this type of domestic violence — where there may or may not have been a conviction — is simply one of about 13 factors the court must consider in any divorce case.
Besides these concerns, California law says that there is a presumption of a decreased need for spousal support if you are cohabiting with a nonmarital partner. And in some cases, the court can deny spousal support even if there is an income disparity because the lower earning spouse has the proven ability to earn close to what the high earner is earning.
Some of these principles apply to what’s called “permanent” spousal support, and others apply to “temporary” spousal support, and yet others apply to both.
What stops a person from quiting employment to avoid paying support?
But this is theoretical. Even for the most bitter spouse or parent, it is better to make money and pay support than to not make any money and pay no support. In addition, while it is not a crime to quit a job, there are criminal penalties in California for not paying court ordered child support or spousal support. Specifically, the defaulting party faces five days in jail for each month that the full amount of support is not paid. In addition, when support is not paid, there is ten percent per annum interest. Other possible penalties include loss of a driver’s license, a lien on property, loss of a professional license, and loss of a passport.
What about quitting a job and going back to court and asking the judge to reduce or eliminate support because the payor’s income has been reduced? Surprisingly, there are a number possibilities. In one California case, from 2008, a 42-year old woman retired early from her job in law enforcement. The court held that support could not be imposed against her unless there was evidence that the woman could get her old job back for the asking, or that, based on her experience, there were other jobs that paid what she was getting in law enforcement. But the 2008 case was different because at the time of retirement, support between the two parents was already zero because of an earlier agreement between them. But the lesson learned is that the court was not about to impose a support obligation on this woman just because she used to have a job and then, basically, quit (or retired).
But a 2014 case produced a more harsh result. There, a man diverted business to his father, who did not work at his son’s company. When the son’s bosses found out, they said they would let him keep his job but only if he admitted to his wrongdoing, and reimbursed the employer for the lost income. The son, i.e., the husband, refused to do this, and he was fired. By the way, at the time of his firing, the husband was under court order to pay both child and spousal support.
The court was not impressed. The court refused to adjust support, finding that the husband had it within his means to keep his job and had deliberately divested his earning ability.
There are cases that come in the middle. If a person is laid off or exercises poor judgment or does any of a number of things that cause people to get fired (like poor performance, insubordination, a failure to get along with others, etc.), support could be reduced to zero, with orders from the court that the discharged worker make “job contacts”, i.e., that is, contact a number of employers each week until a new job is obtained. A review hearing might be set, so that the judge can see if the fired worker has followed through on the job contact orders. If that person has not, support could be reinstated, especially if there is evidence that there are job openings in the geographic area that match the fired person’s experience.
If a person loses her or his job, for whatever reason, it is important to file a motion with the court as soon as possible. This is because a new order for support, based on either no income or income only from unemployment compensation, can only take effect on the date that the motion for a reduction in support is filed with the court.
This is a complicated area of the law, with the results often turning on whether “separation” from employment occurred while there was already a motion to change or establish support on calendar, and a number of other issues. To make things even more complicated, the answer to this “frequently asked question” focuses on people who are wage earner or salaried individuals. If someone is self-employed, claims of changed compensation are often more difficult to resolve and may require experts to analyze tax returns and other documents, including loan applications.
If support is substantial, you will have trouble handling any future court case involving modification of support without the assistance of an attorney who is certified as a family law specialist by the State Bar of California, Board of Legal Specialization. So regardless of whether you are the payor, or the payee, if you are faced with facts similar to those discussed in the answer to this “frequently asked question”, call San Diego divorce attorney Andy Cook as soon as possible at 619-515-9900.
How is property divided?
I heard that California is a community property state. What does that mean?
Should I get a legal separation instead of a divorce? What does that mean?
The difference is that in a legal separation case, the parties remain married after the case is over. In a divorce case, the parties become single persons again once the case is over.
Some people prefer to pursue a legal separation case for religious reasons or reasons having to do with immigration or insurance issues. Also, if California’s six month residency requirement has not been met by either party, one or both spouses may choose to file for legal separation.
“Legal separation” is not the same as the “date of separation”. The date of separation is the date when the law no longer considers future marital property acquisitions and future marital debt to be community property. Because of legislation enacted in the summer of 2016, the date of separation is now defined as “the date that a complete and final break in the marital relationship has occurred”. To figure out this issue, a judge has to look at the date one “spouse has expressed to the other spouse his or her intent to end the marriage” and whether the “conduct of the (first) spouse is consistent with his or her intent to end the marriage”.
This new rule comes from newly enacted Family Code section 70. Under the previous rule, parties could not be considered “separated” unless they lived separate and apart. So the requirement that the parties not live together in order to be considered separated is no longer the law in California.
Is it possible to get the other side to pay for my attorney fees?
I already have a judgment. Does Any of this information apply to me?
Also, if certain property issues have not been resolved, it may be necessary to get a new court order.
Do You Represent Same-Sex Couples?
What about Appealing What the Judge Decided?
If you do appeal, three “justices” will review the court record before deciding what to do. Although this may be an oversimplification, the justices are usually trying to figure out whether the judge in your case made a mistake, and, if so, whether the mistake had any impact on the decision that the judge made.
The justices work in a separate courthouse called the “Court of Appeal”. The justices are appointed by the governor of California and do not include the judge or commissioner who ruled on your case.
The decisions of every decision made in appeals cases for California courts may be found online.
The Court of Appeal that is located in San Diego is called “the Fourth District, Division One”.
The filing fee is $775.00 for family law appeals in California.
Individuals not happy with the result in the Court of Appeal may ask the California Supreme Court to hear their cases, but the Supreme Court is not required to hear every case presented to it. Accordingly, the overwhelming number of family law cases that are appealed in California end at the Court of Appeal.
Still, there are exceptions, and there are a number of high profile cases in family law that have gone to the Supreme Court, which consists of seven justices appointed by the governor of California and which usually hears matters in a courthouse in San Francisco. Indeed, some cases with family law aspects have made it all the way to the Supreme Court of the United States!
Please call Law Offices of Andy Cook for free consultation: (619) 515-9900.