FAQ : Frequently Asked Questions
- What type of cases do you handle?
- This is an amicable divorce. Can you represent both of us?
- Where is my case heard?
- Where do you appear in court?
- What does it mean to “serve” someone with divorce papers?
- I was just served with divorce papers. What do I do?
- Is it Possible to Stop the Divorce?
- Do both sides have to sign the papers for the divorce to go through?
- What about dating or remarriage?
- How soon can I see you?
- Do you handle military divorces?
- What about mediation? Do you handle that?
- Who else do you represent or have you represented?
- You are a Certified Family Law Specialist. What does that mean?
- What Should I Look for in a Divorce Lawyer?
- Do you Know the Family Law Judges?
- Why should I hire you?
- Do I have to go to court?
- Are there any other attorneys in your office?
- How does the Family Court decide custody and visitation?
- What if one of us wants to move somewhere else with our child or children?
- 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)?
- Is It True that Spousal Support Lasts Half the Length of the Marriage?
- How is support affected by bankruptcy?
- 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?
- 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?
- What about Appealing What the Judge Decided?
FAQ 1. What type of cases do you handle?
Andy Cook handles family law cases, which are cases that involve child custody, child support, dissolution of domestic partnerships, divorce, domestic violence, legal separation, nullity of marriage, paternity, property division, spousal support (i.e., alimony), and visitation.
FAQ 2. This is an amicable divorce. Can you represent both of us?
In most cases, no. Rule 3-310 of the California Rules of Professional Conduct states that a lawyer “shall not, without the informed written consent of each client . . . [a]ccept or continue representation of more than one client in a matter in which the interests of the clients actually conflict”. If this regulation is violated, the attorney is subject to automatic disqualification.
FAQ 3. Where is my case heard?
For people who live in Carmel Valley, Del Mar Heights and points south down to the National City border, the courthouse is in downtown San Diego at 1501 Sixth Ave., a half mile from the Law Offices of Andy Cook. This is also the courthouse for the City of Poway. From Solana Beach, Del Mar 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, including Coronado, the filing location is usually Chula Vista.
FAQ 4. Where do you appear in court?
Andy Cook handles Family Law cases throughout San Diego County (downtown, North County/Vista, East County/El Cajon and South County/Chula Vista). The cases downtown include the Family Court Building on Sixth Ave., the Madge Bradley Building on Fourth Ave., and the Family Support Division on Broadway. Andy Cook has also handled Family Law cases in the following counties: Riverside (Hemet and the City of Riverside); San Bernardino (Rancho Cucamonga and the City of San Bernardino); Imperial (El Centro); Los Angeles (Burbank and Long Beach); and Orange (Santa Ana).
FAQ 5. What does it mean to “serve” someone with divorce papers?
This means handing some blank forms, along with the divorce papers after they have been filed with the Court, to your spouse or, if unmarried, to the other parent. Anybody who is 18 or older can serve the papers, unless he or she is the husband or wife (or father or mother). In other words, you may not serve papers in your own divorce or paternity case.
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.
FAQ 6. I was just served with divorce papers. What do I do?
You need to figure out the deadline for responding. There are different deadlines in a divorce case. For example, if you have been served with a Request for Order, your papers must be filed and served nine “court days” before the hearing, unless the Court has granted something called “an order shortening time”. On the other hand, your response to the Petition is due 30 calendar days (not court days) from the date you were served.
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.
FAQ 7. Is it Possible to Stop the Divorce?
A divorce may be stopped if the parties reconcile or if neither of them has lived in California long enough. A divorce may be stopped if the parties have another divorce case in a different county or state (or even country) and the “other divorce” case is started or finished before the one in the local county here in California.
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.
FAQ 8. Do both sides have to sign the papers for the divorce to go through?
No. A person does not need permission from the other side for a divorce to be granted.
FAQ 9. What about dating or remarriage?
There are no longer any valid rules under California law prohibiting competent, consenting adults from engaging in a dating relationship just because a divorce is not yet granted.
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.
FAQ 10. How soon can I see you?
Usually, you can be fit in the same or next business day. Sometimes it is not even necessary to come into the office.
FAQ 11. Do you handle military divorces?
Yes. The Law Offices of Andy Cook represents men and women who are serving our country as well as spouses of service members (“non-member spouses”) as well. We have represented officers as well as enlisted personnel. We are familiar with military pensions, Thrift Savings Plans, Survivor Benefit Annuities, variances in BAH pay and other issues unique to the United States military.
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!
FAQ 12. What about mediation? Do you handle that?
Yes. Andy Cook has been hired on a number of times not to represent one side or the other but to serve as a lawyer who tries to get the two sides to come to an agreement by predicting what a judge might do if the case went to trial or simply to suggest compromises that the parties and their own attorneys may not have addressed.
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.
FAQ 13. Who else do you represent or have you represented?
Physicians, dentists, nurses, attorneys, pilots, software engineers, business owners, corrections officers, border patrol agents, police officers, teachers, college professors, casino workers, and others with all types of jobs.
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.
FAQ 14. You are a Certified Family Law Specialist. What does that mean?
A certified Family Law specialist in California means someone who has been specially designated as a specialist in Family Law by the State Bar of California, Board of Legal Specialization. The vast majority of attorneys who handle Family Law cases in California or just San Diego County are not certified Family Law specialists. San Diego Family Law attorney Andy Cook is certified as a Family Law specialist by the State Bar of California, Board of Legal Specialization. In order to be a specialist in Family Law in California, a lawyer must pass not only the Bar Examination but a special test in Family Law given just once every two years. Also, he or she must receive recommendations from judges and lawyers and have sufficient experience in trials and other complicated Family Law matters.
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.
Also, Andy Cook has been certified as a family law specialist for over 15 years.
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.
FAQ 15. What Should I Look for in a Divorce Lawyer?
When you call, do you get to speak to the attorney directly or is it only an assistant? Maybe the attorney isn’t there, but is your call returned promptly? If you’re thinking about hiring an attorney and the attorney cannot remember to return you call, what does that say about the attorney’s attentiveness after you have put down a deposit?
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.
FAQ 16. Do you Know the Family Law Judges?
Yes, most of them. But more importantly, they know Certified Family Law specialist Andy Cook. His reputation is for being extremely hard working, always prepared, and very knowledgeable.
FAQ 17. Why should I hire you?
As stated above, Andy Cook is one of the few California lawyers certified as a Family Law specialist by the State Bar of California, Board of Legal Specialization. He is also highly respected by his peers throughout the legal community. For example, in 2013, in an election involving ten lawyers, Andy was one of just four persons elected to the Board of Directors of the San Diego County Bar Association with an electorate made up of over 7,000 attorneys. He is presently the only Family Law Specialist (as rated by the State Bar of California, Board of Legal Specialization) on the 18-person Board.
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.
FAQ 18. Do I have to go to court?
No, not in every case. If the parties settle the case out of court by filling out the proper paperwork early enough in the case, there is no need for a court appearance. Also, if one side refuses to participate in the process, the other side can fill out court papers and get a default judgment without having to go to court.
There are other situations where only the lawyers are required to attend and you attend only if you wish.
FAQ 19. Are there any other attorneys in your office?
Yes. Attorney and native San Diegan Vicky Mejias is a full-time associate. Vicky Mejias started her career handling civil litigation matters before making the switch to handling Family Law matters exclusively.
FAQ 20. How does the Family Court decide custody and visitation?
The Family Court generally has to make a determination about what is in the best interests of your child or children. This involves looking at the age of a child and what schedule he or she was following before the case went to court; any history of illegal drug use or alcohol abuse; any history of domestic violence; and the general goal that children have frequent and continuing contact with both parents. There are other factors the court looks at in certain cases. For example, a child 14 years or older is now allowed to address the court regarding his or her wishes with respect to custody and visitation, in most cases.
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.
FAQ 21. What if one of us wants to move somewhere else with our child or children?
Once a divorce or paternity case has been filed and served, neither party is allowed to take the child or children out of California unless the other parent approves in writing or the judge gives special permission. So even leaving the state just temporarily with a child is not automatic, unless the courts have not become involved yet, in which case there are no travel restrictions in the United States as to parents and 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.
FAQ 22. How does the Family Court decide child support?
State law requires California to use a computer formula, called “the Guidelines”, to determine child support in virtually all cases. The Guidelines take into account your income or ability to earn an income; the other party’s income or ability to earn an income; the number of children the two of you had together; and the amount of time that you spend with your child or children. Sometimes it is difficult to determine what a person, especially a self-employed person, earns. Other times there may be a dispute over whether a person who is not working really could work, and if so, how much he or she could earn. That is why you need the services of a Family Law attorney like Andy Cook, who is certified as a Family Law specialist by the State Bar of California, Board of Legal Specialization.
FAQ 23. Does the judge have to go with the Child Support Guideline Result?
Not always. If the parties agree on a higher or lower figure, the judge can make that figure the court order as opposed to the result generated by the guideline formula. Also, in rare cases involving a person with an “extraordinarily high income”, the judge is allowed to decide that the guideline formula would yield an amount of child support that is in excess of the child’s needs. There are other, rarer exceptions.
FAQ 24. How long does Child Support Last?
Usually until the child turns 18 or graduates from high school, whichever is later, but no later than 19, unless one of two exceptions applies. The first exception is if the parties agree in a written document filed with the court that one of the parents will keep on paying for child support, usually for a period of time, such as college. The other is based on Family Code section 3910, which requires child support for “a child of whatever age who is incapacitated from earning a living and without sufficient means”;.
FAQ 25. How does the Family Court decide spousal support (i.e., alimony)?
Traditionally, most San Diego Family Law judges have used the same computer formula to determine temporary spousal support (i.e., alimony) as they use to determine child support. Temporary spousal support (i.e., alimony) is support that is designed to help the person receiving the support until there is a trial where there is more time to listen to each side explain to the Court what spousal support (i.e., alimony) should be.
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.
FAQ 26. Is It True that Spousal Support Lasts Half the Length of the Marriage?
That depends. According to Family Code section 4320, there are about 14 factors a court is supposed to look at in setting spousal support. Most of those factors have to do with the amount of spousal support, not the duration. But one of the factors, subdivision (l), does address length. According to this subdivision, the Court is supposed to heed “[t]he goal that the supported party shall be self-supporting within a reasonable period of time”. The language goes on to state, “[e]xcept in the case of a marriage of long duration as described in Section 4336, a ‘reasonable period of time’ for purposes of this section generally shall be one-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.
FAQ 27. How is support affected by bankruptcy?
Family law support obligations are not dischargeable in bankruptcy. (In addition, since 2005, debts incurred “to a spouse, former spouse, or child of the debtor . . .in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record” are not dischargeable in bankruptcy.)
FAQ 28. How is property divided?
In California, a family court has to divide all community property assets and all community property debt equally. Community property is all property, wherever located, acquired by a married person while domiciled in (which usually means living in) California, with certain exceptions. Because the law of community property affects what happens to your house, your retirement, your cars, your credit card debts, and your bank accounts (regardless of whether these items are in your name or the other person’s name or both parties’ names), you should consult with 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.
FAQ 29. I heard that California is a community property state. What does that mean?
Yes, California is a community property state. The law says that all property acquired by a married person while (basically) “living” in California is community property, regardless of whether the property is in California or not. The significance is that at the time of a trial for divorce, the judge must divide community property evenly.
FAQ 30. Should I get a legal separation instead of a divorce? What does that mean?
People may opt for a judgment of legal separation rather than a judgment of divorce. The rules regarding child custody and visitation, child support, spousal support, domestic violence, and attorney fees are pretty much the same, and so, too, are most rules regarding property division.
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.
FAQ 31. Is it possible to get the other side to pay for my attorney fees?
Yes. If the other side makes considerably more money than you do, the Court may award attorney fees so as to give both sides a fair playing field, i.e., equal access to attorneys. Also, if one side has behaved unreasonably, the Court may use the unreasonable behavior as a separate basis for an award of attorney fees. There are other statutes or rules that allow a Family Law court to award attorney fees.
FAQ 32. I already have a judgment. Does Any of this Information Apply to me?
Possibly. Orders for child custody and visitation, along with child support, may be modified (“changed”), based on a showing of a material change in circumstances since the last court order. The same applies to many, though not all, orders for spousal support.
Also, if certain property issues have not been resolved, it may be necessary to get a new court order.
FAQ 33. What about Appealing What the Judge Decided?
Many Family Law decisions can be appealed, but you only have a certain amount of time to do it! You need to speak to an attorney fast to figure out how many days you have from the time the court ruled against you to appeal. You also have to figure out when the “clock starts ticking” regarding the number of days that you have. Of course, you also have to figure out whether you stand a chance of winning, and, if so, how much it will cost.
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.