What happens During a Divorce

During a divorce, couples should try to make a custody agreement through mutual consent or mediation. It will be hard on everyone, especially the children, if an agreement cannot be met between the two parties because the courts will be forced to make the decision for them. When the court is forced to make the decision regarding who should get custody of a child, they will consider the child’s best interests.

When determining the best interests of the child, the court looks at a variety of criteria, including:

  • Which parent has been the child’s primary caregiver?
  • What is the health of both parents (mental and physical)?
  • What is the financial situation of each parent?
  • What are the wishes of the child and the parents?
  • Where does each parent live? Would the child have to move?
  • What is the child’s relationship to his or her parents? Siblings? Extended family?

Types of Custody

When custody of a child goes to one parent this is called sole or primary custody. Joint custody, shared custody and split custody all refer to an agreement where both parents have custody of the child. Joint custody can be legal (decision making power over major aspects of the child’s life), physical or both. If parents have joint legal custody, both parties have decision making authority and must agree on decisions about school, religion, medical care, extra-curricular activities, etc. Often, this creates issues for exes because who have a difficult time cooperating with each other. Physical custody can be split equally, or the child may spend more time with one parent and less with the other. The statutory requirement regarding joint legal and physical custody varies depending on jurisdiction.

Parenting agreements include decisions regarding the following:

  • Legal custody
  • Physical custody
  • Education
  • College expenses
  • Health-care
  • Child-care
  • Extracurricular activities
  • Visitation schedule with each parent, including holidays
  • Transportation arrangements
  • Child support payment and payment schedule
  • Alternative dispute resolution (what law would apply if the case of a disagreement or agreement to complete mediation if a dispute arises)

Temporary or Permanent Parenting Plans

This depends on whether the parenting agreement has been filed with the court or if it has been finalized and implemented in the divorce. Temporary plans have been filed with the court and is enforceable regarding child custody and visitation until the plan has been finalized. it is important to file a parenting plan as soon as possible because there can be a time delay between the filing of a temporary order and the final court decree.

Court Mandated Parenting Plans

If the parents cannot agree on a parenting plan, the court may be forced to decide what is best for the child. The court will take each parent’s plan into consideration and create a to which each parent must agree in order for it to be finalized in the divorce decree.

Reasons for the Modification of a Parenting Plan

A change in circumstances after a divorce, commonly the relocation of one parent or a change in financial circumstances, can cause a parenting plan to be modified. The parties must make a motion to the court for a modification that must be confirmed by the court based on the best interests of the child. The court will not modify a parenting plan simply because one of the parents has violated the plan. Commonly, the court will readily modify a plan if there is evidence of abuse (physical/emotional), an inability of the parents to cooperate withe each other, child endangerment, neglect, or a change in a parent’s mental/physical/financial circumstance.

Agreement – Parents may agree between one another (assuming no state agency is involved protecting the child’s welfare) as to a parenting plan; a schedule of which parent will be responsible for the child and when.

Court Ordered – If parents disagree as to a parenting plan, one may file an application for an order from a judge (called an Order to Show Cause). In California, such an application requires that the parties attend mediation at Family Court Services. No lawyers are involved in mediation. The mediator explores areas of agreement and disagreement between the parties, and encourages cooperation. If an agreement is reached, the mediator may write down the agreement so that a judge may sign it and incorporate it as his/her Order. If the parties do not agree to a parenting plan, the mediator may investigate the case further and then suggest a parenting plan in a recommendation to the court.

Documents You Should Prepare

As you get ready for your first meeting with your family law attorney, you should prepare certain documents and information to bring with you. The information you provide will help us assess your situation and develop a plan that will be the best fit for your objectives. This list is a guide to help you get started. Not all items listed may be applicable to your situation, and we may ask you for additional information and/or documents not on this list as well.

Financial Information (including account names, numbers, balances and current statements)

Individual income tax returns for the past three to five years (state and federal)

Business income tax returns for the past three to five years (state and federal)

Recent income stub

Bank statements

Statements from trusts, stocks, bonds or US Treasury notes

List of safety deposit box contents

Investment accounts (annuities, mutual funds)

Retirement Savings Information (including balances, beneficiaries, outstanding loans and current statements)




Life insurance policies (including cash value)

Social Security statement

Pension statement

Property Information (including property description, address, ownership interest, market value, outstanding mortgage and loan balances, source of mortgage and loan payments and most recent tax assessment)

Primary residence

Rental properties (including any rental income)

Vacation homes

Business property

Personal property of value (antiques, collectables, automobiles, jewelry, art, computers, electronics, clothing, furs, etc.)

Inheritance (current or anticipated)

Interests in trust (current or future)

List of property owned by each spouse prior to marriage

Automobile(s), boat(s) or other recreational vehicle(s)

Bills and Outstanding Debt (including balances, statements, source of payments/funds)

Credit card statements

Loan documents

Utility bill

Other bills (school tuition, medical bills, etc.)

Monthly budget worksheet

Legal Agreements


Living wills

Powers of attorney

Durable powers of attorney

Advance directives (also termed power of attorney for healthcare, healthcare proxy)

Prenuptial agreements (also termed premarital agreement, antenuptial agreement)

Divorce decrees or child support from a previous marriage

Non-financial Contributions

Contributions of a homemaker

Contributions made by one spouse to further the educational and/or career goals of the other spouse

Finally, you will also want to start thinking about other issues that may or may not be applicable to your situation. These are matters about which you should speak with your attorney and may include:

Child support

Child custody (legal, physical)


Residence in the marital homestead

Beneficiaries of insurance policies and other benefits

Spousal support / alimony

Domestic violence issues (including child abuse)

Post-divorce non-financial support

Attorney’s fees and expenses

Calculate Spousal Support

During a Divorce, the California Courts will use the “guideline calculation formula” (that stems from the legislature) to set Spousal Support. When a divorce fails to settle through negotiation or mediation, the Divorce will then go to Trial. At Trial California Judges and Commissioners are supposed to consider the following factors:

Guidelines to Calculating Spousal Support

  • The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
    1. The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.
    2. The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
  • (b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.
  • (c) The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.
  • (d) The needs of each party based on the standard of living established during the marriage.
  • (e) The obligations and assets, including the separate property, of each party.
  • (f) The duration of the marriage.
  • (g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
  • (h) The age and health of the parties.
  • (i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.
  • (j) The immediate and specific tax consequences to each party.
  • (k) The balance of the hardships to each party.
  • (l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except 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. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.
  • (m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4325.
  • (n) Any other factors the court determines are just and equitable.

San Diego Child Support

In California, Courts try to determine the income of parents available for support.  Income may be considered from the following sources:

Child Support Factors

  • Wages from a job
  • Tips
  • Commissions
  • Bonuses
  • Self-employment earnings
  • Unemployment benefits
  • Disability and workers’ compensation
  • Interest
  • Dividends
  • Rental income
  • Social Security or pensions
  • Any payments or credits due or becoming due, regardless of the source, including lottery and prize winnings

Appealing the Orders

What Can You Do About it?

So you lost a hearing in family law and the unthinkable has been ordered…whatever that is.

You may ask the court to reconsider the issue based on new evidence or law. This is called a Motion for Reconsideration and it must be filed within ten days of receiving the order. Note that this does not apply to family code 2030 fee orders. Also, the court may reconsider its orders at any time on its own. Reconsideration motions to toll the time during which you may appeal.

You may also ask the court to set aside its orders. This is done pursuant to California Code of Civil Procedure section 473. The time limit is six months. The motion must allege mistake facts or law.

You may also ask for set aside under the family code at 2120-2129. Such a set aside is meant to facilitate disclosures. Similarly the time frame is six months. Such motions cover marriage and separation but may not be brought regarding the issue of paternity. Such motions stem from actual fraud or perjury within a one year time limit – two years for duress. A mistake re a stipulated judgment has a one year time limit – whereas mental incapacity carries a two year limit.

You may also consider a motion to vacate or for new trial under California Code of Civil Procedure 656-662.5 and 663.2. This applies to judgments and appealable orders. Such motion is based on accident, surprise, new evidence, excessive or inadequate damages, insufficiency of evidence, or error in law. These motions must be brought before entry of judgment and within 15 days of notice.

You may want to consider filing a writ or appeal with the court of appeals. Such appeals must be filed within 60 days. Writs must be filed within a reasonable time limit. Appeals are confined to the record and pleadings. Writs allow more broad discussion.

All of the above-discussed motions etc. are technical in nature and you would be well-served to be represented by a licensed attorney.