Frequently Asked Questions

Divorce law can be a complex topic for those unfamiliar with the field. At the law firm of Fischer & Van Thiel, LLP, we have taken it upon ourselves to ensure that you are familiar with each issue that arises in a divorce.

Spousal Support / Alimony

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My husband cheated. Will I get extra spousal support?

Craig’s Answer:

In many California marriages there are unfortunately issues of discovered adultery by one party. If you are involved in a situation regarding a cheating spouse, you should educate yourself on your options in this incredibly difficult time in order to protect your rights. California abides by statues of no-fault divorce and allows a divorce to occur if a couple meets one of two standards: a spouse suffers from incurable insanity, or a couple is experiencing irreconcilable differences – which is a fundamental disagreement that can’t be resolved. In opposition of fault-based states, California only requires that you, your spouse, or both of you believe your marriage cannot be saved. Seeing has California has not made the act of adultery criminal, adultery will not be considered or admissible as a deciding factor for whether or not a divorce will be granted. California has also established rights to Alimony, or Spousal Support laws which if applicable require parties to financially take care of each other during and after divorce proceedings. This is to ensure the less financially fortunate party is taken care of during the divorce process and can maintain an established standard of living after finalization. Although the courts consider a variety of factors when establishing whether spousal support will be granted or not, adultery (and any form of marital misconduct) is not one of the weighing factors. Spousal support is meant to act as an issuing of support not a form of punishment against a party. The  exception to this rule occurs if there is evidence of violent behavior by one of the parties.

If you have any questions regarding your divorce matter, or wish to clarify any factors regarding your case matter, contact a family law attorney’s at Fischer & Van Thiel LLP. We specializes in the intricacies of the laws and can help you maintain your rights.

What is the date of separation and why is it important?

Craig’s Answer:

The date of separation has significant legal consequences in divorce cases because California courts use this date to determine the respective spouses’ property interests. California is a community property state, which generally means that the property that the couple acquires during the marriage is considered “community property” and debt acquired during the marriage is “community debt,” belonging equally to both parties. On the other hand, anything acquired after the date of separation (including all earnings and contributions to retirement or pension accounts) is the separate property of the earning spouse. Likewise, debts incurred after the date of separation are the separate debt of the spouse that acquires them. Spousal support issues, such as amount, duration, and terminability, are also affected by the date of separation. The date on which the spouses separated establishes the parties’ duration of marriage, which is a key factor in determining long-term spousal support. (There are certain spousal support rules in California for marriages that last ten years or more.) The date of separation occurs when:

  • there is a physical separation of the spouses (such as one spouse moves out of the family home), and
  • either party subjectively intends to terminate the marriage and his or her actions demonstrate this intent. (For example, one spouse sends a text message to the other spouse that he or she is filing for divorce).

Determining whether or not accumulated assets and debts are part of the marital estate can be particularly difficult to assess and, in many cases, divorcing parties claim different dates of separation. If you are thinking about getting a divorce, you should be sure to seek legal consultation if you have any questions about how the date of separation is established or how to proceed in your particular situation.