FAQs

Frequently Asked Questions

Over our many years of practicing family law, we here are Fischer & Van Thiel have been asked a great number of questions, many of which arise more often than others. In order to provide you with quick answers to your most pressing concerns, we have provided you with this section of frequently asked questions. Here, you will find a listing of some of the questions we encounter most frequently, as well as their answers.

If you do not see your specific inquiry posted below, please check back at a later date. We will be updating this area frequently. To get immediate answers, contact the Oceanside divorce attorneys of Fischer & Van Thiel today at 760-904-3094.

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Family Law

When determining which party gets custody of the child, the court must act “in the best interest of the child(ren).” In most instances, this means that the parents will have joint custody of the youth. In these cases, the parents share time spent with the children and make joint decisions about the children’s education and healthcare. Duties and holidays are shared, and a preset schedule is typically created.

If one parent is decided to be unfit for raising kids, however, then sole custody will be awarded to the other patent. The custody determination will remain in this state until the non-custodial parent can prove that he or she is able to provide a good environment for the children.

If you would like to learn more about determination of child custody, contact the Oceanside divorce attorneys of Fischer & Van Thiel today at 760-722-7646.

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Divorce cases are all unique, and depending on the complexity of the situation and the cooperativeness of the involved parties, they will take different amounts of time to resolve. With the addition of child custody, domestic violence, and property arguments, the situation will become more and more complicated. In general, however, most cases can be finalized within a period of 6 to 12 months.

If you would like to speak with an attorney about your specific situation, contact the Oceanside divorce lawyers of Fischer & Van Thiel today at 760-722-7646.

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Alimony, otherwise known as spousal support, is a monetary payment that one former spouse must make to the other one. Typically, alimony is awarded in cases where one spouse is reliant on the other for financial support. Alimony allows this individual to maintain his or her standard of living and reduces the financial stress he or she would feel otherwise. Alimony may be temporary or permanent, depending on the situation.

If you would like to learn more about alimony, contact the Oceanside divorce lawyers of Fischer & Van Thiel today at 760-722-7646.

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Question Detail

I have been married to my husband, who is in a California prison, for 6 years. I want to divorce him, but will this be like a normal divorce? Will an attorney help?

Answer

Yes, you can get divorced from your husband who is in a California prison. The procedure will not be any different but you will still have to have your husband served with the papers in prison. It would be beneficial to speak to an experienced family law attorney who can guide you through the procedure and the difficulties that you may encounter if your spouse contests the divorce.


Question Detail

My son was in his grandmother’s custody when he was about a year old. His mother had left town for nine months and I had him every weekend for visitation. The grandmother had to go into a mental institution at one point and my son was taken from her and almost put into foster care because she lied and said that me, the father was in Arizona. Does my son’s mother have the right to leave my son with that same grandparent now?

Answer

If there is an order granting your son’s mother custody, you can a file an order to show cause (OSC) to modify custody and/or visitation, asking the court for a different custody or visitation arrangement. You can also ask the court to issue an order preventing your son’s mother from leaving your son with his grandmother. An OSC can also be filed if there is an order granting your son’s grandmother custody. Again, you would be asking the court to modify the custody arrangement.


Question Detail

I am marrying my boyfriend in March, and he has two children, who I adore. Will I have any rights to the kids as stepmom if my boyfriend and his ex share custody?

Answer

Being a stepparent does not confer any rights or impose any duties.  Any support a stepparent provides to a stepchild is purely voluntary and can cease at any time.  In some cases, a stepparent who treats a stepchild as a member of their family, places herself in loco parentis, which means “in the place of a parent.”  However, in order to establish a parental relationship, the stepparent must intend to take the place of the child’s natural parent in providing support, educating and instructing the child and caring for its general welfare.  The status of loco parentis for a stepparent terminates upon divorce.  However, if your fiancé and his ex have joint custody, loco parentis would probably not apply in your situation.  For more information, contact an experienced family law attorney.


When you file for divorce you can request child and spousal support. In determining spousal support,the court will consider various factors such as length of the marriage, income of the parties and standard of living established during the marriage. You may also file an ex parte motion to go to court immediately to try and get temporary support orders. However, some courts may not grant support on an emergency basis.

It is important to contact an experienced family law attorney that can provide insight into your individual options.


Yes, even if the other party is not going to contest it, you have to reveal your 401k during your California divorce. There are consequences if you choose not to disclose all of your assets and debts during your divorce. Such penalties include having your final judgment set aside and financial penalties.


There are many factors a court evaluates when determining whether a spousal support order should be issued. Family Code section 4320 explains all of the factors, which include: length of the marriage, income of the parties and standard of living established during the marriage.

If your ex quit his job, you can ask the court to “impute” income. A court imputes income when one party is unemployed or underemployed. If you want the court to impute the other party’s income to more than just minimum wage, a vocational examination will be ordered. The examination will look at factors such as the party’s age, marketable skills, employment history, and current availability of employment opportunities.


Question Detail

My husband and I were only married about 2 years, and we do not have kids. We have a joint checking account, and he has a separate retirement fund through work. We have a house together, and our cars are in our own names.

Answer

All of the forms required for a divorce proceeding can be found online and in a courthouse, including instructions on how to complete the forms. There are also family law facilitator offices that can provide legal assistance to you at no charge. Because of various procedural rules, having an experienced family law attorney would ensure a swift resolution of your divorce. Mistakes can significantly delay the process.


Question Detail

Is it easy to find a lawyer specializing in domestic violence? I need to get a lawyer who specializes in domestic violence. I need to make sure everything is taken care of since this is my first offense.

Answer

If you are being charged with a crime that relates to domestic violence, you would generally want to contact a criminal defense attorney.  If you are dealing with a restraining order that has been issued against you, a family law attorney would be able to provide assistance.  In finding a competent attorney to represent you in such matter, it is advisable to do research just as when finding someone for any type of service.  Most counties have a Lawyer Referral Service (LRS), which is sponsored by the local bar association.  When you call the LRS, an attorney will be referred to you.  Generally, contacting an attorney through the LRS will entitle you to a consultation of a certain length for free.


Question Detail

Under what circumstances would spousal support not be awarded in a divorce?

Answer

Pursuant to Family Code § 4300, an individual owes a duty to support his or her spouse.  In a judgment of dissolution of marriage or legal separation of the parties, the court may order a party to pay for the support of the other party an amount, for a period of time, that the court determines is just and reasonable, based on the standard of living established during the marriage (Family Code § 4330).

A premarital (or other) agreement cannot validly waive the mutual duty of support owed between spouses while they are married and living together.  However, when entered into voluntarily by parties who are each represented by independent counsel and aware of the effect of the agreement, a premarital waiver of post-dissolution spousal support does not offend contemporary public policy and is not per se unenforceable. (Family Code § 1612(c)).  If the spouses separate by agreement, neither owes the other a duty of support unless they otherwise agree (Family Code § 4302); and any right to support after dissolution exists, if at all, only under the terms of the judgment.  Thus, a voluntary, knowing and intelligent waiver of support in a marital settlement or premarital agreement will be enforced according to its terms.

In determining spousal support, the court will consider various factors.  It is important to contact an experienced family law attorney that can provide insight into consideration broader than statutory regulations and factors.


Question Detail

I have been fighting with my spouse a lot, and we are divorcing because of irreconcilable differences. I want custody of my kids, and I want to make sure that I do not give my wife an advantage to getting full custody of our children. Will I have a hard time getting custody if I do not live at home anymore?

Answer

In child custody cases, the court will generally not make a decision regarding custody based on one factor, but instead they look at the child’s “best interests.”  Because many different elements are considered, the likelihood of a court looking upon an action as favorable or unfavorable can depend on the totality of the circumstances.  It is important to contact an experienced family law attorney who can assist you in the proper planning and execution of your legal goals.


Question Detail

My wife and I are trying to work or marriage out and hopefully not follow through with the divorce. My concern is her attorney is telling her that compared to other men, I have only changed about 5%. And since we are trying to work things out my wife is holding on to his statement as a matter of fact. I do not want the divorce but this and other statements from him seem to me be biased and a conflict of interest. Not only is it untrue but how can he give such advice when he is not a licensed therapist or PhD and how can he assume what my level of change is? Especially when he has only spent about 1.5 hours with me. I have more concerns with these statements but this is mainly what bothers me. Also, if he does violate some code by doing this is there anything I can do? Thanks.

Answer

It depends.  While there are ethical implications due to the possible conflict of interest that arises when an attorney gives advice that he or she knows will lead to his or her financial benefit, it comes down to motives.  Is the evidence so clear that the motive of financial gain is clearly the dominant force behind the advice?  Because of the difficulty of that determination, a finding of an ethical violation is difficult.  To help explore all available options, it is important to contact an experienced family law attorney.


Question Detail

We are married in the Philippines, and my sister lives in the States right now. She wants to file a divorce here against her estranged husband who abandoned them when their kids were small. They don’t have any communications with him, and many years ago she learned he was living with another woman. Is it possible to have an American lawyer process it and how much it cost?

Craig’s Answer:

Yes, even though you were not married in the United States, you can get divorced here. The process to file for divorce requires that you meet the state’s residency requirement which in California is 6 months and 3 months residence in the county you desire to file in. Once you meet the residency requirement you can file for divorce. Every state has different requirements so you will need to check on your state’s requirements. As far as the cost, every lawyer charges different hourly rates. You will need to come up with a retainer to give to your attorney so they can begin working on your case. A retainer is like a deposit on your account because your attorney will begin incurring costs immediately. Retainers and hourly rates will vary depending on the attorney.

In some cases where you are trying to “lock in” jurisdiction to California but do not meet the required residency requirements yet, you might discuss with your attorney filing for a legal separation which does not have the same residency requirements and an be amended to a dissolution / divorce after you have lived in the state  and county for the requisite time.


Question Detail

What can I do if my ex-husband doesn’t comply with the marital settlement agreement? Our case is in California.

Craig’s Answer:

There are many remedies available to you if your ex-husband does not comply with your MSA. Has your MSA been entered as a judgment yet? If not you would want to make sure it is entered as a valid enforceable judgment. Once the MSA is a judgment, you can file a motion to compel his performance, a motion to compel or a motion for sanctions. You can also file for a wage garnishment is he is not paying you your portion of the community property or if he owes your spousal support. There is also a way to file a writ in order to seize his assets or have an asset transferred to your name. You have plenty of options available to you, it is just taking the initiative in order to obtain the remedy you seek.


Question Detail

If my husband purchased the house and we are going to get a divorce, can I still be entitled to the house?

Answer

It depends on many factors. In California, any assets purchased during marriage is presumed to be community property. If it is in fact community property than you will be entitled to any equity if there is any in the house. One of you can keep the house and buy the other person out or you can put the house on the market and sell the proceeds. If the house was purchased after the date of separation than it is presumed to be separate property. However, depending on what funds he used to purchase the house would come into play. There are a lot of factors to look at and I would suggest talking to an attorney to make sure that all your interests are being met and you get everything that you are entitled to in the divorce.


Question Detail

Can I have full custody of my son if his father in jail? I get child support, we are not together and he has no job.

Answer

Yes you can file a motion with the Court asking to have full custody of your child awarded to you while the father is in jail. It is likely the Court will do this for you. The father will then have a right to file a motion to get custody back once he is released from jail. He will have to meet certain conditions though before the Court will restore his parental rights especially since he has been gone from the child’s life for so long.


Question Detail

Can a disabled spouse who has a mental disability retain legal joint custody of the children? The father is on SSDI with mental issues and has a recent felony, and the mother is full time employed

Craig’s Answer:

When deciding custody and visitation issues, the court uses the “best interests” of the child standard. If the father’s disability affects his parenting ability and places the children in harm, than he may not be granted primary custody, but he may be granted reasonable visitation or supervised visitation. While you mention legal custody in your question, please note there are two types of custody: legal and physical. Legal custody deals with making decisions for issues such as education, health, etc.


Question Detail

Me and my ex-boyfriend have no legal custody agreement for our four month old. I am the custodial parent, and he signed the birth certificate and now wants a DNA test. Can I deny him visitation, and if I do will it reflect badly on me in court later?

Craig’s Answer:

If there is no custody/visitation order in place, than visitation should be agreed upon by both parties. The court looks at the “best interest” of the child when making custody/visitation orders. Therefore, if you are going to deny him visitation, you should have a good reason or else it will reflect badly upon you in court. You should help facilitate contact between both your child and the child’s father. You should file a motion with the court for custody and visitation orders. Your ex-boyfriend may request a DNA test, but if you truly believe he is the father, there shouldn’t be an issue with this request.


Question Detail

I filed for divorce after being married for only one month. A few weeks later after filing my husband convinced me to stop the divorce and I did. After counseling and trying to work it out I still want a divorce. Come to find out I filed a “dismissal with prejudice” can I still get a divorce?

Craig’s Answer:

Yes, you can still file for divorce even after filing a dismissal. You will need to open up a brand new case with the court, with a new case number. You will file all of the same documents you filed previously.


Question Detail

My boyfriend and I lived in the state of Nevada. Our son was two months old when I came to California. When my son was 4 months old my boyfriend decided to move out to California. Two months later things didn’t work out and my ex moved back to Nevada. Immediately I filed for custody and at the time of filing my son was 6 months. Two weeks later I’m served with papers from Nevada claiming I improperly filed. Who has rightful jurisdiction? California or Nevada?

Craig’s Answer:

California’s jurisdiction requirements state that the child’s home state is the state the child has been living in for the past six (6) months. Because your son was only six (6) months old when you filed the action, and you appear to have lived in California for the majority of his life, California should have jurisdiction. It is likely that your boyfriend will contest California having jurisdiction, so it would be in your best interest to consult with an experienced family law attorney.


Question Detail

The mother of my three children and I never went to court to decide custody when we split and/or thereafter. We continued to live in the same city and I was in the children’s lives. A couple of years ago she disappeared with the kids. Just recently I found out that she moved to the state of Idaho with the two youngest (now 13 and 11) and left the oldest child (now 16) here in the care of his friends mother. Can she move out of state with them and leave the other with someone else without my permission or knowledge? What are my rights and options?

Craig’s Answer:

You should file a motion with the court to set custody and visitation orders. In order for California to have jurisdiction, the children must have been residing in the state for the last six (6) months. Therefore, it is likely that you may have to file your custody motion in Idaho, if they have been residing in Idaho and Idaho has jurisdiction. Normally when there are court ordered custody/visitation orders already in place, the children cannot be removed absent a court order or the written consent of the other party.


Question Detail

My permanent residence is in Washington State with my four minor children. However my husband left to California to live with his parents eight months ago when we began to have marital problems. I recently in January came to California with the two youngest children to try to save my marriage and pursue marital counseling. I was served with divorce papers at the beginning of this month in California, and have recently found out I have ovarian cancer. I would like to go back to my permanent residence with my two children to pursue cancer treatment until the court date. Is it illegal for me to take my children back to our home until the court date? Or do I need permission from the court?

Attorney Michael Fischer

 Mike’s Answer:

Because you have been served with divorce documents, you cannot remove the children from the state. On the back of the Summons are ATROS (Automatic Temporary Restraining Orders). These orders state that absent a court order or the written consent of the other party, the children are not to be removed from the state. However, you can file a motion to request permission to move back to Washington with the children. You will need to respond to the divorce documents within 30 days. Given the complexity of your case, you should consult with an experienced family law attorney.


Question Detail

I met a girl a while ago and we made out a few times but did nothing more (a.k.a no intercourse). All of a sudden I start receiving calls from a child support office claiming that I am the father of this girl’s child and have to pay child support for her baby. Can they make me pay without a DNA test that proves I am the father of the child? Do I need an attorney to represent me in court?

Attorney Michael Fischer

 Mike’s Answer:

While you do not have to have an attorney represent you in court, it would definitely be beneficial given the complexity of your case. If you failed to respond to a complaint regarding this matter, you may have been defaulted and no DNA test would have been required. If you were never served with a complaint, than you should request a DNA test as soon as possible.


Question Detail

I am thinking about giving up my rights to my children. What consequences would I face if I wanted to do so? Would I still be required to pay child support?

Attorney Michael Fischer

 Mike’s Answer:

You cannot give up your rights as a father to get out of your obligation to pay child support. However, there are limited circumstances where the child can be adopted, at which point one would no longer have to pay support since they ar no longer the legal parent of that child.  The primary question is do you really want to give up all rights to your child and secondly is there someone else willing to step in to adopt the child and assume the financial obligations that go along with supporting the child.


Question Detail

I was awarded monies from spouses 401k in divorce. What forms do need, or how do I go about collecting?

Attorney Michael Fischer

 Mike’s Answer:

A Qualified Domestic Relations Order (QDRO) should be prepared, filed and served on the 401K administrator. If your divorce judgment did not provide for a QDRO, you should file an Order to Show Cause motion and ask that the court order one. Your spouse’s employer may have sample language for the QDRO.


Question Detail

Are any gifts I received while married considered to be part of the assets to be divided between me and my spouse?

Attorney Michael Fischer

 Mike’s Answer:

Generally, gifts are the separate property of the party who received them. This is true whether the gift was given prior to marriage or during marriage.


Question Detail

My husband is trying to control my every move. I want to leave but he said if I leave if can’t take my son because I don’t have a job. Could I get custody?

Attorney Michael Fischer

 Mike’s Answer:

Yes, you can get child custody even if you are unemployed. The court considers the “best interests of the child” when determining custody and visitation. You will need to file for divorce and file an Order to Show Cause requesting that the court set orders for child custody, visitation, child support and possibly spousal support. It is likely that the court will order him to pay you support for the care and maintenance of your son and maybe even spousal support depending on your individual circumstances.


Question Detail

Two years ago I was at my now ex’s house with my two children when a raid took place for marijuana. I was clueless to the fact that he was growing marijuana in the garage. CPS was called and kids were taken. It has been a hopeless battle for me with false hope after me doing everything and more than was told to do I went to a very strict four days a week drug program, was drug tested three times a week, rehab, eventually rented my own apartment. I jumped through all the hoops. The father was asked to attend parenting classes and was granted full physical custody. We both share joint custody and I see my son four days out of the month and he controls everything and threatens that he doesn’t have to let me see him at all. I have not had a fair chance at all. I need help, even my criminal charges are the same as what he was charged with and I was just a guest that stayed the night at his residence.

Attorney Michael Fischer

 Mike’s Answer:

If you have completed your rehabilitation program, are currently sober and have been keeping up with your court ordered visitation time, you will want to file a motion to modify the current custody and visitation order. Given the complexities of your case, it would probably be in your best interest to consult with an attorney.


Question Detail

My niece’s husband left her and isn’t paying her any support. She doesn’t have money because she has three children and no job. What can she do?

Attorney Michael Fischer

 Mike’s Answer:

In addition to filing for dissolution, she can file a motion with the court requesting child and spousal support. If she is unable to afford the services of an attorney, she can contact her local Department of Child Support Services (DCSS) for assistance. Also, Family Law Facilitator offices located in many courthouses can assist her in preparing the necessary documents to request support.


Question Detail

Is the opinion of the child ever taken into consideration in a divorce? If so, at what age to the court actually take that opinion into consideration? Thank you in advance.

Attorney Michael Fischer

 Mike’s Answer:

Depending on a variety of factors, including the age of the child, the court has the ability to consider a child’s opinion in custody matters.  Often times, the Family Court Services counselor will speak to the child before preparing the written custody and visitation recommendations.  The information ascertained from this meeting could impact the recommendations provided by the counselor.  While there is no absolute age a child must be for the court to consider their imput, they must have the mental capacity and maturity level to form a reasonable opinion regarding their preference.


Question Detail

When parents are divorced and have equal and joint custody of their child, does a child need both parents approval in order to go away to something like a private school or college prep school? It is a boarding school scenario. If the child does need the approval of both parents, then can the child appeal to a judge? Will the child need to hire a lawyer? What can be done? (The child in question is nearly 16 years old and wishes to spend their last two years of high school at an advanced private school, but one parent will not agree to let the child go.)

Attorney Michael Fischer

 Mike’s Answer:

In a situation like this, you can request an order from the Court allowing your child to attend the school. You would file what is called an order to show cause and get a hearing date. You will want to present evidence as to why going away to school is in the child’s best interests. The other parent would have to submit evidence as to why it is not in the child’s best interest. The judge will be able to grant the order for the child to move away.


Question Detail

I do not know why she is doing this, she is telling the police that I was molesting our son. She took him to the doctor to have him checked out. He is four years old. I did not do anything.

Attorney Michael Fischer

 Mike’s Answer:

These are very serious allegations that your wife is making. I would not make any statements to the police unless you have an attorney present. Even if you have not molested your son, the allegations will be taken seriously. Typically, Child Protective Services will be involved and will conduct an investigation to see if the molestation allegations are founded or not. If CPS has reason to believe that the child is being molested, he will be removed from the home. If not, you might want to consider filing charges against your wife for making malicious allegations against you. I would contact a criminal defense attorney to help you with your case and do not willingly talk to the police unless you have an attorney present.


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