Getting a divorce or going through a separation is a confusing process that can be made even more confusing when the legal terminology is added to the mix. To assist, ChildSharing.com put together some answers from frequently asked questions related to divorce or separation.

What is child custody?

Either parent may be awarded custody. There is neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, allowing the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child. In making a determination of the best interest of the child when deciding custody, the court shall consider all of the following:

1. The health, safety, and welfare of the child.
2. Any history of abuse by one parent or any other person seeking custody against any of the following: (1) Any child to whom he or she is related by blood or affinity or with whom he or she has had a care-taking relationship, no matter how temporary. (2) The other parent. (3) A parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship.
3. The nature and amount of contact with both parents, except as provided in Section 3046.
4. The habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol by either parent. The provisions of this subdivision shall not apply if the parties stipulate in writing or on the record regarding custody or visitation.
5. Any other factors the court finds relevant.

Child custody laws throughout the United States seek to provide some sense of order to the disruption of divorce and separation in efforts to smooth over this transition from a unified, nuclear family to a two-household family, with the spouses/parents living separate and apart.

One parent, generally termed the "custodial parent," will receive custody of the children from the court. The children will live for the most part with this custodial parent and visit with the "noncustodial parent" for short periods of time (hours or days). One exception to this rule is the "joint physical custody" arrangement.

Under joint physical custody, the time is divided more evenly or equitably (not always the same thing, so ask your attorney what may happen in your particular case). The children will spend significant amounts of time with each parent, often weeks at a time. Obviously, should the parents live in different states or towns – or sometimes even just school districts – a joint physical custody arrangement can be quite complicated for both the children and the parents.

What is child support?

Child support laws throughout the United States seek to provide some stability to the standard of living for children and to prevent or mitigate this decline. Child support laws also seek to provide some sense of order after the disruption of divorce and to smooth over the transition from a unified, nuclear family to a two household family, with the spouses/parents living separate and apart.

The law requires parents to support their children. It doesn't matter if the parents are married or if they are living together. The responsibility of child support is that of the parents as individuals or as a unit. Indeed, it doesn't matter if the parents have not had no continued contact after the conception of the child. All parents are legally responsible for child support. Both parents of a minor child have an equal responsibility to support their child in the manner suitable to the child's circumstances. The duty of support continues until the time the child completes the 12th grade or attains the age of 19 years, whichever occurs first. Both parents have an equal responsibility to maintain, to the extent of their ability, a child of whatever age who is incapacitated from earning a living and without sufficient means.

Courts are very concerned with providing for children's needs and one of the most basic needs is economic support. It is in the interests of the state and the court to make sure that children do not slip into poverty and they have the ability to grow up to become happy, productive members of society.

The goal of the state support guidelines and the court system is to ensure that each child's standard of living is preserved, as much as possible, had the divorce or separation not occurred.

What is a Separation Agreement?

A separation agreement is a contract between a husband and a wife, signed when a legal separation has been granted or when they have agreed to live apart in contemplation of a divorce. This agreement is ideal for couples who have separated and are not ready to file for divorce or legal separation. The purpose of the Separation Agreement is to divide any property and debts that you and your partner have incurred.

What is Spousal Support?

Alimony, maintenance or spousal support is an obligation established by law in many countries that is based on the premise that both spouses have an absolute obligation to support each other during the marriage (or civil union) unless they are legally separated. In some instances, the obligation to support may continue after separation.

The court shall consider all of the following circumstances where determining spousal support: (a) The ability to maintain the standard of living established during the marriage, taking into account all of the following: (1) The ability of the spouse seeking support to gain self-supporting employment (2) The extent to which that spouse's present or future earning capacity was impaired by periods of unemployment 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. (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 be gainfully employed 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 between the parties. (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. (m) Any other factors the court determines are just and equitable. [California Family Code - Sections: 4320]

How can I change the support amount I'm getting?

Child/spousal support payments begin with either a Court order or mutual agreement of the parties. You and your spouse can agree to begin the support payments prior to the judgment being final (temporary support). If you aren't in agreement, the party desiring support can file a motion with the Court to begin temporary child/spousal support. When your divorce is final, you will have a Court order (judgment) for more permanent support.

We filed for divorce, my ex refuses to pay support until it's final. Help! I can't wait six months.
What should I do?

You may go to Court filing an "Order to show Cause" motion to order your spouse to pay support. If you still can't collect, you can file a wage assignment with his employer so checks will be garnished.

We agree on a change in support. Do we still need to go to Court?

No. You will still need to file with the Court and both sign an agreement, but no hearing would be necessary.

Can I represent myself in Court?

Sure, but remember the old addage that says, "a person who represents himself has a fool for an attorney". You probably don't know the rules of the game and if the other side shows up with an attorney, you will be at a tremendous disadvantage. Having said that, if you feel confident in going to Court without counsel, there are several websites that offer forms and will provide the necessary documentation.

I'm not seeing my child enough. How do I get a better visitation plan?

You will need to file an "Order to show Cause" with the Court to change your visitation. You will be required to attend Court ordered mediation to resolve these issues. If that is not successful, you would have a hearing and go from there.

Can't find your spouse?

If you cannot find your spouse, you can publish the divorce summons in a newspaper. You first must convince the Court you have made every effort to locate your spouse. You must prepare a declaration for the Court detailing the efforts you have made to locate your spouse. The Judge will then decide if you have made all efforts and if you have, will issue an order for publication. Since the order will name a specific newspaper in which to publish, you will need to select the paper for publication in advance.

Once it's signed by the judge, the order which you will forward to the newspaper of your choice with the payment for the publication. They will publish the summons for four consecutive weeks. Cost to you for this ranges from $125 to $500 so it's best you research this in advance.

After four weeks, the newspaper will send you a proof of publication to submit to the Court. Your case can then be completed like any other case. The clock starts ticking the 28th day from day one of publication and the divorce can be final in six months from that date.

What is QDRO - QUALIFIED DOMESTIC RELATIONS ORDER

Q.D.R.O stands for Qualified Domestic Relations Order. It is a judgment or order that is made under California family law codes and 1. relates to the provision of support or property rights to an "alternate payee" 2. creates, acknowledges, or assigns to an alternate payee a right to receive benefits under the plan and 3. meets certain statutory requirements.

Not every pension and 401K plan requires a Q.D.R.O. You may contact you or your spouse's human resource department or retirement plan administrator to determine if you need one. If so, the draft Q.D.R.O. must first be approved by the actual plan before it can be submitted to the Court for approval. This process may proceed quickly or may be delayed for several months depending on the company. After the company approves the Q.D.R.O., you and your spouse will need to sign it and submit it to the Court for the Judge's signature. The order is then sent to the retirement plan administrator for implementation.