Frequently Asked Questions - Family Law :: San Diego Immigration & Green Card Attorney; Southern California Divorce & Family Law Lawyer

Q1. I am a housewife, and my American husband has filed for divorce and says I have no rights to the house, car, furniture, or any of the money in the bank because he is only one who works outside the home. Is it true?

No. California is a community property state, while each spouse is entitled to keep his or her Separate Property, each spouse is also entitled to keep up to 50% of the Community Property acquired during the marriage. In California, every dollar earned during the marriage is considered community property. Thus, each time the working spouse earns one dollar, he or she needs to share that equally with the non working spouse. Similarly, if one spouse earns $20,000.00 per year and the other earns $50,000.00, the money is added up and divided equally giving each spouse a Community Property share of $35,000.00

Although there are many exceptions and nuances to the general rule, Separate Property can be defined as Property acquired before marriage, or receive during them marriage by gift or inheritance. Community Property can be defined as all property acquired during the marriage except by gift or inheritance.

However, please remember that sometimes Separate Property can become Community Property and Community Property can become Separate Property. Thus consultation with a qualified divorce attorney is critical to determine your rights.

Q2. My husband says that if we get divorced, he will get child custody because I do not have enough money to support the children. I am scared about losing my children and want to know what I can do?

Generally, when granting child custody, the court looks to the “child’s best interest” and often follows the advice of a court appointed family services counselor. If you are a housewife with no outside income, the court will not deny you custody based on that fact alone. In fact the court may still ward you custody and order your husband to pay child and spousal support. Child support is determined based on the income of both spouses and the lifestyles needs of the child. Further, child support generally will continue until the child reaches the age of 18, the length spousal support is based on the duration of the marriage.

Q3. I would like to know about property, support and immigration issues when going through a divorce.

Many clients call my office upset because their American spouse has filed for divorce and told them that they have no rights to the house, car, furniture, or any of the money in the bank. However, the caller is often put at ease when I tell them that under California Community Property Law, while each spouse is entitled to keep his or her Separate Property, each Spouse is also entitled to keep up to 50% of the Community Property acquired during the marriage.

Although there are many exceptions and nuances to the general rule, Separate Property can be defined as Property acquired before marriage, or received during the marriage by gift or inheritance. Community Property can be defined as all property acquired during the marriage except by gift or inheritance.

It should be remembered though that sometimes Separate Property can become Community Property and Community Property can become Separate Property. Thus, consultation with a qualified divorce attorney is critical to determine your rights.

Further, if one spouse has stayed at home during the marriage while the other has worked outside the home, the stay at home spouse may be entitled to substantial support depending upon the length of the marriage and the amount of income earned by the working spouse. Remember, in California, every dollar earned during the marriage is considered community property. Thus, each time the working spouse earns one dollar, he or she needs to share that equally with the non working spouse. Similarly, if one spouse earns $20,000.00 per year and the other earns $50,000.00, the money is added up and divided equally giving each spouse a Community Property share of $35,000.00.

Child custody and support are also issues that are decided by the court absent an agreement between the husband and wife. Generally, when granting Child custody, the court looks to the “child’s best interest” and often follows the advice of a court appointed family services counselor. Child Support is determined based on the income of both spouses and the lifestyle needs of the child.

Further, many clients going through the divorce process are being sponsored by their US citizen spouse for a Greencard at the time the divorce is filed, and depending upon which stage of the greencard process she may be at, the dissolution of marriage can have a serious impact on the Greencard. For example, if the Immigrant Spouse already holds a Conditional Greencard, then so long as the underlying marriage was in good faith, she should still be able to Remove the Condition and obtain a ten year Greencard.

However, if the Immigrant Spouse has not even been approved for a Conditional Greencard, then the possibility of obtaining a greencard may depend upon whether or not she can file a Battered Spouse petition on her own without the need for her husband’s sponsorship. Although these petitions are generally filed by women, the petition is also available to men and it should be noted that the Battered Spouse petition applies to both physical and emotional abuse.

For more information regarding Family Law, please go to: http://www.courtinfo.ca.gov/selfhelp/family/

*The above information is general in nature and should not be considered legal advice. Please consult with an attorney to discuss the specifics of your case.