Frequently Asked Questions
Divorce, Legal Separation, and Domestic Partnership Termination (via mediation or litigation)
How long does it take to get divorced?
By law, the earliest is six months and one day from the date of filing the Petition or appearance by the respondent, whichever occurs first. Depending on the issues in your case, the case itself may take longer to finish. Call an attorney for more in-depth information.
How do I start my case?
First, you, or your spouse, must satisfy the residency requirements to file your case. Either you or your spouse must have lived in the county you are filing in for at least three (3) months and in California for at least six (6) months. If you satisfy these two requirements, then you may file your Petition and Summons with the family division at your local courthouse to start your case. For further information, please visit the Self-Help Center at your local courthouse or contact an attorney.
My spouse cheated on me! Can I use that against them?
Unfortunately, no. California is a “no fault state” – the courts do not care why you are getting a divorce, only that you are.
What is “legal separation?”
Legal separation, under the law, is when you have an actual judgment from the court saying you are legally separated. All your assets, debts, support, and custody issues will have been finalized. However, your marital status will not be terminated. If you have a new person in your life and want to get married, you will need to get a divorce. Simply living separate from your spouse is not legal separation. For further information, please visit the Self-Help Center at your local courthouse or contact an attorney.
How long does it take to get legally separated?
Unlike divorce, there is no time requirement. Whenever your judgment for legal separation is filed is when you are legally separated.
If my spouse wants a legal separation but I want a divorce, can I still get a divorce?
Yes. You can only get a legal separation if both parties agree to it. If one spouse wants a divorce, then you can only get a divorce.
How do I terminate my domestic partnership?
There are two methods, depending on what you qualify for: 1) summary dissolution or 2) regular divorce. For further information, please visit the Self-Help Center at your local courthouse or contact an attorney.
Is the divorce process the same when terminating a domestic partnership?
Yes. The only difference is that you and your partner do not have to satisfy the residency requirement. So long as your domestic partnership was registered in California, you can terminate via divorce process.
I am in a same-sex marriage and a registered domestic partnership with my spouse. Do I have to open two different cases?
No, you can terminate both in one case. Just make sure to indicate on your papers that you are ending both your domestic partnership and your marriage.
What if my spouse doesn't want a divorce?
Divorce is not the only option.
Before making a final decision, it may be helpful to explore alternatives such as a legal separation, a separation agreement, or even a structured cohabitation agreement. Mediation provides a space to examine these possibilities together and determine whether there is a path forward that meets both parties’ needs.
A separation agreement, for example, can address property division, financial responsibilities, and parenting arrangements without immediately terminating the marriage.
Sometimes clarity comes not from rushing toward divorce, but from understanding the full range of options available.
I was served divorce papers, but I don't want a divorce. What can I do?
Under California law, one spouse cannot prevent the other from obtaining a divorce. Consent from both parties is not required.
However, even if a divorce case has been filed, there may still be opportunities to resolve matters thoughtfully through mediation or negotiated agreement rather than litigation.
Is there an alternative to litigation for divorce?
Yes. Mediation offers an alternative to handling the process in court.
Through mediation, parties can explore creative and practical solutions, including separation agreements, temporary living arrangements, or structured financial agreements, while remaining married, if appropriate. When both individuals are willing to engage in productive discussion, it may be possible to reach agreements that address immediate needs without escalating conflict.
Litigation focuses on what the law can order. Mediation focuses on what the family needs.
Choosing a cooperative process at the outset can create more flexibility and preserve dignity during an already difficult transition.
Mediation
What is Mediation?
Mediation is a structured process guided by a neutral third party (the mediator), who helps both individuals work toward a mutually acceptable agreement. The goal is an amicable, respectful resolution whenever possible.
Mediation is not a magic solution, and the mediator does not impose decisions. Meaningful progress happens when both parties are willing to participate honestly and engage in the work of resolution, with expert support.
It is also not a place to nurture fights. Mediation is designed for collaboration, thoughtful discussion, and forward movement, not for prolonging conflict or revisiting old battles. If differences are too entrenched or communication has completely broken down, mediation may not be the right fit, and other legal options may need to be considered.
At its core, mediation is about dignity, cooperation, and creating practical agreements that allow families to move forward.
What can I expect from mediation sessions?
Mediation is a collaborative process designed to help both parties reach workable agreements outside of court. Rather than focusing on “winning,” mediation focuses on practical solutions you can live with.
Unlike litigation, mediation allows flexibility. Instead of a judge deciding your outcome, you and the other party, with guidance from a neutral mediator, create customized agreements that reflect your family’s needs and priorities. This often leads to more respectful communication and longer-lasting resolutions.
Mediation requires active participation. The mediator facilitates the discussion but does not make decisions for you.
For many clients, mediation is also educational. It creates transparency around finances, assets, parenting responsibilities, and future obligations. Both parties gain a clearer understanding of the full picture before making decisions.
When children are involved, mediation provides space to thoughtfully address custody and visitation. Parents can better understand what shared parenting will look like after separation, leading to more balanced and sustainable parenting plans.
Mediation is about informed decisions, dignity, and moving forward with clarity.
How do you handle conflict during mediation?
Conflict is common during mediation, especially when emotions are high. When needed, we may use individual sessions (sometimes called “separate sessions” or “caucuses”) to help move the process forward.
These individual meetings are not confidential; what is discussed will be shared with the other party. However, they can provide a more comfortable space to raise concerns, clarify misunderstandings, and address sensitive issues, including safety concerns.
If communication becomes too escalated or unproductive, the mediator will assess whether mediation remains appropriate. In some cases, litigation may be recommended if meaningful dialogue cannot be reestablished.
Our goal is always to promote respectful communication and practical resolution. When that is no longer possible, we will guide you toward the next appropriate step with honesty and care.
What if my spouse doesn’t want to do mediation?
Mediation is a voluntary process. Both parties must be willing to participate for it to move forward.
If your spouse is unsure, you can first share information about mediation so they can make a more informed decision. Sometimes hesitation comes from misunderstanding the process. Learning how mediation works and how it differs from litigation can help clarify if it is a good fit.
If both parties are open to exploring the option, we offer a complimentary consultation to review the mediation process, including its benefits and limitations. After that discussion, each person can decide whether mediation feels appropriate.
If your spouse ultimately declines mediation, then the next step would typically be to proceed through the court process.
Our goal is always to guide you toward the path that best supports a respectful and workable resolution.
Can you represent me legally and assist us with mediation simultaneously?
No. A mediator must remain neutral and cannot represent either party. If you choose mediation, the mediator’s role is to guide the process, not to advocate for one side.
If you would like legal representation while participating in mediation, you would need to retain a separate consulting attorney. A consulting attorney can review proposed agreements, advise you on your rights, and help you make informed decisions before anything is finalized.
We strongly recommend that each party have independent legal advice during mediation. Having a consulting attorney allows you to move forward with clarity and confidence, while still preserving the cooperative spirit of mediation and avoiding unnecessary litigation.
Our goal is always to support informed decisions and thoughtful resolutions that serve your long-term interests.
Do you consult other experts during the mediation process?
When appropriate, we may involve outside professionals during mediation to ensure both parties have clear, reliable information before making important decisions.
Depending on the circumstances, this may include financial experts, real estate professionals, business valuation specialists, or mental health providers. Their role is not to intensify conflict, but to clarify complex issues so that discussions are grounded in facts rather than fear or assumption.
When experts are used within mediation, their knowledge supports creative and practical problem-solving. Instead of serving as litigation tools, they help both parties better understand their options. Education reduces uncertainty. When uncertainty decreases, anxiety often softens, and when anxiety softens, there is more space for reasoned conversation and compassion.
In this way, expert input can strengthen the mediation process and help families reach thoughtful, durable agreements.
How is mediation approached differently at the Law Offices of Kathleen Dong?
We are one of the few family law firms that handle both litigation and mediation. That experience matters.
Because we regularly see how cases unfold in court, we can provide a realistic understanding of what litigation may look like, including its limits. That perspective allows clients in mediation to make informed decisions with a clearer picture of potential outcomes.
Mediation is not document preparation. It is a structured, thoughtful process that requires engagement, honesty, and a deeper understanding of family dynamics. With sensitivity, we tailor the process to each family's needs, whether the issues involve significant assets, complex parenting schedules, or long-term co-parenting relationships.
Divorce may end a marriage, but it rarely ends the relationship between two parents. Mediation creates space to design how that relationship will continue to evolve, rather than allowing conflict to define it.
What makes your mediation process more comprehensive?
We approach mediation with flexibility and depth.
When helpful, we may involve financial professionals, therapists, real estate experts, or consulting attorneys to ensure decisions are grounded in complete information. This allows parties to explore creative solutions that may not be available through court-imposed orders.
We also conduct individual sessions as needed, giving each person space to express concerns, clarify priorities, and address sensitive issues in a structured way.
Given the current demands on the family court system, mediation can also provide a more timely path to resolution. Many clients are surprised to find that when information replaces assumption, fair and durable agreements become possible.
Mediation does not eliminate differences. It creates a framework to work through them with dignity.
Parentage
The other parent and I were never married but I want custody and support orders – can I still get them?
Yes, by starting a parentage case (aka “paternity case”) with the court. For further information, please visit the Self-Help Center at your local courthouse or contact an attorney.
I am (not) the father of a child, but the mother is saying that I am (not) how do I dispute this?
You may request a court order to conduct a DNA test. For further information, please visit the Self-Help Center at your local courthouse or contact an attorney.
I am not the biological father, but this is my child, is there anything I can do?
Yes, you can ask the court to make a determination that you are a “presumed” parent. For further information, please visit the Self-Help Center at your local courthouse or contact an attorney.
Child Custody and Visitation
What is legal custody?
The right and responsibility to make the decisions relating to the health, education, and welfare of a child.
What is physical custody?
Who the child resides with.
What is a timeshare schedule?
A schedule that details with whom and for how long a child lives/visits a parent. For example, alternating weeks or three dinner visits a week. For further information, please visit the Self-Help Center at your local courthouse or contact an attorney.
Child Support and Spousal Support
How do I get child support?
There are two ways: 1) divorce or paternity filing or 2) going to your local child support agency and asking the Department of Child Support Services to open a case on your behalf. For further information, please visit the Self-Help Center at your local courthouse or contact an attorney.
Do I have to pay child support?
Yes, as long as you have been determined a parent of the child, you are required to pay child support by law.
When does child support end?
When the child turns 18 unless they are still a full-time high school student. In such case, child support ends when the child turns 19 or graduates from high school, whichever occurs first.
I want spousal support. How do I get it?
If you and your spouse can’t come to an agreement, you can file a request for a spousal support order with the court. Whether or not you will succeed on your request depends on the facts of your case. For further information, please visit the Self-Help Center at your local courthouse or contact an attorney.
How long does spousal support last?
It depends. If your marriage is over 10 years, spousal support can last until death, remarriage of the supported party, or further order of the court, whichever occurs first. If your marriage is under 10 years, then spousal support is usually half the length of your marriage. But this is not always the case because the court can order otherwise, or the parties can agree to a different duration.
What if I choose not to pay spousal support?
If there is a court order requiring you to pay spousal support, you could be criminally charged for contempt of court order. You will also owe all past due amounts that you have not paid. If you are not paying because you can’t, then you may seek a modification of your spousal support order. For further information, please visit the Self-Help Center at your local courthouse or contact an attorney.
Property Division
What is considered separate property?
Anything you owned before you were married or registered your domestic partnership and anything you acquired after your date of separation. Inheritance and gifts acquired during marriage is also separate property.
What is considered community property?
Generally everything spouses or domestic partners own together that was acquired during the marriage or partnership. This includes earnings and debts.
I put the money I earned from my job during marriage into an account in my name alone. Isn’t this my separate property?
No. All money earned by spouses or domestic partnerships during the marriage or domestic partnership is community property. This includes anything bought with that money.
Premarital Agreements
For a prenuptial agreement, does my fiancé(e) need their own attorney?
Yes. California law now requires both parties to have the prenuptial agreement be reviewed by their own attorneys.
Is there anything the prenuptial agreement can’t cover?
Yes. It cannot contain terms pertaining to child custody, visitation, and child support. Nor can it be drafted in contemplation of divorce.
When is the best time to get the prenuptial agreement done?
At a minimum, California law requires there to be 7 days between receipt of the final prenuptial agreement and the date of signing. It also must be done before you actually get married (hence “prenuptial”). It takes much longer to prepare the prenuptial agreement, because both sides must exchange financial disclosures, which is usually the most difficult part. Start preparing your prenuptial agreement at least a couple months in advance, preferably more.
Modification of Prior Orders
Can I change prior child custody and visitation and support orders?
Yes, at any time.
Can I change prior spousal support orders?
It depends on the current spousal support order. For further information, please contact an attorney.
Can I change prior division of property orders?
If the property has already been divided according to a judgment, then no, you cannot. However, you may be able to set aside the judgment. For further information, please contact an attorney.
Let's have a conversation.
Call, email or meet with our team in person at our San Jose family law office.