Saturday, January 19, 2008

After Filing For Divorce

Is my marriage over when I start the divorce process?

When you start the divorce process, your marriage is not over. It's the beginning of the end, and your marriage is over when you're restored to the status of a single person. That usually takes place at the end of the divorce process. Some people, for various reasons, don't want to wait until the end of the divorce process, so, in California, we have a process called bifurcation. Bifurcation lets people be restored to the status of a single person in six months, and then they can spend the next umpteen number of years fighting the divorce, and battling over assets and debts.

What if I file for divorce but change my mind?

If you file for divorce and change your mind, you can put the whole divorce process on hold for a while, or you can dismiss the divorce and go back to your marriage. So, you really have total flexibility to change your mind, until the end. And once you have a decree at the end that says you're divorced, then you are divorced, and if you change your mind your only option would be remarriage.

What if my spouse and I agree on all of the terms of the divorce?

If you and your spouse agree on all of the terms of the divorce, consider yourself really lucky, because you're going to save a lot of time, a lot of money, and a lot of grief, and a lot of heartache. See your local divorce professional and have them write up a stipulated agreement. Walk it through. You're done.

What if my spouse and I cannot agree on the terms of the divorce?

If you and your spouse can't agree on the terms of your divorce, you're going to need some help. You need to look for what process you're going to use. You can hire two divorce lawyers. You can spend your entire bank account on going to court and letting some judge make that call for you. You can hire a mediator. Get some help, get some guide lines. Mediators are really good at telling you, "this is what normally happens", this is what you should expect if you go to court, or if you don't have to. Or, you can sign up for a collaborative family law case and get the whole team involved. Bottom line, get as much information as you can and work it.

How does infidelity impact the divorce process?

California is a no-fault divorce state, so infidelity really is a non-issue and the courts don't want to hear it. In theory, infidelity could be a slight issue if you are divorcing and have children, and you happen to be having your little fling at home, and the children see your infidelity and they're damaged and traumatized. But that's not usually the case. Usually, the case is a spouse is angry because their spouse broke the vow of fidelity. And then we get all these issues that are based in anger instead of based in reason. California says it's a non-issue. Infidelity hurts. I know it hurts a lot, but it's not going to get you anywhere in court by playing that card.

Can a judge deny me a divorce?

In California, a judge cannot deny you a divorce. All the judge is going to do is set the terms: Who gets what, when, how? Who pays what, when, why? How the children are parented. If you want a divorce in California, that's a done deal; we're a no-fault divorce state.

What if I refuse to sign the divorce papers?

There's a summary divorce, which is for people that have been married for less than five years, have no children and almost no assets. That process requires both husband and wife to sign, and if one of them refuses to sign: no divorce. The regular divorce doesn't require your spouse's signature. It requires a judge to make an order. So, you can serve your spouse, they don't have anything to sign, you don't need their cooperation, you don't need their consent, and at the end of the process, you're divorced.

Will dating others before the divorce is final affect the outcome?

The problem in dating others before the divorce is finished is the reaction you get from your spouse, and the anger and the hurt and the resentment, and the frustration that comes from that. Men and women think differently. And, generally speaking--not always--but generally speaking, men want to consult with the family law lawyer and want to talk about the process. How do I get from Point A to Point B? How much is it going to cost? How long is it going to take? Generally speaking, women come in, and they want to talk about how they're feeling. And if a woman comes in hurting because her husband is dating some other woman, and sometimes, that client wants to talk about pain, suffering, revenge, how much can I make it hurt. You don't need to be there.

How do I handle emergency property or custody issues?

In family law court, there's very little that's handled immediately. If you have custody issues, and there's some urgency to them or it's an extremely urgent situation, we have a process called ex parte. And what that means is you give telephonic notice to the other side that you are going to go to court tomorrow, and you're seeking emergency orders. And those orders are pretty hard to get, so it's got to be a dire emergency, whether it's children or property. Normally, financial issues are not deemed dire emergencies. And sometimes, you walk out of an ex parte hearing getting your request denied, but you get an order shortening time, so instead of waiting six weeks for a hearing, you wait two weeks for a hearing.

What do judges consider when distributing property?

When distributing property, what a judge is going to consider is its real value and whether it makes sense that assets should go to one party over another. For example, if it's a business that one spouse has been running all of his or her life, in all probability that business is going to be awarded to that spouse in a divorce. The question will be what is the compensation for the community interest in that property to the other spouse.

What can I do if I feel the judge was unfair when distributing property?

If you think the judge was unfair in making a decision, there is a process for appeal. When you look at that and you consult with a lawyer on whether or not you can appeal it or ask for a new trial hearing, from the lawyer's side it's really not about whether the judge was fair; it's about whether the judge made a decision that's reasoned within the statutory scheme of life, here in California, for example, or within the scheme of case law. So, if we have cases that say, "Under certain circumstances, the judge can do A, B, or C," and the judge chooses B, and you say, "That's not fair," tough luck. On the other hand, if the judge makes a bad call, an unreasoned call, and makes a decision that isn't supported by statute or case law, then there are processes to try and change that.

Will the courts divide up our debt?

There is community debt and there is separate debt. Community debt is usually divided equally between the divorcing spouses during a divorce. Community debt is any debt incurred between the date of marriage and the date of separation. Separate debt isn't divided. Separate debt is a debt that you had before you got married, or the debt that you incurred after the date of separation. Separate debt is your debt.

Is there a limit to the amount of alimony that my spouse can receive?

There might be a limit as to the amount of alimony your spouse receives and there might not. Really with alimony it's two questions: how much and how long? General rule of thumb, half the length of the marriage. In California, marriages of ten years or longer, long term marriages. In a long term marriage, alimony could go until death or remarriage. Everybody's unique, everybody's case is different. If you have a disabled spouse, we'd approach it in one fashion. If you have a spouse that has a history of working and all of a sudden just doesn't want to, we'd look at that differently. If we have a spouse with no skills, never worked, then we would want to look at that and say, "What can we do to get that spouse working, what about education, what about training, how long is it going to take?" Generally speaking, there is a statutory expectation in California that divorcing spouses become self supporting within a reasonable period of time. The question is, what's a reasonable period of time? What's reasonable if you've been married for two years is going to be totally different than if you've been married for twenty-four years.

Can I remarry before my divorce has been finalized?

I have been asked if it's legal to remarry before the divorce is finalized, and that's a really tough question because when somebody uses the term 'divorce finalized,' it means different things to different people. It is legal to remarry after you've been restored to the status of a single person. That can come at the end of the divorce, or it can come before the divorce is finalised. Bottom line is, if you haven't been restored to the status of a single person, you're not eligible to be remarried.

No comments: