Saturday, January 19, 2008

Before Filing For Divorce

What is a "divorce"?

A divorce is a legal process where married couples become single again. During the divorce process, their assets and their debts get divided. Their children have parenting plans, and sometimes other issues are addressed through divorce, like drinking, drugs or domestic violence.

Can couples that were never legally married get a divorce?

In California, couples that were never legally married are not eligible for a divorce. Remember that getting a divorce means that you're moving from being a married person to the status of a single person. So if you've been living with someone, to whom you were not legally married and you have issues regarding, for example, property that was acquired while you were living together, that would be a civil matter and you would be dealt with in small claims court or civil court. You would not find yourself in Family Law court.

Can couples that entered into a domestic partnership get a divorce?

All of the same issues that divorcing parties have would apply to domestic partners who want to go their separate ways. You would be talking about dividing property, dividing debt, parenting issues, custody, visitation, child support and spousal support, all issues raised in divorce.

Is it true that half of all marriages end in divorce?

What I do know is the divorce rate is really high. And I know that when you make general statements about people, there are always exceptions, but what I've found to be true generally is that people get divorced generally because they got married for the wrong reasons. And typically, men, you marry women hoping they'll never change. And women, you marry men hoping to change them.

What factors should I consider before deciding upon divorce?

When you're thinking about divorce, you should probably do some self-reflection first. For example, if you're forty years old and you've been married for nineteen years, and maybe had a relationship before you got married, you have half of your life invested in this relationship. Maybe you can fix it. Maybe you should spend some time and effort in counseling and therapy before deciding on divorce. Maybe there are drug or alcohol issues that you want your or your partner to address. If you got married for the wrong reason, and you're in a short term marriage, maybe divorce is right for you. A gentleman called me the other day and told me he's been married for six months and he got married to save money on his car insurance. Bad choice. Maybe that's a relationship that isn't worth fixing. I think you have to look at where you are in life, and ask yourself where you want to be, and how you're going to get there.

Do I need a reason to get a divorce?

California is a no-fault divorce state. The reason to get a divorce in California would be a statutory reason, and it's called "irreconcilable differences." When divorcing parties go into court, they look at the judge and say, "We have irreconcilable differences," and they don't really define with that is. The irreconcilable difference could be that a spouse has a boyfriend or a girlfriend, or it could be you simply don't like the way your spouse looks anymore.

Can my spouse or myself deny a request for a divorce?

In California, a spouse cannot stop the other spouse from getting a divorce. It's going to happen. The options for a spouse are to go along with the divorce, or prolong the divorce process, slow it down, make it more difficult, but people in California are entitled to a divorce and there's really no way a spouse can stop that from happening.

How long do divorces take?

I'm frequently asked how long a divorce takes, and I find that divorce is really a reflection of the parties. What I mean by that is that some people come in and say, "We have an agreement. We want you to just write it up, walk it through." That divorce can be done in as little as 2-3 months. Being restored to the status of a single person takes six months in California. However, I've had divorces that lasted nine years, and the husband and wife fought over everything, every issue, every detail, every plate - everything. There's no boilerplate or stock answer to the question. There are different issues in different families. Everybody has their own priority and everybody picks and chooses their own battle when it comes to divorce.

Do I have to prove my spouse is at fault to get a divorce?

In California, you do not have to prove that your spouse is at fault to get a divorce. The statutory grounds are irreconcilable differences, and no one really asks you what those differences are. It could be you don't like the way your spouse butters your toast. Irreconcilable differences.

I've decided to get a divorce. What's my first step?

Once you've decided to get a divorce, your first step is to ask yourself: What process do I want to use to get a divorce? There is a default divorce process, and it's running to court and going to Family Law court and hiring two lawyers and letting the two lawyers take over your life and asking a judge, who doesn't know you, your spouse, or your kids, to make the decisions that maybe you want to make for yourself. That's the default divorce process. But you also have a choice to opt out of the judicial system and go into collaborative family law or go into mediation as a first step in divorce proceedings. It's important to sit down with your spouse and ask him or her: "What do we want to accomplish here?" "How much money do we want to spend on lawyers and what can we do with the money that we don't spend on divorce lawyers?" "How can we spend that?" "How can we spend that on ourselves?" "How can we invest that in our children's' education?" So the divorce process, the choice is the divorce process.

Do I need a divorce attorney?

Maybe you do need a divorce attorney, maybe you don't need a divorce attorney. Do you need divorce advice? Absolutely. You need to know what your rights are, you need to know what your obligations are, you need to know what to expect, which an attorney can tell you.

How do I find a divorce attorney?

Different people have different ways of finding divorce attorneys: some people, yellow pages, other people, internet. I know people that actually go into the family law department in their community and sit in the gallery and watch. When you sit in the family law court, you'll see; there are some lawyers who walk into court, they know their client, they know their issues, they're sharp, they're focused, they're ready to rock and roll. There are other lawyers who walk in and say "Mr. Jones here's?" And so, that's one way to know is, go to the family law court and see who's doing what.

What can I do if I cannot afford a divorce attorney?

If you can't afford to hire a divorce lawyer, there are other ways to find professional help. Some courts offer classes on how to fill out the forms. They give you free walk throughs. They give you assistance. In California, for example, we have something called the Family Law Facilitator. And you can go into that office and have the forms filled out for you for free. You can also talk to a Paralegal. Sometimes they're called a Document Preparer or a Licensed Document Preparer. These are people who have been trained, and in the case of a Document Preparer, licensed, to fill out the forms. And they'll sit down with you and ask you questions. They're not allowed to practice law, they're not allowed to give you legal advice, but they can talk to you about the process, talk to you about the forms, and kind of walk you through it.

What questions should I ask a prospective divorce attorney?

When you have your first meeting with your divorce attorney, ask them questions such as how long they've been practicing law, how long they've been practicing family law. Ask the divorce attorney whether they have any special training, mediation skills, collaborative training. Ask the divorce attorney the question why you should hire them. Remember, when you hire your divorce lawyer, they work for you; you don't work for them. So, it's a job interview and the divorce attorney needs to give you a reason for you to part with your money and hire them. Ask them.

What should I bring with me when I go see a divorce attorney?

When you have your first meeting with your divorce attorney, I would recommend that you bring with you a list of all of your marital assets and debts, a list of your assets from before the marriage, your tax returns, and your pay stubs. Also, think about the questions you want to ask that lawyer, and think about the answers you want to get and write those questions down. Be prepared to ask the lawyer all the questions that you want answers to so that you'll get the information you're looking for.

What is the first step the attorney will take to begin the divorce process?

When a client consults with a divorce attorney like me it's a 3 or a 4 step process. The first step is the attorney asking questions and gathering information. The thought behind this first step is, I can't answer questions unless I have all the information. My second step is to provide the client with a summary of California divorce law. What to expect - we're a no-fault divorce state. Parenting issues are based in the best interest of the children. This is how child support works, this is how spousal support works. Do you have issues of domestic violence, drugs or alcohol? That would be the second step is an explanation. The third step is to say to the client, "now that I've gathered information and hopefully by now I've answered all your questions, but maybe you have some questions that I haven't answered, so why don't you ask them?". Once I know I've answered all my potential client's questions, I then talk to them about the process. There's a litigation process, that's the default setting where people think they have to go, there's mediation, and of course, there's collaborative family law.

If I can't locate my spouse, how can I serve divorce papers?

If you don't know where your spouse lives you can't personally serve your spouse with divorce papers. There's a process in California called Service by Publication. In order to do that you need a court order to serve the summons and petition by publication in a newspaper. In order to qualify for Service by Publication, you have a number of steps to take to prove to the court you've done everything you can do to find your spouse. Once you complete the steps, you get an Order of Publication. It's published in a newspaper once a week - for around four to six weeks - and at the end of that process, you've got service for your divorce.

Do I have to go to court in order to get a divorce?

I am often asked, "Do I have to go to court to get a divorce?" And the answer is: "Maybe." And it really depends on what you're working with. For example, if you have a situation where you and your spouse have an agreement, or over time come to an agreement, the agreement is reduced to a written document. It's submitted to court; you don't have to go. If you and your spouse can't agree, you're going to court because you are asking the judge to make the call. And that requires you to be in court. If you are a self-represented party, you are speaking for yourself in court. If you are represented by a family law attorney, then the lawyer is usually doing the talking for you in court. Sometimes the court puts people on the stand, and they're questioned. And they are asked to give answers to questions. So whether or not you have to show up in court really depends on what you are working with... right off the back.

What is a "no-fault divorce"?

A no-fault divorce is a divorce that's based on a generic principle. In California, it's irreconcilable differences. Before we became a no-fault divorce state, we were a fault state, and the grounds for divorce were infidelity or extreme mental cruelty. When we were a fault state, you had to prove that your spouse was cheating on you before you could get a divorce, or you had to prove that something else was happening that met the statutory criteria. With the no-fault divorce, you go into court and you say, "We have irreconcilable differences. I want to be divorced." That's it.

What is an "uncontested divorce"?

An uncontested divorce is a divorce where the parties come to an agreement and submit that agreement to court. So there's no contest in court. Nobody's walking in to a court room and saying, "Your honor, we can't agree on this issue. We want you to make the call."

What is an "annulment" and who is eligible for it?

An annulment is a legal declaration that the marriage never happened. So when your marriage is annuled, you are not divorced, you've never been married. As opposed to a divorce, when you are divorced, you are single, but you've already been married and divorced. It's not used very often in California, there are very limited and specific grounds. They include a marriage that was based in fraud; a marriage where one of the parties was not 18 when they got married; a marriage that's bigamous. Maybe somebody married somebody who was already married and they have never been divorced. So those are some of the statutory grounds. You should consult with independent legal counsel to see if you qualify for an annulment.

What is the difference between separation and divorce?

There are two kinds of separations. A physical separation takes place when somebody moves from one house to another. A legal separation is different from a separation. A legal separation is a process that is identical to a divorce in almost every way. It's identical because it divides your assets, divides your debts, establishes spousal, parenting and child support if appropriate and arranges restraining orders. So, a separation is the same as a divorce, except at the end you're still husband and wife.

Why would I want a legal separation?

Since a legal separation is a process just like divorce, it's a process that takes time and money. Some people would want to know, “why would I even want to consider a legal separation?” Different people, different reasons, but some of the reasons for legal separation are: Religious. Some people for religious purposes can't get a divorce. Some people have marital problems or financial burdens and they want to work on their marriage, and every time they start working on the marriage these other issues come into play, like financial issues. And I've had couples that got a legal separation to strip all the issues out except the marriage, and it gave them an opportunity to work on the marriage and decide whether they wanted to stay married or not. Some people want a legal separation because it affords them an opportunity to qualify for insurance, to go their separate ways and still be on their spouse's insurance, maybe they can't get medical insurance any other way. So different people have different reasons for legal separation.

How do I obtain a legal separation?

If you decide that you want a legal separation it would be the same process as deciding that you want a divorce. You'd either consult with a family law lawyer, a mediator, a paralegal or your local self-help center. A separation is the same process, so you've got the same forms to fill out and the same steps to take.

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