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California Divorce Information
California Divorce Information is a brief discussion of the what you should consider before seeking a divorce. As you read, I will walk you through the process of how to get a divorce in the State of California. This California Divorce Information can be used by a husband or wife.
Are You Ready for Divorce?
Before taking another step, you need to be sure that you want a divorce and that there is no hope of reconciliation. If you are not sure, take the time to talk to your partner first. It is better to find out now that both of you want to remain married and that you can work out your difference rather than discovering this later when you are in the divorce process.
Interviewing a Potential Divorce Lawyer
Interviewing an attorney to handle your divorce does not have to be a difficult undertaking. There are plenty of attorney who will offer you a free consultation to discuss your divorce. What is important is to find an attorney with whom you can work with. Remember that a divorce is both an emotional and financial undertaking. You will need to hire an attorney whom you are comfortable sharing personal and sensitive information. Make sure that you are able to communicate with your attorney and that the attorney whom you are hiring will be representing you in your case. You do not want to hire an attorney only to later discover that the attorney you first met is not directly handling your case.
The Initial Phone Call
The initial phone call should give you a “feel” for the attorney. If staff is friendly and helpful, it is a result of the work environment, and you will most likely find the attorney to have the same demeanor. There are very good reason why you may not initially be able to speak with the attorney over the phone. The first being that that the attorney will want to review any paperwork you may have. Second, an in-office consultation allows you to experience the office environment and to actually meet the attorney. Remember, you could be spending a great deal of money on you divorce and should meet your attorney.
In-office Consultation
There is no substitute for a face-to-face meeting with the attorney. Sit down with the attorney you’re interviewing and listen carefully to what he or she has to say about your case. Pay attention the level of care the attorney expresses about your case, the attention he gives to your comments, and any experience the lawyer may reference about the issues surrounding your case.
Questions and Answers
Have your questions ready ahead of time for your in-office consultation. You should also bring copies of any paperwork you may have regarding your case. The lawyer should talk to you about the California divorce process, California divorce laws, and the issues surrounding your case based on the information provided by you. If the attorney was not able to answer all of your questions it was most like because they did not have all the necessary information. At the end of the free consultation, you should walk-away more education about the California divorce process than you had before the meeting.
Employing a Law Firm versus Hiring a Lawyer
Hiring a law firm can be costly in comparison to hiring a solo practitioner. Most people believe that hiring a firm is necessary because they have a complex case. Remember, it’s not the firm that handles your case but the individual attorney. Under any circumstance, regardless of complexity, an attorney should be addressing all matters surrounding your case. Base your decision on the attorney and not the firm. Although you will be indirectly paying for the “firm’s overhead” you may not get the personal service you should receive when hiring a solo practitioner.
Money Matters
You must consider the money you will be spending. There is little need to hire an attorney if you cannot afford to live. The attorney you interview should give you an idea of the money you could be spending in your case. Take time to carefully consider the impact this may have on your lifestyle.
Limited Scope Agreements
You can enter into a limited scope agreement with your attorney should you have limited funds and want them to address specific matters. Limited scope means the lawyer will not be representing you for any and all aspects of your divorce. As an example, you may hire an attorney to address child custody and nothing else. This is often the case when a client applies for child support through the county – there is no need to have your attorney address this matter.
Divorce Strategy
This is an essential part of getting a divorce in California. You have interviewed attorneys and have now hired one. You must now set your goals and devise a strategy. Every case and client should have a strategy that addresses the client’s particular needs. Devise a strategy that provides for reasonable expectations of the process. Your attorney should lay out specific strategies on how to approach any and all issues, such as:
- Child custody and visitation;
- Child support;
- Spousal support,
- Characterizing community property and separate property;
- Dividing marital assets and debts;
- Applying for attorney fees;
- Applying for fee waivers; and,
- Making offers to settle.
Working with Opposing Party
Neither you or your attorney will be able to control your spouse or your spouse’s attorney’s actions. Try not to let your emotions take over your thinking process. Do not attempt to intimidate your spouse and do not allow yourself to be intimidated by him or her. Neither party or their attorneys will be able to control the backlog that may exist in the family court and with the judge. There is a certain level of dysfunction that unfortunately exists when you decide to get a divorce in California.
Increase Costs
When you’re dealing with a highly unreasonable spouse, it is most likely that your divorce will become an expensive undertaking. When you have an unreasonable spouse it is also common for the divorce to take much longer. Should you encounter this problem, it is time for you and your lawyer to reevaluate your strategy.
Your Parenting Plan (Visitation)
Attempt to meet with the other parent to formulates a reasonable parenting plan that takes into account the child(s) needs; your work schedules; and extracurricular activities.
Temporary Orders
Spouses may need temporary orders which occurs when one spouse files a request for order. Temporary orders are considered by the court to allows for some level of stability to take place while the spouses and their lawyers resolve as many issues as they possibly can. These temporary orders are a necessity and can be done with an agreement. If the parents resolve custody and visitation, they should also resolve child support unless the parents dispute each other’s income. Spousal support on a temporary basis is often based on the same computer program as child support. Thus, once again, unless there is a real dispute about income, there should not be too much litigation on temporary spousal support. Attorney fees are a critical issue if one spouse earns significantly more than the other. The most common types of temporary orders are for:
- Child custody;
- Parenting time;
- Child support;
- Spousal support; and,
- Attorney’s fees.
Exchange of Preliminary Disclosures
The preliminary declaration of disclosure is made up of mandatory information and documents the California Family Code requires each spouse to exchange. The goal of the preliminary declaration of disclosure is for each side to know what assets, debts, income and expenses the other spouse has and what may be characterized as community or separate property. This allows each spouse to have complete and accurate information about the other spouse’s financial condition. Incomplete or inaccurate information can significantly impact settlement discussions and resolution.
Too many spouses do not take disclosures seriously. Well drafted disclosures that are complete and accurate can speed up the entire divorce process. It can also narrow issues and allow spouses and attorneys to settle issues early.
Discovery
Discovery is the formal request for information. Discovery depends in large part on the complexity of the case. The simpler the case, the less discovery needed. The more complex the case and issues, the more discovery is generally required. Discovery can include:
- Formal interrogatories;
- Formal requests to produce documents;
- Written requests for admissions; and,
- Depositions.
The Marriage Settlement Agreement
Settling the divorce can save you time, money and stress and is a critical part of getting a divorce in California. The settlement process gives both spouses the opportunity to dictate what they would like to see happen and how the divorce is to be finalized. As an example, resolving custody and visitation issues take the decision away from the court to decide these matters. Settlement on financial issues gives spouses the power to control their present and future financial needs. Settlement on property and assets gives the spouses the ability to divide what they have worked hard for during the marriage to attain.
Settlement on every issue is not always possible and just because you cannot settle on every issue does not mean that you should not attempt to settle all issues. However, there are times that you cannot separate interconnected issues and settlement of one depends on the other.
Trial
Some or all the issues in a divorce may not be resolved and your case will be set for trial. Once one attorney or a self-represented party files a document called an “at issue memorandum,” the court then sets a trial setting conference. The court sets a trial date at the trial setting conference. Often, a court will also set a mandatory settlement conference before setting the case for trial. This is done to give the spouses one final chance to resolve their issues and to avoid the expense of trial. A court may break up trials and let certain issues go first. The court may do this on its own motion or at a lawyer’s request. A common example of this is date of separation disputes. A date of separation can control many other issues. These include the community versus separate property character of an asset or debt, spousal support issues, and more.
Exchange of Final Declaration of Disclosures
The final declaration of disclosures is a more comprehensive version of the preliminary declaration of disclosure. It has many similarities but it is not identical. The Family Code requires the exchange to take place no later than 45 days prior to the first assigned trial date. A final declaration of disclosure can be waived if the matter settles.
Trial Process
While every spouse hopes to avoid trial and hopes to resolve the issues, trial may be unavoidable in certain divorce cases. The goal of the trial should always be to have the court make rulings consistent with the facts and the law. The law instructs family law judges to make decisions on the case’s merits. Procedural issues can sometimes get in the way of the merits. Trials may be the most expensive part of the divorce process. Whether a case goes to trial is something the spouses should consider carefully. Strategic planning is important.
This concludes our California Divorce Guide. We hope that you have found it helpful.
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For additional information on divorce in California, click on one of the following links:
The Law Offices of Edward Misleh, APC
How to Start Your California Divorce
California Spousal Support Declaration
California Prenuptial Agreement
California Postnuptial Agreement
California Child Custody Modification