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Q: How quickly can I be divorced? Q: How do I determine what my share of a specific asset is? Q: Will my case automatically go to trial? Q: What is the difference between divorce and legal separation? Q: Can one attorney represent me and my spouse?
Q: How does the divorce process begin? A: A divorce in California is begun by one party (the "Petitioner") filing a Petition for Dissolution. The next step is to serve the other party (the "Respondent"). This can be done either by personal service having a process server go out and deliver the papers to the Respondent; or it can be done by mailing the papers to the Respondent and having the Respondent sign a form called a Notice and Acknowledgment of Receipt and returning the form to Petitioner or his attorney. It can also be done by having the Respondent come into the office of the Petitioner's attorney and pick up the papers. There is also a procedure for service by publication, but that is seldom used and not necessary to discuss here. Once the Respondent is served the Respondent has 30 days within which to file a responsive pleading, called a "Response" with the court and to serve a copy of that on the Petitioner or the Petitioner's attorney. If the Respondent does not file a response within the 30 days then it is possible for the Petitioner to take what is called Respondent's "default" and to ask the court to enter a judgment because the Respondent has not responded. In practice, in cases where either of the parties is represented by an attorney, this seldom happens, but it is a possibility.
Q: How quickly can I be divorced? A: One area which occasionally causes people involved in a divorce a great deal of confusion is the "six month" rule. Many people assume that they will automatically be divorced six months after the divorce is filed. This is not the case. The six month rule refers to California State Law which provides that a party cannot be single, that is, cannot have the status of his/her marriage terminated, earlier than six months after the date on which the Respondent was served with the Dissolution Petition. The property and support issues could be settled earlier, and the parties could present a judgment to the court for filing and entry prior to the six month time deadline, but the status of the marriage would not terminate until that six month threshold date. Conversely, the parties could go way past the six month time limit and not have the status of the marriage dissolved and not have any of the issues resolved. In rare cases, where there is a valid reason, the parties may "bifurcate" the status of the marriage, which means that the parties would be single before the property, custody, support, etc. issues were determined. This is done only where there is a good reason and it involves the party requesting the bifurcation providing the other party with indemnification from damage or injury resulting from that early bifurcation. Some examples of areas where indemnification would apply are pension rights, health insurance rights, and probate areas. If this becomes an issue we can discuss this and elaborate more fully on it.
Q: I think my spouse has income and assets that I am unaware of, how do I find out what he/she really has? A: Each party has the right to get information from the other party on such things as the other party's income and earnings, the value of property owned by the parties, the other party's living arrangements, etc. This process is called "discovery" and information is obtained by various means, including formal demands for production of records (Inspection Demands); formal requests for written answers to specific questions (Interrogatories); and formal requests for oral testimony given prior to trial (Deposition). Some of these items may seem very obvious, but when parties divorce, very often situations change and it is sometimes necessary to obtain information from the other party on such things as bank accounts, property owned by either of the parties, inheritances, etc. The list is endless. The fact that the parties were married to each other does not always mean that each party knows everything about the other party and the other party's finances. It is essential in a dissolution proceeding that before any marital settlement agreement is entered into or the parties go to trial that each party know as much as can be ascertained about the other party.
Q: How do I determine what my share of a specific asset is? A: Contemporaneously with the discovery procedure either side may feel it necessary to do some work on determining what an asset of the community is worth. An example of this would be the family residence, to decide how much the family residence is worth, particularly in a case where one party wants to purchase the other party's interest. In that case it would be necessary to obtain either an appraisal from a qualified appraiser, or possibly an evaluation from a realtor. Other examples of this would be evaluation of a business or an interest in a business owned by one or the other of the parties, or an actuarial evaluation of one party's interest in a pension plan or other type of deferred compensation plan. These issues are not always as straight-forward as they may seem, and very often there is a great deal of value in an asset over and above what it may appear on the surface.
Q: Will my case automatically go to trial? A: No. Once each side has obtained as much information as they feel they can obtain or need to obtain from the other side, the next step is to set the case for trial, or to begin settlement negotiations. Either side may send the other side a settlement proposal that the other side can accept or reject, or send a counter proposal. If it appears that settlement negotiations are not going to resolve anything then the alternative is a set the case for trial, which will give the parties a trial date some months away and provide an incentive for both sides to try to settle the matter. Obviously, settlement without trial is considerably more economical in terms of attorney's fees and costs but it is sometimes the only way to go if one side is being obstinate and will not settle. Once a trial date has been obtained from the court, then it sets in motion a procedure required by the local courts: the first step is to have a four-way meeting between the parties and their counsel, face to face, at which the agreed and contested issues are decided upon. This also gives the parties an opportunity to engage in some settlement negotiations to see if at least some of the issues can be resolved. If all of the issues are not resolved then the next step is for each side to file a Settlement Conference Statement with the court, outlining for the court the resolved issues and the disputed issues. The next step here is for the parties to attend a mandatory Settlement Conference at the courthouse. This involves both counsel meeting with the judge in chambers and discussing the merits of the case. It gives an opportunity for the judge to give an opinion on what he would be likely to do if the parties were to go to trial, and provides incentive for the parties to settle without the added expense of going to trial. The attorneys have the opportunity to discuss with their respective clients what the judge has said in chambers, and what is likely to happen if they in fact proceed to trial. If the parties are unable to settle at settlement conference (the majority of cases settle before trial) then the last stage obviously is to go to a contested trial. This will entail considerable preparation of additional pleadings, including trial briefs, bringing in witnesses, etc. It is an expensive process, and one which we always try to avoid, but which is sometimes a necessity when there is no other way to resolve the issues.
Q: What is the difference between divorce and legal separation? A: A legal separation allows the court to determine marital rights and responsibilities without dissolving the marriage. Legal separation is generally sought when there has been a breakdown in the marriage, but for religious or other personal reasons, both parties do not want their martial relationship completely severed. Additionally, parties may seek a legal separation when dissolution would mean a termination of health insurance for one party who has a pre-existing medical condition. In certain situations, it is possible to legally separate, but to maintain a legally separated spouse as a dependent on a health insurance policy.
Q: Can one attorney represent me and my spouse? A: No. It is unethical and a violation of the California Business and Professions Code for an attorney to represent both spouses. However, parties may choose to jointly hire a mediator who can assist the parties in reaching an agreement. Mediators will not issue orders, their role is simply to oversee the parties' own negotiations. If the mediation is not successful, then the parties return to the litigation arena. |
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