DIVORCE OVERVIEW: How Does the Divorce Process Work?

Grounds For Divorce in California

Divorce Overview - California offers no fault divorceCalifornia was the first state – in the nation to implement the concept of “no-fault divorce.” This means that neither spouse has to accuse the other of having marital misconduct such as extramarital affairs. If one spouse simply claims that the marriage is no longer acceptable or viable do to “irreconcilable differences,” the couple can get a divorce.

The one other, less-used, only acceptable grounds for divorce in California is “incurable insanity” which requires medical proof that one spouse was insane when the petition was filed-and remains incurably going forward. Frankly, even if the other spouse is insane, choose “irreconcilable differences” just because that’s all you need to say, without the expense and burden of doctors and expert witnesses.


DIVORCE OVERVIEW: The Process / The Steps

Rules Each Spouse Must Follow During Divorce Process

(1) – Neither spouse is allowed to take your minor children out of state without the other spouse’s express written permission — or your attorney can help you request a court order.
(2) – Neither spouse is allowed to cancel or change the beneficiaries on your insurance policies or transfer property during the divorce process.
(3) – Neither spouse is allowed to drain the checking or savings accounts, not even conduct any “out-of-the-ordinary” spending during the divorce process.. If you do, you may be accountable to the court later.

These restrictions on behavior are spelled out on the reverse side of the divorce Summons.
Scroll down to page 2 on this actual California Family Law form FL-110:

California Family Law Form FL-110
Actual Family Law Restraining Orders of FORM FL-110:

STANDARD FAMILY LAW RESTRAINING ORDERS

Starting immediately, you and your spouse or domestic partner are restrained from:

  1. removing the minor children of the parties from the state or applying for a new or replacement passport for those minor children without the prior written consent of the other party or an order of the court;
  2. cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage, including life, health, automobile, and disability; held for the benefit of the parties or their minor children;
  3. transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life; and
  4. creating a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the disposition of property subject to the transfer, without the written consent of the other party or an order of the court. Before revocation of a nonprobate transfer can take effect or a right of survivorship to property can be eliminated, notice of the change must be filed and served on the other party.

You must notify each other of any proposed extraordinary expenditures at least five business days prior to incurring these extraordinary expenditures and account to the court for all extraordinary expenditures made after these restraining orders are effective. However, you may use community property yo pay an attorney to help you or to pay court costs.


Annulment or Legal Separation Instead of a Divorce?

First, the 6-month waiting period doesn’t apply for an Annulment or a Legal Separation. Nor do the other 2 requirements: you DO NOT have to live in California for six months or your county for three months before filing.

Annulment: An annulment (or “nullity of marriage” or “nullity of domestic partnership”) is when the court rules your marriage or domestic partnership is NOT legally valid. After an annulment, it is like your marriage or domestic partnership never happened because it was never legal.  MORE…

Legal Separation: You may have religious objections to becoming divorced, but choose to live apart and do a division of property, work out child support, spousal support and child custody / visitation arrangements — SHORT of an actual divorce. It may be that one spouse has terrific health insurance that the other spouse can only access if they are a married couple. Sometimes, if your are extremely affluent or wealthy, there are tax reasons for choosing a legal separation instead of a marital dissolution.  MORE…


How Does a Spouse or Domestic Partner File for Divorce?

In California, one spouse or domestic partner initiates the divorce – dissolution of marriage (or registered domestic partnership) by filing a Petition. The respondent will then be “served” which means officially delivered to your spouse by someone other than yourself who is over the age of 18 the Petition and Summons including a blank Response form to the other party. The Petition and Summons by means of “service of process” legally notifies your spouse that you are filing for a divorce and that he or she has 30-days in which to file the Response. The pro-active party who begins the process by filing the Petition is referred to as the “Petitioner” and the other party is referred to as the “Respondent”.

The Respondent has 30-days following receipt of the Petition —unless granted additional time by the Petitioner’s attorney— in which to answer by filing his or her responding paperwork to the court.


After You File for Divorce — THE DIVORCE PROCESS

After you file for divorce, all or some number of the following steps – must be addressed depending upon the complexity of your marriage, your real estate and personal property, minor children, and your ability as a parting couple to agree on key issues:

PRELIMINARY DECLARATION OF DISCLOSURE: Each party is required to exchange financial documents that show what they own and owe which is essentially a list of income, expenses, assets and debts.

DISCLOSURE AND DISCOVERY: As your attorney, we will do the final preparation if your “declaration of disclosure” (the list of income, expenses, assets and debts) which we will distill down into: (1) a Schedule of Assets and Debts, (2) an Income and Expense Declaration, and (3) disclosure of any other financial issues that would be material to the case. These are then “officially” shared with the other party.

TEMPORARY MOTIONS – TEMPORARY ORDERS: During the process of the divorce case, either spouse may file a Request for Order (RFO) which is a request a “Show Cause Hearing” either spouse can ask a judge to issue “temporary orders” regarding critical issues that would access and then settle any temporary child custody, visitation, spousal and/or child support, requests for attorney fees or even decide and reconcile restraining order disputes during the time of the divorce process.

WRITTEN AGREEMENT: As your lawyer, we will work with you in resolving the issues set forth in the petition and response. In a “contested divorce,” typically each spouse and their lawyer will work out their initial written agreements and then compare and negotiate those issues where agreement can be reached. If both spouses reach an agreement, a court appearance may not be necessary and a judgment could be entered based upon your negotiated written agreement. That written agreement will be submitted with an attached sworn statement to the court saying that the marriage is ending because of “irreconcilable differences.”

COURT APPEARANCE – TRIAL: If you and your spouse are unable to reach an solid agreement and their are some issues that cannot be resolved, you and your spouse will appear in family court for a trial in which a judge will make the decisions on your behalf. Along the way to the court visit, mediation, arbitration might be necessary as will a pre-court settlement conference .

DEFAULT JUDGMENT: If your spouse does not file a Response in the 30-day period following service of the Petition and Summons, you may request a default and proceed to a default hearing to obtain a judgment. We will be in a position where we can ask the court to enter a judgment in alignment with most, if not all of your requests that you first outlined in your petition. In other words, by default, the judgement is pretty much everything you want, unless there is some obvious “taking advantage” of the other party where the judge will want to protect their interests, though they choose to be passive and not participate.

JUDGMENT: The court does not simply end your marriage when the six month have passed from serving your spouse. Following the acceptance of the written agreement (and parenting plan, if minor children), a judgment can be entered. You are not legally single, nor can you legally remarry until BOTH the six months have passed AND you obtain a judgment.


More about Disclosure and Discovery

Sometimes one spouse is more the breadwinner; may own a business; or may have many financial dealings that are opaque and unclear to the other spouse. The problem then becomes what –EXACTLY– is the family financial position? Are the financial documents, as submitted, really accurate, or is the spouse hiding cash, property, resources income, or income sources? How can we help you get the real picture? How can we get REAL financial information about your property and finances from the other party?

There are several legal options available to us, for example:

  • We can Take a Deposition – where we will interview your spouse and any other parties necessary under oath.
  • We can Submit Interrogatories – which are written questions, to your spouse and any other parties.
  • We can Submit an Inspection Demand – which is a request that your spouse turn over certain critical documents.
  • We can Subpoena – a bank, stock brokerage, CPA, employer to request critical information from others.

The Property Division Process

PROPERTY DIVISION: California divorce law requires property to be determined and classified as either community property or separate property.

COMMUNITY PROPERTY – Any property that you and your spouse acquired through labor or skill during the marriage is probably community property. If one spouse has an interest in a business, has a profit-sharing plan, or other retirement benefits that is community property. Each spouse owns half of the community property. Contrary to some peoples understanding, even if just the main bread winner worked outside of the home during the marriage, their salary and benefits are community property.

Conversely, with few exceptions, debts incurred by one or the other spouses —during the marriage— are similarly classified as community debts. If there is significant credit card debt in just one spouse’s name, the debt is community debt. About the only common exception is are student loans which are considered separate property debts.

The law states that community property assets and debts shall be equally divided —unless— you and your spouse agree to an unequal division that can be hammered out in a “give and take” negotiation that results in a written agreement. As for debts that you divide, it is good to remember that if one spouse fails to pay a community debt, you may be on the gook, legally, to pay the creditor. These are the multitude of pitfalls that an experienced divorce lawyer will advise you about and, wherever possible, protect you from.

Because Property Division of real estate and personal possessions (and debts owed) is so complex, you really owe it to yourself to have competent legal help before mindlessly agreeing or signing any property division agreements that are both legal and binding.

In the case that you might have already signed away your rights – to certain real estate and personal property before visiting our website, call us for an appointment to review your situation to learn if you are bound by the agreement.

What if we can’t agree on the SPLIT of Community Property? – If you and your spouse are unable to agree on some divisions of your personal property and debts, a judge will make the decision for the two of you. The judges will attempt to makes some fair allocation of the undecided property and may come up with creative divisions that you’d not like. It is always best to attempt a resolution where a 3rd party does not have to intervene.

SEPARATE PROPERTY – Separate property is property that was acquired before your marriage and include proceeds, profits, or rents received from these separate properties. In addition, any property received after the date of your separation will be your separate earnings.

Inheritances – any inheritances that were received either before or during the marriage; and gifts to you alone, not gifts to you and your spouse are considered separate property.

Separate property is not divided – during the dissolution of a marriage or domestic partnership.

Problems identifying separate property occur – because so many couples will mix their separate property with community property. By law, the “community” that is the couple, often acquires a community interest in otherwise separate property. That said, you may be fully-entitled to receive your separate property back even if it has been mixed in some general sense. Because there are complex tracing requirements when separate property has been mixed into community property, an experienced attorney will often times earn their entire legal fee just for unravelling and separating valuable separate personal property from a “community property claim.” Similarly, and debts that were incurred before your marriage or after your separation are considered your separate debt; so go easy on the credit cards after your separation.


The Divorce Process When You Hire Us

When you hire us, we do most of the work – and remove from your shoulders much of the stress and anxiety. The divorce process has many issues to be addressed and can take some time to accomplish. We see the process through from start to finish. We keep you apprised what’s going on and will be at your side when negotiating agreements and at court appearances. If the idea of attending court is unnerving, we can make court appearances on your behalf unless there is an unusual situation where the judge will insist on you being there. Our overall goal is to help our clients achieve the best possible settlement that protects your short and long term interests while keeping your costs as low as possible.

Nemiroff & Cohen – Protecting Your Rights – Reducing Your Stress!

To resolve all of these complex issues that are part of the divorce process, you need a qualified and experienced divorce lawyer on your side. Lauren Nemiroff and Gail Cohen are both Board-Certified Family Law Specialists with the experience that makes a difference for our clients. We have helped literally thousands of people in the San Fernando Valley successfully emerge from a divorce, even when the process appeared overwhelming at first. Divorce will not always be easy, but with us on your side, you’ll have the support you need to be confident going forward.

Schedule an Appointment with a Certified Family Law Specialist Today

Call Nemiroff & Cohen, LLP at (818) 901-8900 or contact us online to schedule an appointment with a caring and experienced family law attorney.


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