Empowering Our Clients By Answering Your Frequently Asked Family Law Questions
Below, we have provided our responses to the questions we are most frequently asked. However, if your question is not addressed, please feel free to contact us at anytime.
What is the difference between dissolution, legal separation and annulment?
The procedure followed to obtain a Judgment for Dissolution of Marriage (divorce) and a Judgment for Legal Separation is, for the most part, identical. In both instances the court will rule on issues such as custody and visitation, child and spousal support and property division. The difference between a Dissolution and a Legal Separation is that a Judgment for Dissolution terminates the marital relationship and a Judgment for Legal Separation does not. After obtaining a Judgment for Legal Separation, even though the issues have all been settled by the Court or by agreement between you and your spouse, you are still married.
Why then would a person petition the court for a Judgment for Legal Separation?
Legal separations are often requested when a party is not sure that the marital bond is irretrievably broken, but nonetheless, wants to resolve issues pertaining to custody, support and property division. Legal separations may be requested for religious reasons. In many cases a legal separation is requested in order to maintain medical insurance coverage in cases where a spouse may not independently qualify for health insurance due to a preexisting condition.
If you or your spouse obtain a Judgment for Legal Separation and then either one of you wants to get married to another person, you must file a Petition for Dissolution and obtain a Judgment for Dissolution.
A Judgment for Annulment is requested when the petitioning party wants the court to find that the marriage never took place. In order to obtain a Judgment for Dissolution or Legal Separation you do not need to show “grounds” or “fault.” However, a party requesting an annulment must “prove” his or her case to the Judge. The responding spouse has the opportunity to contest the annulment. Since a party may not be successful in proving grounds for annulment, it is wise to request a Judgment for Dissolution in the alternative.
Do I need grounds for divorce in the State of California?
The State of California is a “no fault’ state. As such, you do not need grounds for divorce. You will be granted a Judgment for Dissolution by simply stating that “irreconcilable differences” have arisen causing the irremediable breakdown of your marriage.
If one party files for a legal separation and the other party files for a Dissolution, the request for dissolution will be controlling.
How long do I have to live in the State of California before filing for divorce in this state?
In order to file a Petition for Dissolution in California at lease one spouse must have lived in the State of California for six months prior to the filing of the Petition for Dissolution and in the county in which the Petition is filed for at least three months prior to the filing of the Petition.
When can I get remarried? How long will it take for me to get a divorce?
You can get remarried once the court grants a Judgment for Dissolution. Under no circumstances will your Judgment be granted prior to the statutory six month waiting period. The six month period starts running from the date the responding spouse is served with the Summons and Petition for Dissolution.
Please remember that you are not automatically divorced once six months have passed. The court needs to grant a Judgment of Dissolution before you can get remarried. In most cases the parties need more than six months to resolve the issues pertaining to custody, visitation, support and property division.
If you want to get divorced after six months because of tax purposes or because you want to get remarried, ask you attorney to file a Motion for Bifurcation. In this proceeding the court retains jurisdiction or power over all the issues in the marriage, but returns you and your spouse to the status of an unmarried person. This Motion results in a Status Only Judgment.
Do I really need an attorney?
It is always wise to consult with an attorney especially if you have children, if you have been married for more than ten years, if you have real estate or pension plans, if you require spousal support or if you know your spouse will be requesting spousal support.
Your spouse might provide you with a settlement agreement that appears to be an equal division of the assets and debts. Before signing any agreement or Quit-Claim Deeds please speak to an attorney. It is so easy to be fooled or misled. For example, you might not be aware of California property division laws or you might not have factored in certain tax ramifications; assets equal in value might not be equal in their tax consequences. Even with an equal division of debts, you might be leaving yourself open to a third-party creditor claim.
If you are concerned about attorney fees, make sure the attorney you choose is settlement oriented. A competent attorney will not automatically take every case to court. She will first do her best to work with you and your spouse to reach a fair agreement. If you and your spouse have already reached a fair settlement, your attorney might accept the case as an uncontested matter, thereby keeping your legal fees reasonable.
How will my attorney commence the dissolution process?
The dissolution process commences when one party, the Petitioner, files a Summons and a Petition for Dissolution with the Superior Court. A conformed (file-stamped by the court) copy of the Summons and Petition is then served on the other party, the Respondent.
The Respondent can be served by personal service or via Notice and Acknowledgment. In certain rare cases, the court might grant leave to serve via publication.
Once the Petition is filed and served, certain “Automatic Temporary Restraining Orders” immediately take effect. These restraining orders, also known as ATROs, specifically enjoin and restrain each party from removing the children from the State of California, changing or cancelling insurance policies, and from transferring, selling or disposing assets.
What happens after the Petition for Dissolution is filed and served?
After the Petition has been filed and served, the responding spouse has thirty days in which to file and serve a Response.
In some cases the parties reach a complete resolution of all issues, such as custody, visitation, child support, spousal support and property division. In those cases, the attorney prepares a Stipulated Judgment incorporating their agreement, and the matter is concluded.
In cases where the parties do not reach a resolution on all or any of the issues, one or both sides might file a Request For Order (RFO) to obtain certain interim orders.
If children are involved, the attorney usually files what is known as a Request For Order (RFO) so that the court can schedule an early hearing on issues such as custody, support, or restraining orders. If an RFO regarding custody and visitation is filed on your behalf, you must attend court-ordered mediation. Any agreement you and your spouse reach during mediation will be the basis for the court’s order on those issues.
In complex dissolution proceedings the attorneys commence the discovery process in order to collect information regarding assets, debts and income from the other side. In addition to the Declaration of Disclosures, the attorneys might serve the other side with Form Interrogatories or Special Interrogatories and Request for Production of Documents. Depending on the issues, certain experts such as accountants and appraisers might be retained by either side. Once the discovery process is complete, the court will set a trial date.
During trial the court will hear evidence from both sides and make certain findings and orders based on the evidence. The court will confirm separate property and will divide community property by ruling on issues such as accounting practices and commingling. The court will set support after determining cash-flow from businesses or self-employed individuals. The court will determine reimbursement and credit issues along with several other issues, such as attorney’s fees and payment of bills, inherent in most dissolution proceedings.
After trial, one of the attorneys will prepare the Judgment based on the court’s ruling.
What can I do to protect myself prior to filing for dissolution?
The months prior to the filing of dissolution should be used to gather as much information as possible regarding the separate and community assets and debts.
Here are ten tips that you might want to follow:
- Mail—Make a copy of all the mail being sent to your home. Your attorney will be in a stronger position during the discovery process if she has specific names and addresses of insurance companies, bank accounts, credit cards, and loan applications, and investment vehicles
- Family Finances—Make copies of all monthly bank statements, credit card statements, loan documents and property assessments. Review all tax returns that have been filed by you and your spouse. Give a copy of these records to your attorney for safekeeping
- Assets—Prepare a complete listing of all assets in your name, in the name of your spouse and in both your names. Do not forget to include items in your safe deposit box. If possible, take pictures of any jewelry. Make a note as to when each asset was acquired
- Inheritance—Keep all assets acquired as an inheritance separately. Do not commingle an inheritance with other assets. Do not use your inheritance to pay for living expenses or to pay down a debt
- Debts—Prepare a complete list of all liabilities and when they were incurred. Do not make any large purchases and try to keep your assets as liquid as possible
- Estate Planning—Make a copy of all wills, trusts, insurance policies, and any other estate planning documents. Make sure you are involved in any changes to the estate plan
- Business Interests—If your spouse is self-employed make sure you are familiar with financial information regarding the business, including bank accounts, loan applications, corporate tax returns and financial statements
- Compensation and Pension Plan—If your spouse is employed make sure you have copies of paycheck stubs and information regarding pension plans, including plan booklets and contribution statements. In California a pension plan is community property to the extent it was earned during marriage
- Do Not Sign Anything—During this time period, do not sign any deeds or documents that look questionable. Always keep a copy of any document you choose to sign
- Do Not Move Out of the Family Residence—Do not move out without first talking to your attorney
I just found out that my spouse filed for dissolution. Now what do I do to protect myself?
If you have been served with the Petition, please see your attorney immediately. You have thirty days after service to file a Response. If you miss the deadline, your spouse may proceed by default. This means that the court will make decisions regarding custody, visitation, support and property without your input.
Once you have been served, do not sign any documents your spouse may ask you to sign.
Immediately begin to make a record of all community assets and debts. If possible, prepare this list with your spouse. Do not hesitate to make a video tape of all property in the family residence and in storage.
Start taking steps to protect your finances. A vengeful spouse can deplete a community bank account leaving you with no recourse. You can protect yourself by taking out half the balance in the account and opening a bank account in your own name. Write your spouse a letter letting him know what you have done.
If you have children:
(1) Start keeping a journal. Make a note of all time spent with the children or any other information that you feel will be important to your case.
(2) If you can do so safely, make sure you remain in the family residence. Moving out will have a negative impact on custody and visitation issues. If your spouse threatens to harm you, your attorney can request the court to order that you have temporary exclusive use of the family residence.
(3) Do not allow your spouse to take the children away from you for any length of time. When a Petition is first filed and served, there are no orders regarding custody and visitation. As such, your spouse does not have a higher claim to the children than you do. Make sure you spend time with the children and maintain as normal a schedule as possible. Once the case goes to court, the Judge will want to keep the children’s schedule stable, so by spending less time with the children you might be setting a precedent that will be upheld in court.
What can I expect during an initial consultation with the Writer Law Group, PC?
At the Writer Law Group, PC we treat all initial consultations very seriously. We are committed to giving each and every potential client the experience of being valued in the time they spend with us. Upon arrival at our office, you will be met promptly by the attorney who will proceed to spend at least forty-five minutes to an hour with you.
The first question we will ask you is whether or not you have tried counseling to see if you can make your marriage work. If counseling is not an option, we proceed with the consultation.
We will ask you for the date of separation. This is the date either party made the decision to permanently leave the marriage. This date determines the length of the marriage and has numerous ramifications relating to issues of spousal support and property division. We then discuss your unique situation in each of the following areas: child custody, visitation, child support, spousal support and property division. Next, we educate you as to the law governing each of these issues. We also offer creative options, especially in the area of visitation and spousal support. We get you thinking of different ways in which you can “create” your own judgment.
During the second part of the consultation, we discuss our fee structure and retainer agreement. If mediation is an option, we might suggest that the attorney mediate your dissolution for a flat fee. Of course, not all cases are suitable for mediation. Some spouses use the mediation process to delay dissolution or as an inexpensive information gathering process. After almost a decade of family law experience, we can easily recognize such instances.
At the end of the consultation, we will wish you well. We will also invite you to call us if you have any other questions or you would like to retain our office to represent you in court.
What documents will the Writer Law Group, PC request me to provide during my second meeting with the attorney?
Once you have put your trust in us, we begin to work on your case immediately. Regardless of where we are in the dissolution process, we will most likely need the following information:
- Paycheck Stubs—We will need your pay check stubs and your spouse’s paycheck stubs (if you have access to them) for the past three months.
- Tax Returns—We will need the last three years of Federal and State Tax Returns.
- Real Estate Information—We need a listing of real estate you and/or your spouse own. We also need any deeds signed, appraisals received, and any loan applications.
- Personal Property—We need an inventory of all your personal property
- Asset Inventory—We need a listing of all bank accounts, brokerage accounts, savings accounts and stock accounts owned by you and/or your spouse
- Debts—We need a list of all credit card or personal debt
- Insurance Policies—We need a list of all life insurance policies on you or your spouse
- Pensions, Retirement Plans and Investments—Copies of all pensions, retirement plans and investments you and/or your spouse might be involved with, either through employment or other means
- Agreements—A copy of any written agreements you might have entered into with your spouse
- Court Documents—Any pertinent court documents