Category: Divorce Procedure
Questions/Answers
What are the Statutory Residence Prerequisites for a Divorce in California?
At least one of the spouses must have been a resident of California for at least six (6) months prior to filing the Petition for Dissolution, and a resident of the particular County where the action is to be filed, for at least three (3) months prior to the filing. [California Family Code, §2320.] These requirements apply only to divorces, or dissolution of marriage, as there is no residency requirement for Annulments or Legal Separations. If neither spouse presently satisfies the statutory residency requirements, but want to pursue a divorce without delay, they have the option of filing for a Legal Separation, and then amending the Petition or Response, to request a divorce once the residency requirements are met. See California Family Code, §2321(a).
What are non-litigious ways to manage my divorce?
1. Kitchen table model: Negotiate without professionals, reach agreements using “cookbook forms” available in books and on the internet. A lawyer may go over the agreements, determine if anything further needs to be decided and aids in formalizing their agreements. 2. Mediation: Use a neutral, third party mediator (attorney, mental health professional (MHP) or trained mediator), expert in managing power to help facilitate an agreement and skills in conflict resolution. Two attorneys may act as mediators for the divorcing spouses. 3. Collaborative Divorce: Couples work as a team with MHPs, lawyers and financial advisors to resolve disputes respectfully, without going to court. It treats the process as a way to trouble shoot and problem solve rather than to fight and win. The goal is a win/win situation for all.
Does the divorce process move faster with attorneys?
The logistics of one spouse meeting with his or her attorney, and then waiting for the other spouse to meet with his or her attorney to review appraisal and come back with any changes are overwhelming and time consuming at best. Compare this situation with both spouses sitting down together with a mediator, problem solving, negotiating and leaving a mediation session with something accomplished. In general, mediation is a faster, more efficient process than litigation.
What is "discovery" in a divorce case?
Discovery in a divorce trial is the taking of the "deposition," or sworn statement, of you and your spouse. It is also the time to produce records of your finances and possessions and any statements by others that may bear upon the outcome of your divorce, such as a social worker, mental health therapist, doctor, etc. Discovery takes as long as necessary, which in more complicated cases can be many months. Hiding something, such as a bank account or other assets, will only serve to prolong the pre-trial process, increase expenses, promote ill will, and could possibly result in sanctions against you by the judge. Don’t risk it. Your best course is complete honesty and forthrightness.
What if my spouse does not respond to my divorce petition?
Your spouse is not required to respond to the petition. If he or she does not respond, you will receive a "divorce by default." It’s a little like winning your divorce because your spouse is acknowledging that he or she does not care of the outcome and forfeits his or her rights. Many times divorce complaints or petitions are not answered because the divorce is essentially uncontested and based on no-fault grounds (the respondent agrees to the terms in the petition). Some times petitions are not answered because the spouse being sued has disappeared or deserted the petitioning spouse.
What happens after I file the petition for divorce?
Basically, you’ve started all civil lawsuit. You are suing your spouse for a divorce. The defendant, your spouse, must be "served," that is, notified of the lawsuit. A process server could deliver the notice with a copy of the petition, or your spouse could "waive service," which means that he or she has signed a paper saying that service is not necessary, since your spouse already knows of the divorce action.
How can I get a divorce if I do not know where my spouse is?
If you are unable to locate your spouse, you can file a notice in a newspaper that you believe that he or she is likely to read, such as your hometown paper, or a large regional paper. The notice will state that you have filed for divorce and that he or she has certain legal rights and requirements, such as answering your "complaint/petition" (your suit for divorce). If he or she does not respond to this notice within a time set by state law, you will be granted a "divorce by default." This is known as a divorce by publication. The only way you can qualify for this type of divorce is if you can provide ample proof that you have tried to locate your spouse by other means than just the publication.
What is a "contested" divorce?
If you and your spouse are unable to agree on certain issues in your divorce agreement, you will have to settle it through other means. When you and your spouse cannot agree a divorce becomes contested. It is at this point that legal representation by a qualified lawyer is the wisest choice. The more contested issues you have the more drawn out the divorce will be, which typically translates into more emotional pain and a greater financial burden. A fully contested divorce is decided by the court.
What is an "uncontested" divorce?
An uncontested divorce is probably the easiest, fastest and most simplistic divorce, in that it less of a financial burden and easier on your emotions. In an uncontested divorce you and your wife sit down and work out an agreement that is fair for both of you. You, if you are the "petitioning spouse" (the one asking for the divorce) then file the agreement and other paperwork with the court, make a brief court appearance, and then your divorce is granted.
What is the difference between a divorce and dissolution?
Essentially, they are both the same. Certain states have adopted the term "dissolution” rather than the more common term "divorce” when referring to the breakdown of a marriage. California says "Dissolution of Marriage” while Pennsylvania says "Divorce”. It is argued the "Dissolution of Marriage” is much more descriptive which is why some states prefer it.
What is evidence?
The word "evidence" means something different to lawyers than it does to non-lawyers (also known as "laypeople"). Evidence to a lawyer is "the documentary or oral statements and the material objects admissible as testimony in a court of law." Evidence is something that will prove or disprove the existence of an alleged fact. Evidence can also be the collected items – such as testimony, physical objects, statements – that are introduced in court that might prove or disprove the fact that is contended.
Why does the Judge scrutinize the agreement?
Judges want to make certain the agreement is not the result of overreaching, fraud, or duress and is not a one sided contract that says "here are my terms, take it or leave it." Since a settlement agreement can contain issues of child support and child custody, the court is required to peruse and uphold what is best for the child(ren). The judge will do whatever he or she can in order to have the settlement agreement mutually fair for both spouses. Since you have gone though mediation, this should be well taken care of already. When there are children involved you will find that the judge will pay extra attention to issues like, custody, visitation and child support, because the children can be very vulnerable during separation and/or divorce.
Helpful Tips and Facts
Divorce by Mediation
In Florida, couples can participate in the mediation process and obtain a divorce without attorneys (a pro se divorce). A mediator helps the divorcing couples who does not have attorneys settle such issues as child custody, visitation, calculation of child support, alimony, and the division of marital assets, and debts. Generally, this process requires 2 to 4 sessions with a mediator. Each session is approximately 2 hours long. Other issues including alimony, parenting plans, and child support are also resolved. The mediator assists clients in preparing all the documents necessary to obtain a divorce in court. This process does not require either party to pay large retainer fees and many mediators offer a free consultations. Overall, divorce by mediation is a great and inexpensive way to obtain a divorce in Florida.
The Marriage Dissolution Act
The Marriage Dissolution Act permits the dissolution of a marriage if the marriage is irretrievably broken or one spouse is mentally incapacitated. A marriage is found to be “irretrievably broken” when the marital relationship has already virtually ended, there is no hope for reconciliation, and it is in the parties’ best interests that their marriage be dissolved. However, the parties are not required to live apart before seeking a marital dissolution.
The Uncontested Advantage
Often times your spouse will refuse to sign a divorce petition when it is first presented to him or her. Allow your spouse a few days to cool down if this has happened. Since an uncontested divorce can save you and your spouse a lot of time, money, and headache, try and explain that to your spouse. If you convey that quickly processing the divorce by reaching an agreement will save both of you upwards of thousands of dollars in attorney’s fees, you can hopefully convince him or her to sign. But remember, the petition does need to be reasonable. Good Luck with your divorce.
Basics of An Uncontested Divorce
Here are the basics of an uncontested divorce: both the husband and wife agree to the divorce, both agree to the division of property and debts, and both agree on custody of the children.
Summary (Simplified Divorce)
For couples who have been married a short time and have few financial entanglements, a summary (simplified) procedure is the easiest route to an uncontested divorce. The summary procedure works particularly well for a childless marriage, where both parties agree to waive spousal support, and the couple own neither a marital home nor have significant assets or liabilities.
Stalling a Divorce
The spouse who may not want to divorce cannot simply stonewall his or her partner. A lack of cooperation will not stop a divorce. One spouse can divorce the other without his or her consent.
Leverage Used by Not Wanting the Divorce
In most divorces, one spouse wants out and one does not. The person who wants to leave may be way ahead of the person who does not see the breakup coming. The person who is left may try to stall, but as the divorce progresses, he or she moves toward the point where both spouses understand the marriage is over.
Starting Your Divorce on Right Foot
Many divorcing couples get off to a bad start by not acting in good faith in dealings with their former spouses. Most people can tell when someone is acting in good faith or bad faith.
Knowing the Law and Applicable Factors
Before going to trial, it is a good idea to ask a lawyer for guidance about both mandatory and discretionary factors that may affect child support, alimony and property distribution. Reading the statute is not enough because sometime the way the law reads to a lay persons and its application are very different.
Power of Attorney and Divorce
Powers of attorney must be rewritten after a divorce.
Setting the Separation Date
Some couples memorialize the date of separation with a short agreement stipulating the date each spouse took up a separate residence.
Ten Divorce Tips Not to Forget
As part of a divorce (or its follow up), here are 10 must-do steps: 1. Read the decree and correct any mistakes. 2. Get certified copies of the divorce order. 3. Make new deed for real estate. 4. Transfer the titles of cars. 5. Update insurance coverage. 6. Update beneficiary designations and W-4 withholding. 7. Protect retirement rights. 8. Rewrite wills and trusts. 9. Confirm the separation of bank and credit accounts. 10. Follow through on name change.
A Default Divorce
Default divorces sometimes happen when couples marry then physically drift apart. Sometimes couples marry on an impulse, then go their separate ways and it does matter much until one of them wants to marry again. Courts do require that a person seeking a default divorce makes a good faith effort to locate the missing partner. A sincere effort means an complete effort at finding the person, including an Internet search.
Appearances in Divorce or Familiy Law Court
A good appearance and an appropriate manner costs nothing and may work to a person’s advantage in court. Always remember, judges are only human.
Requesting a Continuance
A continuance may be requested by either side, but may not be granted by the court if the request is not substantiated with proper reasoning. Continuances are not available upon request or as needed, and abuse of requesting continuances will not go unnoticed by the judge. If you are a pro se filer and find yourself unprepared in a hearing, it does not hurt to ask the court the judge for a continuance. This may be your best option, but should only be exercised if absolutely necessary.
Divorce Revenge - Don’t Shoot Yourself in the Foot
Some divorcing couples use litigation as a way of punishing an estranged partner. In the end, these people discover they have shot themselves in the foot -- emotionally and financially. Using litigation as a form of revenge is often very transparent to the court.
Constructive Service and Divorce by Publication
Before paying the money to the newspaper to provide constructive service in a divorce by publication, make sure you and/or your lawyer have exhausted all required measures to locate your missing spouse. Proof of these efforts along with the constructive service will be required by the court before the divorce will be granted. The bottom line is, courts do not like to allow people to get a divorce without his or her spouse knowing it.
But Judge... I Did Not Know!
In divorce, as with any area of law, the explanation of "not knowing" is no defense. Ignorance of the law is often what gets people in trouble in the first place. This is one of the primary reasons to hire a divorce lawyer, especially if your case is contested. A divorce lawyer is a trained professional in understanding the area of family law, which is a must to have a successful divorce.
Signing and Filing a Waiver of Consent and Appearance
Since the purpose of this type of document is to consent to a filed Petition or Complaint for Divorce, it must be signed and filed after the Petition or Complaint is filed. If it is filed at the same time you risk having your case dismissed.
A Judge is Not a Therapist
Judges are not therapists. The conclusions of law do not allow for human emotion. After the intervention of the court, the pain and sadness of divorce are still there.
Common Law Marriage in The States
Fifteen states still recognize common law marriages in some form. They are Alabama, Colorado, Georgia (if created before 1/1/97), Idaho (if created before 1/1/97), Kansas, Montana, New Hampshire (for inheritance only), Ohio (if created before 10/10/90), Pennsylvania (before 2004), Rhode Island, South Carolina, Texas and Utah and the District of Columbia. Couples who reside in these states and who present themselves to the world as married -- filing joint tax returns, using the same last name, calling each other husband and wife -- must divorce to legally end their marriages.
Commiting Perjury By Signing a Petition or Complaint
Fair warning. If you are stating something in the petition or complaint that you know is not true, and you sign it and submit it to the court, you are committing perjury which carries a significant punishment. People get themselves in trouble with this when they are deceiving the court with false residency, time of residency, and separate dates.
Serving Your Spouse
Once you or your lawyer files the initial paperwork (the petition or complaint), a copy must be served to your spouse (unless service has been waived). This is done, so the court knows the opposing party is aware of the divorce. Once the opposing party is formally served, he or she will have a set number of days (20-30 depending on the state) to file an answer or response to the petition or complaint. If the opposing party doe not file an answer or response, then the case will proceed by default without his or her participation.
Arrest Warrant - Do Not Take it Lightly
An arrest warrant is not something to take lightly. Ignoring the notice and believing time will make it go away is a foolish approach. A warrant may be out for a person and the sheriff, if backed up, may take six months to take custody. Also, the longer the warrant is out, the worst it looks to the judge.
Entering into a Bifurcated Divorce
In order to enter a divorce decree or judgment before resolving the financial aspects of a marriage requires a bifurcation of the two issues. For this to take place, one party must provide a compelling reason to the court for the bifurcation. In order to assure that one’s interests are being adequately protected one should always have proper legal representation in this type of situation. There may be certain repercussions that are often unforeseeable in a bifurcated divorce, which are more visible to the seasoned family law professional.
Providing Proof in a Divorce Case
The standard for burden of proof in a divorce case is not as high as "beyond a reasonable doubt" (which is used in criminal cases - jury trials for example). A family court judge will base all decisions on more of a reasonable belief that an action or event has occurred. Do not be mislead by this in believing that "he said...she said..." will have weight in the family court system, because judges have heard it all. Rather, present your allegations and support them with as much evidence as possible to make your case.
Bribing the Bailiff
Attempting to bribe the Judge or the Bailiff will only get you jail time.
Divorce is a Deal
Divorce is a business deal with three salient considerations. They are: 1. The allocation of assets and liabilities. 2. Spousal support, if any. 3. Custody and support of children, if any.
Waiving Court Appearance
In an uncontested divorce, the Respondent or Defendant often times will sign a Waiver of Appearance document, thus permitting the court to proceed with the hearing and finalizing the divorce without his or her attendance at the final hearing.
I Hope My Spouse Does Not Respond
If you have an uncooperative spouse, the best thing that could happen, is he or she does not respond to your Summons and Petition or Complaint. Believe it or not, many spouses that are making a divorce very difficult, will drop the ball when it comes to actually hiring a divorce lawyer to represent them.
Valid Reasons for an Appeal
Most successful appeals are filed on the basis that not all of the assets and values of those assets were disclosed at the time of the divorce. This being said, if a spouse was hiding assets or deliberately misleading the court as to the values of assets, a property distribution award may be reversed through appeal.
Filing an Appeal
"I lost and I want to appeal!!!" will not get you anywhere. Beware of divorce lawyers who are encouraging an appeal. Divorce appeals are rare and are often just another way for a lawyer to generate some legal fees. You will pay the fee to prepare and file an appeal, only to have it rejected without even a hearing taking place to present your case.
Responding Within the Time Period
If you are served with a Summons and a copy of the Petition or Complaint, you, as the Respondent or Defendant, must respond within a set period of time (typically 20-30 days depending on the state). If you do not file a formal Answer or Response, the case will proceed by default, and the Petitioner’s or Plaintiff’s requests to the court will be granted at a default hearing. If you are late in responding and desire to do so, there is typically a grace period, but do not rely on this grace period if you do not have to.
Filing an Answer or Response
Many Pro Se filers try to submit the formal Answer at the same time as the Petition or Complaint. This is a common error, because they do not realize that one is a response to the other. Filing them at the same time does not make sense in regards to proper court procedure.
He Said...She Said
The judges have heard it all. Don’t get caught in the trap of placing blame about every little aspect of your fallen marriage. Choose your battles wisely and go to court with evidence to back up what you are alleging.
Appealing Your Divorce
In order in appeal a divorce, as with any appeal, it must be reviewed to see whether or no an appeal is even a consideration of the court. You cannot appeal a ruling just because you did not like it; instead you must have a legitimate claim which leads the appellate court to believe that an overruling in the decision and ruling is possible.
Depositions Vs. Affidavits
Some states do not permit Affidavits under certain circumstances and require actual depositions to be taken. The court house will often offer these services or a local recorder service would be available. They will take an oral testimony and provide a written record for the court (which is essentially the same as an affidavit and serves the same purpose).
Affidavit of Consent
The date on the Affidavit of Consent should always be a date after the filing of the Petition or Compliant, because this is actually an answer or appearance to the filed Petition or Complaint.
The Road Less Costly
Litigation is expensive, enervating and exhaustive. If at all possible, a couple is always better working out the terms of divorce rather than going to court and having a judge decide.
A Contested Divorce
A contested divorce usually ruins any chance of a civil relationship in the future. A contested divorce is the only form of litigation where the adversaries have once made love to each other during happier times.
Making a Case Backed With Evidence
It is very frustrating for a divorce client when a divorce lawyer will not present a case because there is a lack of evidence. Making a claim (like abuse, adultery, or dissipation of assets) without the evidence to back it up can be more damaging to a case than good.
A Judge is Not King Solomon
In the arena of divorce, an experienced judge has heard everything before. Many years ago, a veteran Pennsylvania judge, commenting on things he had heard in testimony in divorce actions, referred to divorce court as "liar’s club."
The Filing Spouse
The spouse filing for divorce will be the Petitioner or the Plaintiff in the divorce matter. Initiating the divorce or dissolution of marriage may play a significant role in a contested divorce, but in an uncontested divorce it is typically irrelevant.
Consult Family Law Attorney
It is best to consult a family law attorney before abandoning the marital residence. There may legal ramifications of taking such action without proper preparation and understanding of the possible repercussions.