Articles Posted in Divorce

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The term “Legal Separation” and “Dissolution” are distinctly different in that a legal separation does not result in dissolving the marriage itself, while a dissolution of marriage does indeed dissolve the marriage and will return the parties to their single status. There are several reasons why a spouse may want to file a petition for legal separation rather than a petition for dissolution of marriage. Some common reasons are because of the person’s religious background, an interest to maintain certain healthcare benefits, or perhaps because the parties do not qualify to file for divorce because they have not met the residency requirement (there is no residency requirement to file a petition for legal separation in California).

Information about the Divorce Process.

If you initially filed for a legal separation for one of the reasons listed above or for any other reason, but you decide that would prefer a divorce, then you will need to convert your case into one for divorce. In California, you are able to convert your legal separation to a divorce at any point during the legal process, even after your legal separation is final. Either spouse can be the one to request that the legal separation be converted into a dissolution of marriage.If a judgment of legal separation has not yet been obtained (meaning that you have filed your petition for legal separation but the proceedings are still pending) and your spouse has not yet responded to your petition, then so long as the residency requirement is met, you (the Petitioner) can simply file an amended petition and check the box for “Dissolution of Marriage”. Your spouse will need to be served again with the amended Petition. However, if a judgment of legal separation has not yet been obtained but your spouse has already filed his or her Response to your original Petition for Legal Separation, then you may need to request approval from the Court.

If a judgment of legal separation has already been obtained from the court and you later decide that you would prefer a divorce, then you cannot just file an amended petition. Instead, you will need to start over with a new case by filing a petition for dissolution of marriage and pay the filing fee again.

Regardless of the status of the petition for legal separation, either spouse can petition the Court for dissolution of marriage. Because of this, it is typically better to simply petition for dissolution of marriage from the get-go unless both parties agree to the legal separation or a legal separation would benefit one or both parties. Also, it is important to keep in mind that the six month waiting period to be returned to single status does not start ticking until the Petition for Dissolution of Marriage has been served on the Respondent, despite the status of the petition for legal separation.
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It is not uncommon for spouses who have filed for divorce to question their decision to end the marriage multiple times throughout the process. Getting a divorce is life-changing for both spouses. Sometimes, after one or both parties realize the implications of divorce, they begin to reconsider whether their differences are really “irreconcilable”. If you have filed for divorce, but would like to take a step back from the proceeding to reassess your decision, there are a few options to consider.

Reconciliation: If you and your spouse have made the decision to reconcile and no longer wish to pursue a divorce, you may dismiss your divorce petition. Once you dismiss your divorce case your proceeding will end, but neither side will receive a refund of any fees or costs expended pursuing a divorce. This is an important consideration because if the divorce petition is dismissed, but you later decide to re-file for divorce, both parties will have to pay their respective $435.00 filing fees just to file their initial paperwork.

Legal Separation: If you are not ready to obtain a divorce, but also are not interested in reconciliation, you have the option to convert your divorce petition into a petition for legal separation. Through the legal separation process, the parties can obtain similar orders as through the divorce process such as support orders, custody and visitation orders and property division orders. After making a request for legal separation, the court will continue to track your case setting status conferences and encouraging you and your spouse move through the system. If you change your mind later, you also have the option to revert back to the divorce process and terminate your marital status.Suspend the Proceedings: While parties are attempting to decide whether to continue with the divorce or legal separation process, they have the option to suspend the divorce process through agreement. The parties or their attorneys can prepare a stipulation and order that is filed with the court that will put the entire case on hold. Divorce litigants are not be required to fulfill deadlines and make court appearances while their divorce case is suspended. You may also want to suspend the proceedings if you and your spouse have decided to get a divorce, but cannot actively participate in the process. Parties may agree to suspend the divorce process for medical reasons, work-related concerns, or even issues related to their minor children.
If you are trying to navigate the procedural options for your divorce, it is important to consult with an experienced family law attorney to learn the implications of each option.
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The realm of family law, as is the case with pretty much all areas of law, is filled with lots of legal paperwork and legal jargon. Being able to understand and properly fill out the judicial council form is half of the battle for a layperson. These forms can provide you with a lot of information that will be helpful throughout your case. The divorce petition, for example, is one of the first forms filed in a family law action. Even without having a family law attorney to review and explain the form to you, you can easily learn a lot by yourself simply by taking a close look at the Petition from top to bottom.

The Petition (i.e. Form FL-100 on the top right corner) is a one page document (front and back) that you will receive when your spouse has filed for a divorce, separation or annulment. Beginning at the top left of the document, you can note whether your spouse has hired an attorney to represent himself/herself or if he/she is in pro per and intends on proceeding without legal representation. If your spouse has hired an attorney, the attorney’s name, state bar number and address will appear in this box. You can then visit www.calbar.ca.gov to perform an attorney search or you can review various websites to get more information about the attorney that your spouse has hired.

Below the contact information section of the form, it will specify the address of the court. This will tell you where your case will be heard so you know whether you will have to drive to North County San Diego, downtown, East County, etc. to attend your court hearings.

Below your names, there is a box that indicates whether the Petition is for 1) Dissolution of Marriage, 2) Legal Separation or 3) Nullity of Marriage. This lets you know when your spouse actually wants a divorce or if he/she prefers to get a legal separation. If your spouse checked the Nullity of Marriage box then your spouse is contending that your marriage is not legally valid.

Under the section of “Statistical Facts” you can see what date your spouse is claiming is your date of separation. If you disagree, you can claim a different date of separation on your Response form. A family law attorney can help assist you in determining the appropriate date of separation to claim.Under Section 4 and Section 5 of the Petition your spouse should have listed all items that he/she contends are his/her separate property and which items are community property and subject to division by the court.

If your spouse has filed for either a dissolution of marriage or legal separation then he/she can either claim that the reason is because of irreconcilable difference or incurable insanity. This selection will be marked in Section 6 of the Petition. There are several reasons why a person can request a nullity of marriage. If your spouse is filing for nullity of marriage, his/her reasoning will be identified in Section 6 as well.

Section 7 of the Petition will give you an idea of what your spouse is requesting as far as custody of your children, if any, who will pay attorney fees and spousal support, etc. Please note that just because your spouse checks the box, does not mean that the court will order his request. Don’t take these checked boxes at face value and remember that the law may not even support your spouse’s requests.
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Spouses who are served with divorce papers usually fall into one of two categories: completely shocked or not surprised. Whether you expected your spouse to file for divorce or not, receiving divorce papers can be an overwhelming experience. Likely you will served with a large packet of forms, some of which have been completed by your spouse and some of which are blank. In addition to the standard divorce packet filled out by your spouse, you will also receive notices issued by the court. All of this information can be confusing and difficult to process if you are not familiar with family law and procedure.

Once you are served with divorce papers one of the first thing you should decide is whether or not you want to retain an attorney at the onset of your case. An experienced family law attorney can demystify the divorce process and take over a lot of the work that needs to be done. In addition, the attorney will understand what the court requires of family law litigants and can ensure you do not miss deadlines and court appearances. At Bickford Blado & Botros, we offer a variety of services to divorcing parties. You can retain an experienced family law attorney to consult with you and answer your questions throughout the process or you can opt for full legal representation. In addition, we offer attorney-assisted divorce wherein our paralegal will help prepare all of the necessary divorce paperwork.If you decide not to retain an attorney at the beginning of your case, you should begin to familiarize yourself with the courthouse where your case has been assigned and note any hearings which are currently on calendar. At the onset of each divorce case, the court will assign a judge to hear the case and may even notice the first status conference at which the parties or their attorneys are required to appear. After you have reviewed all of the documents served by your spouse, you will want to determine how contentious your divorce will be. Depending on the circumstances, you may want to reach out to your spouse in an attempt to discover what issues you agree on and which issues you and disagree on. If you both are in agreement to proceed amicably, you can discuss mediation with a professional or informal conversation to resolve disputed issues.

Regardless of how you and your spouse agree to proceed with the divorce, you should talk to a professional (either your attorney or someone at the family law facilitator’s office) about the upcoming deadlines in your case and which forms you should be filing to protect your rights.
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Along with the New Year comes a plethora of New Year’s resolutions. Most people chose a resolution like exercising more, eating less or starting a new hobby. Some are able to stick to their resolution the whole year while other barely make it through the first of the year. For divorced individuals, there are a handful of resolutions that could put you on the right track for the upcoming year if you can resolve to stick to it throughout the year. These resolutions focus on improving your post-divorce relationships with your ex-spouse, your children and yourself.

Whether you just wrapped up your divorce or you have been divorced for quite some time, there is always room for improvement in the following areas.

1. Attempt to Communicate Better with Your Ex-Spouse
Divorce is filled with a variety of emotions, typically emotions that include a whole lot of anger and resentment. After the divorce is finalized you might have a bitter taste in your mouth and want nothing to do with you ex-spouse. However, if you have kids, chances are you aren’t quite done seeing or speaking with your ex. Do yourself a favor and make a resolution to work on communicating better with your ex-spouse. Simply avoiding the snarky emails to your ex can put you in a step in the right direction. And if you’re up to it, perhaps you could try going to lunch with your ex-spouse. This will give you an opportunity to catch up on the children’s activities and exchange information. Better communication will inevitably lead to better co-parenting.2. Put your Attention on Your Kids, Not your Ex-Spouse
Chances are you have spent a whole lot of time thinking about your ex-spouse…thoughts about what you could have done to make it work or thoughts about how upset you still are with him/her. Well it’s a new year and that means its time to shift your focus to your kids! Whether they show it or not, your kids have gone through a lot of change as a result of your divorce. Putting more attention on your kids can help them adjust in the New Year.

3. Limit Sharing Your Private Life on Social Media
Although Facebook, Twitter and other social media sites offer you the perfect opportunity to just say what is on your mind and let the whole world know about it, resolve to stop “bashing” your ex-spouse through your status updates. Also, if your ex-spouse can still view your social media profiles think about putting a halt to posting intimate details of your new relationship. If there were unresolved feelings between the two of you, this will give your ex-spouse a chance to heal without stirring up more feelings of anger and resentment.
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If you are going through a divorce then you are likely aware of how impacted the courts are, due to a limited budget, and how long a divorce can be drawn out as a result of court hearings being scheduled months out. Impacted courts are especially a concern for litigants going through a divorce who are dealing with a heavily emotional legal case.
Couples who need the Court’s assistance with getting permanent orders with regard to child custody, division of property, spousal support or other issues related to a divorce, may need another avenue to end their divorce sooner. Privately compensated temporary judges offer just that.

Perhaps the acronym PCTJ has come up in discussions with your attorney or opposing counsel. PCTJ stands for Privately Compensated Temporary Judge. California Rules of Court Rule 2.834, which became effective January 2010, provides parties with the option to opt out of public courts and make use of a privately compensated temporary judge.

A request for the appointment of a privately compensated temporary judge must be directed to and granted by the family court judge. The parties can sign a stipulation agreeing to hire a privately compensated temporary judge, which will then become a court order.

A privately compensated temporary judge has and exercises all powers and duties of a San Diego Superior Court Judge. However, matters that occur before a privately compensated temporary judge are not held at the courthouse. Since the proceedings will be held outside court facilities, typically court personnel may not be used in the proceedings.Hiring a privately compensated temporary judge typically results in a quicker hearing and therefore quicker resolution of the disputed issue(s) in the case. However, hiring a privately compensated judge does involve an additional cost. The parties will not only incur the expenses of their attorney’s fees, filing fees and other costs, but also the cost to hire the privately compensated temporary judge. The parties can agree to split the cost. However, this additional cost must be weighed against the cost of going through the public sector, which may actually rack up more attorney fees as a result of delayed hearings and potentially interrupted trials.
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According to a recent study highlighted by the Wall Street Journal, two economists at Emory University identified a correlation between expensive weddings and high divorce rates. In addition, the researchers also noted a connection between the price of the engagement ring and the rate of divorce. The more expensive the ring, the more often the marriage ends in divorce. Despite the statistical link between an expensive wedding or engagement ring and a subsequent divorce; the researchers were not able to conclude that the price of the wedding or the engagement ring was the cause of the divorce.

The Knot, a popular website used by brides to plan their dream weddings, reports that the average U.S. wedding costs approximately $30,000. The wedding industry today is brings in roughly $52 billion dollars in revenue each year. As a result, the industry pushes the idea that expensive weddings result in long-lasting happy marriages. In addition, the more the couple spends on their special day, the more they must love each other and want to share their joy with friends and family. Although the economists discovered that high attendance at less expensive weddings is actually correlated to a long-term marriage, the price for wedding guests to attend the wedding (often priced per person) is typically the most expensive part of a wedding.The study conducted by the economists tends to disprove the message perpetrated by the wedding industry based on the following findings:

Cost of the Engagement Ring: Couples who spent between $2,000 and $4,000 on an engagement ring are 1.3 times more likely to get divorced than couples who spent between $500 and $2,000 on an engagement in. It looks like less is more when it comes to the ring after all.

Cost of the Wedding: Couples who spent $20,000 or more on the wedding were 1.6 times more likely to get divorced.

Common Factors in Long-Term Marriages: High wedding attendance, taking a honeymoon, relatively high household income, regular attendance of religious services, and having at least one child together.

These initial findings are interesting, but the economists are not finished with their work on this subject. They are discussing additional research which dives deeper into specific populations and following couples through multiple stages of their relationship.
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October has been recognized as Domestic Violence Awareness Month since 1987 in hopes of connecting advocates across the nation to help end domestic violence against women and their children. Various activities are held at local, state and national levels including mourning those who have died as a result of domestic violence, celebrating those who have survived domestic violence, and offering a toll-free hotline to help provide services and information. In San Diego, the Domestic Violence Hotline is 1-888-DVLINKS (1-888-385-4657). In 1994 a national registry called “Remember My Name” was even created to help increase public awareness of those who have died as a result of domestic violence. Unfortunately, domestic violence between married couples is very real and more prevalent than we would like to think it is. Family Law attorneys often encounter clients who have been or are currently the victim of domestic violence. Family law attorneys can play a pivotal role in helping victims of domestic violence.

California law defines domestic violence as “abuse committed against an adult or minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship.” Victims of domestic violence have several legal options to protect themselves from further abuse. Although these remedies don’t necessarily stop the abuser, they do permit the victim to call the police and get the abuser arrested if/when they break the order.

If you are a victim of domestic violence and you are married to your abuser, you will likely be interested in getting a divorce. Domestic violence can be a factor in certain aspects of your divorce case, including child custody and spousal support, so it’s important that you have an experience attorney who can explain your rights to you.

Even if you haven’t filed for divorce from your abuser yet, a San Diego family law attorney can help you file a Domestic Violence Restraining Order. If granted by the Court, a restraining order against your abuser will require your abuser to not do certain things, such as being prohibited from calling, texting, emailing, stalking, attacking, or disturbing you. Your abuser may also be ordered to stay a certain distance away from you. This can be done on an emergency/immediate basis, whereby your attorney will seek a temporary restraining order to protect you while waiting for the court hearing to determine if the restraining order should become permanent for a specified period of time.
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For many people, their first experience with a courthouse is through a divorce proceeding. Going to court for the first time can be intimating for someone who does not know what to expect. If you have not been inside a courtroom before you likely imagine it is similar to images portrayed on television. In San Diego, the courthouses and courtrooms are vastly different than the courthouses and courtrooms shown on popular T.V. shows. Below is a list of tips to help you become prepared for your first trip to one of San Diego’s family law courthouses.

Parking:
In San Diego County there are six different courthouses that your case can be assigned to. Your case assignment will be based on the zip code of you or your spouse. Some of the courthouses (Vista, South Bay, and East County) have their own parking lots where litigants can park for free. However, these lots may fill up fast so you will want to allow extra time to find parking before your hearing. The three courthouses downtown do not have connecting parking lots and do not reimburse for parking. Litigants can park at a nearby lot (with a cost ranging from $10-$24 dollars for the day) or a metered parking space. Again, it is important to allow for extra time to find parking before your hearing.

Security in the Courthouse:
The San Diego County Sherriff’s Department staffs the security at all of the county’s family law courthouses. When you first enter a family law courthouse you must pass through the metal detectors and place all of your personal belongings on the conveyor belt to be x-rayed. If you want to pass through security without any problems, leave any weapons (including household items that could be used as a weapon) at home or in your car. Depending on the rules at the particular courthouse your case is assigned to, you may be required to remove your jacket and/or your belt before passing through the metal detectors. The security check will take a little time, so you will want to arrive a few minutes early to account for that.

Navigating the Courthouse:
After you make it through security, locate the department that your case is assigned to and wait nearby for the courthouse to open. You can often confirm you are in the right place by reading the signs posted outside of the department. Most courtrooms will post a list of the hearings for each calendar that day. One list might say 9:00 AM and have a list of name and then another might say 1:45 PM and have a different list of names. If you think you are in the right place and your case is not listed on the appropriate list, you should check with a bailiff.

The Courtroom:
Do not be alarmed if you are in the right place at the right time, but the courtroom is locked. It is very common for the courtrooms to open up much later than the time matters are originally set to be heard. When the judge is ready to hear your case, a bailiff will make the announcement that the department is open. Once the announcement is made, file in with the rest of the litigants and check-in with the bailiff. Before the judge takes the bench, the bailiff needs to review the list of hearings and determine which parties are present. If the bailiff has checked your name off the list, take a seat and wait for your matter to be called. While you are in the courtroom make sure that your cell phone is turned off. The courtroom will likely have other rules such as no gum chewing, food, drinks, hats, etc. Family law hearings are public; therefore, you will likely hear other cases go before you and your matter will be heard with the other litigants present in court.
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After you retain a family law attorney and file your petition or response for dissolution or separation, one of the first things that your divorce attorney will likely do is hand you a blank Form-150 and Form 142 and ask you to start gathering a plethora of documents related to your income, assets and debts. This can be very overwhelming for clients, especially those who are still dealing with the emotions and shock of grasping that they are about to go through a divorce. Consequently, the importance of preparing complete and accurate preliminary declarations of disclosure (“PDODs”) is often ignored because it appears to be a very daunting task for divorcing spouses.

Family Code Section 2100 specifically states that “a full and accurate disclosure of all assets and liabilities in which one or both parties have or may have an interest must be made in the early stages of a proceeding for dissolution of marriage or legal separation of the parties, regardless of the characterization as community or separate, together with a disclosure of all income and expenses of the parties.” It’s important that the parties get started on their PDODs right away because pursuant to Family Code Section 2104, the petition must serve his/her within 60 days of filing the petition and the Respondent must serve hers/his within 60 days of filing the response. Also, having PDODs allows the parties to move forward in identifying potential issues of dispute and resolving financial issues early on.

The PDODs are comprised of the following:

1) Declaration of Disclosure (FL-140): This form is signed by the party and is simply a summary of the attachments enclosed with the PDODs. You will note that all tax returns (personal, corporate, etc.) filed in the past two years need to be included.

2) Income and Expense Declaration (FL-150): This form is a summary of the party’s current income from all sources and his/her monthly expenses. Paystubs from the past two months need to be attached to the form.

3) Schedule of Assets and Debts (FL-142): This form sets forth a summary of the party’s assets and debts. Many people think that their separate property doesn’t have to be disclosed; however, all known assets and debts, including your separate property, community property and your spouse’s separate property that you know of must all be disclosed. This means all tangible and intangible items ranging from a residence to airline frequent flyer miles to student loans. Along with each asset or debt listed, you need to attach supporting documents. You may redact part of the account number on the account statements to protect your privacy.

4) Declaration Regarding Service of Preliminary Declaration of Disclosure (FL-141): This form is confirmation that of the date that you served your PDODs on the other party.

5) Proof of Service (FL-335): The proof of service is what is actually filed with the Court to let the Court know when you served the other party with your PDODs.

Failing to have complete and accurate preliminary declarations of disclosure can lead to potentially significant monetary and other sanctions. However, if you serve your PDODs and later realize that you have changes or updates, you can amend your PDOD at any time. However, you must file a Proof of Service of each amendment with the court.
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