Divorce/Dissolution

What is involved in the divorce process?

There are generally four steps involved in dissolution.

1. The First Step
   The first step in preparing for dissolution is the processing of the paperwork.
   This generally includes, but is not limited to, the preparation of the following initial documents (pleadings):
   1. Summons and Petition;
      OR
      Response;
   2. Order to Show Cause pleadings for the purpose of requesting relief at the hearing;
      Responsive Declaration to Order to Show Cause;
   3. Temporary Restraining Orders (optional);
   4. Declaration (Story);
   5. Income and Expenses Declaration; and
   6. Schedule of Assets and Debts
   
   Following our first meeting, we generally prepare all necessary paperwork in order to either initiate the processing of the divorce or to respond to the Petition for Dissolution. The pleadings are then generally served upon the other party. The purpose of the service “starts the clock ticking”. Dissolution can be granted, at the earliest, six (6) months from the date of service. The purpose of the six-month waiting period is to encourage reconciliation between the spouses, and if in fact reconciliation occurs during this period, kindly contact our offices and we will see that all paperwork is stopped. Additionally, if you would like a referral for counseling to reconcile the marriage, we will be happy to refer you to qualified counselors. Although our practice includes family law, we do not encourage divorces.



2. The Second Step
   After the pleadings have been drafted and served, the next step is the order to show cause hearing. Generally, the following issues are addressed:
   1. Spousal Support;
   2. Child Support;
   3. Child Custody and Visitation;
   4. Restraining Orders;
   5. Use of the residence;
   6. Joinder of any pension plans;
   7. Request for Attorney’s Fees and Costs; and
   8. Miscellaneous relief that may be necessary in order to maintain stability for the benefit of the parties and children.
   
   The first hearing will be set within 30-60 days of the date the pleadings are initially filed with the Court, absent any continuances. At this hearing, the attorneys will argue the case, and the Court generally will not take any testimony at this time. If custody or visitation is an issue, the parents will need to have attended mediation at Family Court Services prior to the time of the hearing. The purpose of the hearing is to maintain the status quo, to ensure the children and the supported spouse have sufficient financial resources to maintain the necessities of life and to balance between the households a common standard of living. Before commencement of the third step we will ask you to complete your Preliminary Declaration of disclosure with supporting documents. A staff member will help you fill out the necessary forms.



3. The Third Step
   The third step involved in dissolution is generally the discovery phase. This usually includes interrogatories and requests for documents of the opposing party, and if necessary will include the taking of depositions. A deposition is generally conducted in our conference room or the offices of the opposing counsel. A court reporter is present. At that time, I will be asking questions of your spouse for the following purposes:
   1. To secure information;
   2. To solidify testimony so it may not be changed at future hearings or trials;
   3. To obtain necessary documentation to adequately present your case;
   4. For the purpose of evaluating witnesses.
   
   After the deposition, many times subpoenas are sent out to verify the information obtained at the deposition. Also at this time you will be required to complete, if you haven’t done so already, your final declaration regarding disclosure. This includes a current (within 30 days) Income & Expense Declaration and a Schedule of Assets & Debts. By the time the first three steps are completed, the emotional involvement of the parties has generally subsided to the level many cases are in fact resolved by settlement. We will then formulate a settlement offer for the purpose of resolving the case total. If the settlement offer is accepted, or amendments thereto are agreeable to all parties, a settlement agreement will be prepared. No offer of settlement will be made without your knowledge. The settlement agreement essentially indicates which assets will be allocated to the wife, and which assets will be allocated to the husband. It will address the issues of custody and visitation, together with support and all other matters. The settlement agreement is filed with the Court in the form of a binding Court Order.



4. The Fourth Step
   If the matter cannot be resolved by stipulation it will proceed to the fourth step, which is trial.  If the trial is expected to be shorter than five hours, it will be placed on what is called the “short-cause” calendar.  You are generally assigned a date for trial within four (4) months from the date on which the trial is requested.  If, however, the case will take longer than five hours, it is set on the “long-cause” calendar.  Both are set by filing an At-issue Memorandum to select the trial date.  In preparation for trial, we will prepare a trial brief, subpoenas necessary for any witness(es) and make whatever motions are needed. 

Uncontested Dissolution

The above-described procedures outline the general steps utilized in a contested dissolution proceeding. If, in fact, you feel this matter can be settled from the very beginning, our offices encourage sending out a settlement letter along with initial pleadings. This provides the other party with an opportunity of addressing the issue in a constructive approach aimed at expeditious settlement. This has the obvious advantage of saving attorney fees, costs, and emotional distress to both parties. If you feel you have inadequate information with which to make an offer of settlement, it is wise to wait until after the discovery procedure before offering settlement.

Substantive Rights and Liabilities in Dissolution

Assets acquired by you prior to your marriage are usually confirmed to you as your sole and separate property free and clear of any interest of your spouse unless the community acquired an interest by making payments or contributions to your separate property. So also are those assets you acquire after the date of separation.

Those assets accumulated by you during the course of the marriage are generally characterized as community property.  Community property assets are normally divided equally between the husband and the wife.  There are certain exceptions as follows:

1. Gifts;
2. Inheritances; and
3. Most personal injury awards.

There are considerable exceptions and refinements to the general parameters set forth, above which we will be reviewing in this case for the purpose of characterizing and dividing assets.

Restraining Orders

Once the Summons and Petition for Dissolution of Marriage have been filed with the Orange County Superior Court the following standard restraining orders, which are set forth on the reverse side of the Summons, will be in full force and effect. These mutual restraining orders are issued automatically and apply in every case. The restraining orders restrain the parties from:

1. Removing the minor child or children of the parties, if any, from the state 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 and their minor child or children; and
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 necessities of life.

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, nothing in the restraining orders shall preclude you from using community property to pay reasonable attorney fees in order to retain legal counsel in the action.

Psychological Aspects of Dissolution

Elizabeth Kubler Ross has authored a treatise upon the stages of death and dying.  These stages appear to also be felt by most people during the process of a divorce.  These stages occur during a period of approximately three years.

1.  First Stage:              Denial and Isolation                  1-5 Months
2.  Second Stage:         Anger                                       1-6 Months
3.  Third Stage              Bargaining                                3 Months
4.  Fourth Stage            Depression                               3-5 Months
5.  Fifth Stage:              Acceptance                              ???

Many experts believe spouses in dissolution of marriage proceedings go through the same stages.  If true, this process would have a direct effect on the ability of the spouses to communicate with each other.  Such communication is required to minimize litigation, which is costly financially and emotionally.  For example, a spouse in the anger stage communicates with a spouse in the stage of acceptance about as well as if the former understood only English and the latter only Spanish.  Consequently, often it takes time for one or both spouses to work through the emotional turmoil of a divorce before they get into a compatible stage where clear communication resides.  Accordingly, patience and good judgment are required as to when it is appropriate to embark on settlement discussions.

Estate Planning

It is critical that a party to a dissolution proceeding reconsiders his or her estate planning.  This would include, by way of illustration, preparing a new will or revoking any power of attorney or trust agreement.

You will also want to consider severing any property held in joint tenancy  between you and your spouse.  The feature of joint tenancy is right of survivorship which means if one spouse dies the other spouse, by operation of law, succeeds to total ownership of the property even if the decedent had a will to the contrary.  For example, if you die, your spouse would become full owner of all property held in joint tenancy, regardless of the terms of your will.  Of course, the same is true if your spouse dies.

Epstein Credits

There are many ways in which you can help.  One such way is to keep your files well organized to support “Epstein Credits” you may be entitled to.

Debts that exist as of the date of separation (“DOS”) are generally community debts regardless of which party incurred them.  On the other hand, income earned by either party, after the DOS is that person’s separate property.  To the extent income earned after the DOS (therefore separate income) is utilized to pay community debts, then, with certain exceptions, you would be entitled to reimbursement at the time of the division of community property.  This reimbursement is defined as an “Epstein Credit”.   It is helpful to think of it as separate property being used to pay community debts.

In order to prove these credits you need to keep copies of the bills showing the amount of the indebtedness close to the date of separation, with monthly statements thereafter, and the canceled checks that are used to make payments following the DOS.

An additional “accounting” problem arises when changes on a joint account are made after the date of separation.  The problem is that the allocation of the interest assessed against the separate charges as distinguished from the community charges is very difficult, if not impossible, to determine.  The same problem arises when charges and subsequent payments after the date of separation occur.  Frequently payments after the date of separation occur, often times the Judge in your matter will arbitrarily allocate the interest between the community and separate debt.  So to avoid this problem it is best to make charges after the date of separation on accounts, which have no community obligations outstanding.

Joint Credit Cards (community property v. contract law)

Consistent with the foregoing, debt incurred after the date of separation is the separate obligation of the incurring spouse under community property law.  A different wrinkle under contract law is added when such a debt is incurred on a joint credit card.

Under such circumstances both spouses are jointly and severally liable for the obligation under the contract they signed at the time the joint credit card was issued.  This means while a debt incurred against a join credit card by one of the spouses is the separate obligation of that spouse under community property law, the creditor (normally the bank) can go against the other spouse under contract law if the spouse incurring the debt does not pay it.  In short, consider very carefully whether you want to cancel joint credit cards and credit lines.

What is Mediation?

After filing in Orange County an Order to Show Cause request for a hearing with any child custody or visitation issues, the parties are ordered to attend a specific mediation date.  It is imperative that you understand that you must attend, as your failure to attend could result in your being fined up to $500.00. 

Mediation is scheduled in all cases where an OSC relating to custody or visitation has been filed.  Attorneys are not allowed to attend Mediation with their clients.  At mediation the parties sit down with a trained mediator and attempt to come to an agreement relating to legal and physical custody of the minor children, and the specifics of any timeshare/visitation arrangement. 

We do not want to frighten you away from coming to an agreement, but must advise you to entirely comfortable with any proposed agreement before giving the terms either your verbal or written endorsement, as once an agreement has been reached in Mediation, the court will make the terms an order of court at the upcoming hearing.  You must take into account your discomfort in the mediation setting, and any possible pressure you feel to resolve the issues at that particular moment.  Please be aware that once you agree to the terms in mediation, you will not be able to then leave the courthouse, reflect on what was said and decide that you don’t like those terms after all and expect to be able to make changes at time of hearing.

Conclusion

Our basic philosophy with respect to family law matters is to attempt to resolve all matters in a fair, reasonable and well-informed manner for the benefit of our clients.  We have found our clients are most satisfied when they can resolve the issues by means of settlement, thereby taking control of their own destiny, rather than placing their lives before a court which has limited time to consider all the important aspects of one’s life.