There is a lot to know about the divorce process. Even in the best situations, there are many, many issues to consider. In a complex case, there are even more. I have attempted to answer the most common questions that people who are about to go through a divorce need to know. If you want to discuss these questions in more detail or have additional questions and want to speak to one of our experienced Fresno divorce attorneys, please call us at (559) 230-2600. Divorce Attorneys and Family Lawyers since 1989.
A. Yes you can but you are held to the same standards as an attorney. While the court has a Facilitator’s Office to help you prepare the documentation you need to file, they cannot represent you at court and cannot give you legal advice. It would be hard to learn the law, apply it to the facts of your case, and make decisions regarding evidentiary matters all without any legal training. While it is always best to be represented by an attorney, an excellent resource is to have an attorney serve as a consultant in your case. If your case is a simple, straightforward, or uncontested (spouses in agreement), a coaching arrangement will work well for you. Examples include, when your ex-spouse charges you with missing a child support payment but you have proof of payment, or if you want to defend yourself in a simple visitation dispute. Coaching is not a good option for a complex divorce case.
A. The attorney you select should: 1) be objectively well qualified; and 2) inspire your confidence.
A well-qualified family law attorney possesses the following minimum attributes:
1. Practices only family law, not multiple areas of law;
2. Has a lot of experience, e.g., 20 years would be great;
3. Has received a superior education, i.e., a good college and law school; and
4. Has been recognized for his/her professional achievements, e.g, awards.
While your confidence has to be earned, several factors indicate whether or not an attorney will be able to earn your trust. Specifically, the attorney must: (1) allow you to make the major decisions in your case, such as going to trial or accepting a settlement; (2) be honest with you in all aspects of your case, including the positives and negatives of your position; and (3) be sensitive to your financial concerns, including giving you accurate cost estimates when possible. As with anything, however, remember that you get what you pay for.
A. Ask the important things that you cannot determine from outside sources. Examples include: (1) What are the billable rates of the people in the office?; (2) What costs are charged to you?; (3) What are the office billing procedures?; (4) How are decisions made in your case; (5) What input will you have in decisions?; (6) How you will be kept informed of developments in your case?; (7) How can you participate in your case to keep your fees down? The attorney should not hesitate to answer any of these questions. Remember, he/she will be working for you and you are entitled to anything you want to know.
A. A good attorney will get you everything you are entitled to receive, e.g., one half of the community property and all of your separate property. A great attorney will not only get you everything you are entitled to receive, but will also help you maximize the present value of each item you receive. For example, the Court does not usually take into account the net value of an asset when they are valued, e.g., a $100,000 retirement account is valued the same as $100,000 of equity in a home. The true value of each asset depends on what would be left if they were liquidated now. That $100,000 retirement account is only worth about fifty cents on the dollar or $50,000 when you take into account any penalty due and all the taxes you would pay if it was liquidated. The $100,000 equity in a house is probably worth about ninety-three cents on the dollar or $93,000 after deducting the applicable real estate commission and escrow charges. They don’t sound so equal now do they?
A good attorney will help you to get what you want. A great attorney will help you to determine what you want and on what terms you should receive it. Other than items of sentimental value, you should make sure that the property you receive will help you to satisfy your short term needs and accomplish your long term goals. Since your divorce will be dividing up everything that you have worked for up to this point in your life, it is important to make wise choices when selecting the assets you want and the debts you are agreeing to pay. If not chosen wisely, you may end up sabotaging your future, or at least making it harder to accomplish what you want to achieve. Besides, any perceived advantage you might receive when selecting property can quickly disappear if you are not capable of fulfilling any necessary prerequisites and/or your spouse is not capable of fully delivering.
A. A dissolution of marriage typically involves five issues: property division, spousal support, child support, child custody/visitation, and attorney’s fees. Each of these can be resolved by agreement (negotiated settlement) or contested in court (trial).
A. While every parenting plan is different, the following is very common. It will serve as a starting point to help you think about the detail that parenting plans include and possible ways to deal with sharing your children.
A. The divorce procedure starts with the filing of a petition and a summons. The petition states the basic facts of the case and what relief is requested. The summons specifies that the other side is being sued and has 30 days in which to respond. The other side then files a response. Depending on the nature of the case, additional documents may need to be filed. They include financial declarations, stating the income and expenses of each party, most recent pay stubs, and other financial documents. The court also requires the parties to exchange copies of their tax returns and disclosure documents, setting forth an inventory of their real and personal property, debts and allegations regarding their characterizations, i.e., separate or community. Contested divorce cases can take a long time to resolve. While the entire case is pending, temporary or emergency hearings may be held. For example, a party may ask for an emergency hearing on issues of custody or visitation, especially when the parents are engaged in a “tug of war” or the children are in danger. Courts often make awards of temporary spousal support and child support at a hearing after a case has been filed. This is done to protect the financially disadvantaged spouse during the divorce process. Once each spouse has an understanding of all the facts, the parties either reach an agreement or have the court decide, i.e., a trial.
● Self-help can be done by making a copy of your spouse’s bank statements, your joint bank statements, your joint tax returns, deeds, and real estate closing statement from the title company who handled your home loan. These are quick and inexpensive ways to get the documents your attorney needs.
● Informal discovery is when an attorney requests information from the opposing attorney without going through any formal procedures. If the parties are relatively amicable and the marital dispute has not gone out of control (which often depends on the personalities of the attorneys and the level of animosity between the parties), it is possible to save hundreds or even thousands of dollars by agreeing on a “discovery plan.” This allows each party to request in writing relevant documents, within reason, from the other side. Although no penalties or sanctions are incurred for failure to produce or reply (as is the case with formal discovery), considerable time and money can be saved if the parties and their lawyers are willing to cooperate.
● Formal discovery involves a precise legal mechanism. There are deadlines, definitions, and rules that must be obeyed or penalties will be imposed by the court. Here are some examples: Interrogatories are written questions that are sent by mail to the opposing counsel. The opposing party must answer interrogatories under oath within 30 days. Demands for Inspection require the other side to produce documents at a specified place and time for inspection and photocopying. A deposition is oral testimony given under oath in front of a court reporter. Generally, the deposition is taken in a lawyer’s office. No judge is present. The reporter prepares a printed transcript of the testimony, which can be very useful in exploring what facts or data the other side has, accusations made, and generally, the other side’s thinking about the case. Although generally more expensive than interrogatories, a deposition tends to generate more complete and spontaneous responses, and a lawyer is allowed to ask “follow-up questions.” Requests for Admission require a party to admit or deny a statement of facts or mixed statements of fact and law. If a party denies an admission which is later proved to be true, that party will be required to pay the other attorney’s fees and costs incurred for having to prove the statement.
A. No. Approximately ninety-five percent of all cases ultimately settle. Some settle with the parties never having to go to court, others require some preliminary determinations be made by the court. Each case is different and will settle under the conditions that are right for the parties involved.
A. A trial is the end of a long and expensive process that, in essence, tests how thoroughly prepared your attorney is for this potential outcome. Sometimes before the trial, there is a pretrial conference with the judge to organize the case and focus the issues. You will meet with your attorney to rehearse your testimony, go over questions that will be asked and may be asked, and reviewing documents that will be introduced as evidence. Your attorney will write the testimony, prepare witnesses and select exhibits to be introduced at trial. Attorneys will also prepare a written memorandum that summarize and explain points of law for the judge clarifying the issues and the facts. On the day of trial, the judge will which determine what cases will be heard that day or whether a case will have to be continued. If a continuance is not ordered, your case will be heard that day. The trial is made up of several phases:
- The petitioner’s case involves his or her testimony, immediately followed by opposing counsel’s cross-examination. The petitioner also introduces his or her exhibits and documents. Then the witnesses for the petitioner testify and are cross-examined by the other side. Likewise, they may offer documents into evidence.
- The respondent has the same opportunity— to give testimony, present evidence, and offer witnesses. The petitioner ’s attorney may cross-examine each witness.
- The attorneys usually do the opening and closing statements or arguments for their clients. A judge hears divorces and other domestic relations cases (not a jury). After both sides present their cases, each is given the opportunity for rebuttal, which is testimony that denies or contradicts what the other side has presented. The lawyers will have the opportunity to make a closing statement, in which they summarize their evidence and argue for the results they seek.
- Then comes the court’s decision. This may follow closing statements, or it may come days or weeks after the trial has concluded if the judge takes the case under advisement. Once the court makes its decision, the judgment must be drafted. Sometimes the court does this, but more often than not, the attorneys write it up for the judge to sign. This process can take weeks or even months in a complex or highly contested case.
A. Yes. Arbitration is a process in which a neutral third party renders a binding decision on the issues presented in a divorce, e.g., support, property, custody, etc. The arbitrator acts in much the same fashion as a judge. The parties pay the arbitrator (usually in equal shares), and the proceedings usually are faster and less formal than a trial. The arbitrator’s job is to listen to the facts of the case and render a decision. Private judging involves a similar process; the parties select a private judge to determine all issues in the dispute. While the cost of the arbitrator’s services are expensive, they are much cheaper than the cost of protracted litigation.
A. Yes, there are a couple of options worth considering: mediation and collaborative law. These options can sometimes be less expensive and less time-consuming than litigation. However, these options require both parties to be willing to give a little to get a little. These options will not be available in cases involving domestic violence.
Mediation is an informal dispute resolution in which a neutral third party, (a trained mediator) helps the parties resolve their conflicts and reach an agreement. Choosing sides or giving legal advice is not a mediator’s role. The mediator does not make decisions, but rather encourages the parties to work together to make their own decisions. Mediation is an increasingly popular option and generally cheaper than litigation. Depending on the agreement of the parties, attorneys may be present (or excluded) from the mediation session(s). The cost of a mediator’s services depends on several factors, including his or her experience, level of expertise, etc. You may even be able to find low-cost mediation through the local law school or bar association.
Collaborative law means agreeing to negotiate a settlement without going to court at all. The parties agree to cooperate fully in the settlement negotiation process and to provide freely and promptly any documents or information requested. The attorneys help to facilitate negotiations and draft settlement documents, but one drawback is that they cannot go to court. If at any point either party decides to pursue litigation, both attorneys are discharged and new counsel hired. Mediation and collaborative law are give-and-take situations. Nothing can be demanded and usually, a good deal of compromise is necessary. It is important to examine exactly what you want to happen in your case and to be aware of your “bottom line.” Fair negotiations and an open mind are essential to the success of these alternate resolutions. Bringing your anger over past events into the ring will ensure the failure of any settlement offers. These alternatives work the best when both parties are willing to work together to reach an amicable settlement in the best interests of all concerned. These options do not work well when there is physical abuse, substance abuse, persistent anger or passivity, mental health problems for one or both spouses (such as severe depression), or when one spouse wants to use the legal process for revenge or to punish the other spouse. In these situations, attempting to reach an agreement may be a waste of time and money for both parties.
A. Each Family Law Court has a Facilitator’s Office to help those going through a divorce fill out their paperwork should they choose to represent themselves. The process is started by calling the Facilitator’s Office and making an appointment. A link to each Court’s website and contact information is set forth below. Also, each Court provides mediation services to help parents work out custodial agreements. The services are provided through Family Court Services and are available once a child custody motion is filed.
Fresno Superior Court: http://www.fresno.courts.ca.gov/family/
Madera Superior Court: http://madera.courts.ca.gov/MaderaProceduresFamilyLaw.htm
Kings County Superior Court: http://www.kings.courts.ca.gov/divisions/familylaw.htm
Tulare County Superior Court: http://www.tularesuperiorcourt.ca.gov/index.php?section=family-law
A. It depends. Separate property is defined as anything you acquired before marriage, after separation, or anything you acquire by gift or some type of inheritance. You are entitled to keep your separate property as long as you can identify it. Most people, however, run into problems when the identity of their separate property is no longer that clear. Because most of us do not enter into marriage thinking we are going to get divorced, we do not take the appropriate efforts to keep our separate property segregated. The most common way to lose the identity of our separate monies is to “commingle” it with community monies. “Commingling” is, in essence, combining separate and community monies into one bank account and then being unable to tell which is which. Another common way is to just lose the records necessary to identify our separate property.
A. It depends. All retirement monies earned before marriage and after separation are your separate property which you are entitled to keep. Retirement monies earned during the marriage, however, are community property and are required to be evenly divided. While you may be very interested in keeping all of your retirement benefits, your ability to do so will depend upon how much other community property there is and your spouse’s willingness to do so. Being awarded all of your retirement benefits is not automatic.
A. The Court is required to divide community property equally between the parties. Community property is presumed to be anything acquired by the parties during the marriage. The Court will first attempt to divide community property in kind, i.e., certain items to one spouse and certain items to the other. If one spouse gets more community property than the other, the one receiving more will owe the other one half of the difference. This is called an “equalizing payment.” In many cases, there are items of community property that can be divided to make the division of community property equal such as retirement accounts, bank accounts, and securities. The Court frowns upon having to sell all of the community property and divide the proceeds. Such an option is only used as a last resort.