The reality is, you may not. However, you may feel more comfortable having one. I have many consults where my sole purpose is to review or prepare one document, give an outline on how someone can proceed on their own, or refer them to more affordable services. I also have cases where the matter is simple enough someone could proceed on their own, but they do not want the added stress. Attorneys in the Bay Area are expensive. While I try my best to make my services affordable, sometimes those costs are unavoidable. In deciding whether you “need” an attorney for your dissolution/divorce/custody matter, you should ask yourself the following:
a) Can I afford it?
b) Are these issues complex or simple?
c) Can I “unbundle” the issues and have an attorney assist on only the complex issue(s)?
d) Would I feel comfortable moving forward on my own?
e) Do I want to deal with the stress of doing this on my own?
f) Can I utilize an attorney more effectively by doing consults as needed, rather than full
Only you can decide whether you need an attorney in your case. If you are unsure, schedule a consult and we can discuss what your options are.
When I meet with my potential clients, I like to give a broad overview of the process of divorce in California. While there are many small details that go into each step, I believe giving the big picture first helps everyone understand where they are going and focus on one step at a time. In general, you can expect 3 to 5 main components of a divorce. I am including the forms/outline of each step below for convenience:
1) Appearances by Both Parties
a) Petition (FL-100) & Summons (FL-110)
b) Response (FL-120)
c) UCCJEA (FL-105) if there are minor children
2) Financial Disclosures by Both Parties
a) Declaration of Disclosure (FL-140)
b) Schedule of Assets & Debts (FL-142) orProperty Declarations (FL-160)
c) Income & Expense Declaration (FL-150)
d) Last Two Years of Tax Returns
e) Declaration Regarding Service of Disclosures (FL-141)
3) Judgment (FL-180)
a) This may be reached by Agreement, through Litigation, or some combination thereof. Regardless of
how it is reached, this is the document that actually dissolves your marriage and returns you to the
status of single.
b) You may refer to Judgment Checklist (FL-182), for a complete list of all mandatory forms that must
be submitted with a Judgment.
4) Qualified Domestic Relations Orders (QDROs)
a) These are special orders, generally prepared by a separate expert called an actuary (some attorneys
do offer this service as well), which allow your retirement plan to be divided without penalties and
fees (see below – What is a QDRO?). In some cases, the Parties may agree to each keep their own
accounts, in which case this step would not be necessary.
5) Temporary/Pendente Lite/Modifications
a) Often, after a case is filed but before we can get to Judgment, many cases need temporary orders. The
most commonly requested orders relate to child custody, visitation, child support, and spousal
support. There are also circumstances after Judgment has been entered where you may need a
modification or an enforcement of a prior order.
b) These matters are addressed by filing a Request for Order (FL-300), along with any necessary
supporting documents and forms, to be placed on a “short-cause calendar” with the Judge. At these
hearings, your case is allotted approximately 20 minutes for the Court to hear argument and make a
decision. Being brief and concise is your friend.
At a minimum it will take six months for you to be returned to a status of single. There is a mandatory six-month waiting period in California. However, the documents to complete your divorce can be submitted at any time before or after this date.
How long it takes your case to be complete can vary greatly. I have cases where a Judgment has been submitted within two months of filing a petition. I have also had cases that continued in litigation for years. Often the complexity of the case and the level of animosity will greatly impact the length of your case.
California does not require the consent of your spouse to obtain a divorce. The Court will grant you a divorce, regardless of whether your spouse consents.
To file for divorce in California, you must have been a resident of California for the six months prior to filing. You will generally be required to file your dissolution in the county in which you have resided for the three month prior to filing.
A legal separation in California allows you to divide property and obtain orders related to custody, visitation, and support, while maintaining your legal marital status. We most often see this for reasons related to taxes, health insurance, immigration, or religious reasons. You do not need to have a legal separation to establish a “date of separation.”
When you file for a legal separation, you must complete the same process as you do for a dissolution of your marriage (see basic steps above). For this reason, unless there is a specific legal reason to proceed with a legal separation, most people will choose to move forward with a divorce.
Unless they fail to respond (allowing you to proceed to default), you and your spouse must agree to a legal separation.
No. Not in California. California is a no-fault divorce state. Meaning, generally no matter what the reason, the Court will follow the community property laws surrounding division of property, formulas for child support, Family Code Sec. 4320 factors for spousal support, and the best interests of the child(ren) for child custody and visitation.
In some instances, Domestic Violence can play into orders that are available to you. For example, if a spouse is convicted of domestic violence, they may not be able to seek spousal support against their victim.
As you start the divorce process, you will often hear attorneys refer to “community property,” or say that California is a “community property state.” What does that mean? The basic concept is that any asset or debt acquired during the marriage – from the date of marriage to the date of separation – is jointly owned with each of you having a one-half interest. This will generally apply, even if you do not hold joint title or have accounts that are held jointly. This also applies to income earned during the marriage. There are exceptions for assets acquired through inheritance or gifts to one spouse.
Separate property are the assets and/or debts that a spouse acquires before marriage, after the date of separation, or by gift/bequest at any time. If you owned property prior to marriage, this is your separate property. However, it can be “transmuted” to community property if you take steps to do so (i.e. adding your spouse to title on a real property you owned prior to marriage has generally been held to be a transmutation of property). There may also be reimbursement claims by the community, if community income was used to pay on separate property debts (i.e. a mortgage for real property).
There are many cases defining the “date of separation” in a dissolution action. This is not the date your Judgment is entered. As stated above, you do not need to file for a legal separation to establish a date of separation.
In general, the Court is looking for when there was a “complete and final break in the marital relationship.” This needs to be evidenced by at least one party expressing an intent to end the marriage, and you must show that the conduct following this expression is consistent with that intent. Meaning, if you say, “I want a divorce,” but then continue living together, sleeping together, engaging in intimate relations, sharing bank accounts, vacationing together, going to functions together, etc., making that statement alone is likely not enough.
In some cases, this will be very easy to determine. You had an argument, said you wanted a divorce, one party leaves the home, and you begin separating things immediately. In these cases, both Parties generally agree on the date and know, that is when the marriage “ended.”
In most cases, it is much more complicated. In the Bay Area especially, many people cannot move out on their own with just one income. They continue to share a home and they continue to share finances out of necessity. Often, when still residing together, there are a mix of emotions that make the personal aspect of their lives complicated as well. Perhaps they periodically continue intimate relations, even though they are seeing other people. One party may feel sentimental on an anniversary date and still give a gift or card in remembrance. The Court will be forced to look at all aspects of their personal conduct to determine when there was a complete and final break.
That will largely depend on what types of assets you have, and/or what changes have occurred during that time. Did someone move out and run up another $15,000 in credit card debts? Did someone deplete a joint savings account? Did you contribute another $15,000 to your retirement accounts during the disputed time period?
If you are unsure what your date of separation is, and you know there may have been some significant financial changes during that time, you can put “To Be Determined” as the date of separation in your initial pleadings (Petition FL-100 or Response FL-120).
This will somewhat depend on what type of account it is, and whether those contributions are traceable. For example, a retirement account is the most frequent account we see contributions to before, during, and after a marriage. Generally, the non-contributing spouse is awarded only one-half of those contributions made from the date of marriage to the date of separation, plus or minus any gains or losses attributable to that portion. So, if you had $100,000 in your retirement at the time of marriage and contributed $25,000 during the marriage, your spouse will only receive one-half of the $25,000, not the full $125,000.
For a savings or checking account, this can become complicated when the funds are co-mingled. If you kept a separate savings account (your name alone) and no additional funds were deposited during the marriage, the entire account remains your separate property, including gains/interest. However, what if you deposited funds during the marriage? What if you also withdrew funds during the marriage? In those cases, you will likely need a financial expert to trace what portion of the account is separate versus what portion is community.
If you want to avoid a financial expert, a good starting point is often looking to what the lowest balance the account dropped to after the marriage. If the account held $100,000 at the time you were married, but at some point dropped to a $0 balance, then your separate property was depleted (though there may be other reimbursement claims, depending on how the funds were used). Even if the account is built back up to $150,000, your separate property no longer exists.
On the contrary, if the account only dropped to $50,000 during the marriage, it is a pretty safe assumption that the $50,000 that remained in the account is still your separate property (though there may be some exceptions).
A QDRO is a special order that divides a retirement restricted account without penalty or taxes. This order is separate from your Judgement and is generally filed after a Judgment. Often, if there are liquid accounts (457, 401k, 403b), we will request one “offsetting” QDRO. An actuary will calculate the community interest in each account and transfer the net balance from only one account. This avoids having to prepare multiple QDROs and the transfer of multiple plans. While this is possible with Pension accounts, it is not widely practiced, as the value of Pensions is not as easily ascertainable or certain.
For a Pension division, generally a percentage formula is included in the QDRO that provides the non-participating spouse one-half of the service credit years earned during the marriage, divided by the entire number of years the participant worked. For example, if you worked and earned service credit years for 20 years and you were married for 10 of those years, your spouse would receive 5 years (one-half of a 10 year marriage) / 20 years = 25% of your Pension upon your retirement. There are many issues that may affect the final amount being paid (i.e. whether a survivor benefit was elected), but that is the general framework from which they begin. The Plan will perform the final calculation upon the participant’s retirement, so it may be many years before either of you know the exact amount of income you will receive from a pension.
Mediation is a form of Alternative Dispute Resolution (ADR), which allows the Parties to formulate their own agreement, outside of litigation. Mediation is confidential. Mediation is non-binding, unless and until you sign an agreement.
The process can take on many forms. In some cases, both Parties may be represented by counsel and appearing with their counsel at meetings. Or, in other cases, neither party may have an attorney and they work solely with the mediator together to reach an agreement.
The benefit of mediation is that you can formulate your own solutions, with the input of an expert. A mediator does not represent either Party and does not provide legal advice. While he/she may give you outlines of options and/or provide information on existing statutes/laws, a mediator should not be opining as to whether the deal you are entering is a “good” or “bad” deal, whether it is better/worse than what you would get in Court, or whether it is in your best interest.
In my mediation sessions, even after we have reached an agreement, I encourage both Parties to take the agreement to an attorney of their choosing, before signing, to ensure the agreement is what they believe it to be and that they fully understand the terms of the agreement.
While California does not require a mediator to be an attorney, if your mediation is about your divorce, generally I do believe that it is best to have a family law attorney as your mediator, or at least engaged for document preparation purposes.
Many health-care professionals offer mediation services for divorcing couples. This can be very valuable in cases where one partner is having a difficult time coming to terms with the divorce. They may need a more mental health focused approach to move beyond their disappointment and sadness before they are able to really come to agreements on division of property and/or child custody and visitation.
The downside to using a non-legal professional in this role, is largely related to procedure. If you have not yet filed for a dissolution of your marriage and you have not yet completed some form of financial disclosures, you may run into issues surrounding whether the agreement was properly entered as a post-marital agreement. Additionally, even if you have started the legal process, if you are using an attorney for document preparation and a separate person for mediation, you will often have an increase in costs. You are paying two professionals (sometimes three if you both have your own attorneys) for overlapping work.
In my mediation cases I offer either a “full service” mediation, meaning I work with you to complete all steps of your divorce (Steps 1 through 4 above), or a limited mediation where you complete Steps 1, 2, and 4 either on your own or with your respective attorneys, and all I prepare is the Agreement/Judgment through our mediation sessions.
It is unfortunate, but there are times when mediation is not successful. When that happens, it may be possible to have a partial agreement. Sometimes the Parties will leave with only one outstanding issue. Other times, the Parties may not be willing to do that, because they have conceded in other areas in contemplation of reaching a deal on all issues.
Regardless of how it happens, if mediation falls apart, no, I cannot and will not represent either Party. That is a conflict of interest, as I have been privy to information from both sides that you may not have shared with me as an opposing attorney.
Confidential means that anything discussed in mediation cannot be used in litigation. Any documents prepared for purposes of your dissolution are an exception to this rule (Petition, Response, Disclosures, etc.). Additionally, if you reach an agreement, the signed document is not confidential. It may be filed with the Court as part of your Judgment.
A premarital agreement, often called a prenuptial agreement, is an agreement reached between a couple prior to their marriage. This agreement is usually created to do one of two things, 1) opt out from California’s community property laws, or 2) to document the existing separate property at the time of marriage. Some couples will also define rights related to future spousal support.
Generally, in order for a premarital or prenuptial agreement to be valid, both Parties should have the final version at least seven days prior to their date of marriage. If there are agreements being made related to spousal support, both Parties must be represented by counsel. A premarital agreement must be in writing.