1. Procedural Steps of a Divorce:
There are generally four steps involved in a divorce. They are more specifically summarized in Exhibit "A" attached.
a. The First Step:
The first step in preparing for a dissolution of marriage is processing of the paperwork. This generally includes preparation of the following pleadings:
Order to Show Cause (for the purpose of requesting relief at the first hearing);
Temporary Restraining Orders;
Income and Expense Declaration;
Response, if appropriate; and,
Responsive Declaration to Order to Show Cause, if appropriate.
At our first meeting, we generally prepare all necessary paperwork in order to either initiate the divorce or to respond to the Petition filed by the spouse. These pleadings are then generally served upon the other party. The purpose of the service is to "start the clock ticking." Once the pleadings are served upon the other party, the Judgment of Dissolution of Marriage can be granted dissolving the parties' marital status, 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 a 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 we limit our practice to Family Law, we do not encourage divorces.
b. The Second Step:
After the pleadings have been drafted and served, the next step is the Order to Show Cause, the initial hearing. Generally, the following issues are addressed at the initial hearing:
Child custody and visitation;
Use of the residence and motor vehicles;
Joinder of any pension plans;
Request for attorney's fees and costs; and,
Any other miscellaneous relief which may be necessary in order to maintain stability for the benefit of the children and the parties.
The first hearing will normally occur within twenty-five (25) 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 courts generally will not take testimony at this time.
If custody or visitation is an issue, the parties will attend a meeting with Family Court Services (FCS) for mediation prior to the Order to Show Cause hearing. The recommendation of the FCS counselor will be submitted to the court for review at the hearing.
The purpose of the hearing is to maintain the status quo, to ensure the children and supported spouse have sufficient financial resources to maintain the necessities of life and to balance between households a common standard of living.
c. The Third Step:
The third step involved in a dissolution of marriage is generally the discovery phase. This often includes 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:
To secure information;
To solidify testimony so it may not be changed at future hearings or trial;
To obtain necessary documentation to adequately present your case; and,
For the purpose of evaluating witnesses.
After the deposition, many times subpenas are sent out to verify the information obtained at the deposition. By the time the first three steps are completed, the emotional involvement of the parties has generally subsided to the level where many cases are in fact resolved by settlement. We will then formulate a settlement offer for the purpose of resolving the case in total. Please be assured that no offer of settlement will be made without your knowledge. If the settlement offer is accepted or amendments thereto are agreeable to all parties, a settlement agreement will be prepared. This document essentially indicates which assets will be allocated to the wife and which assets will be allocated to the husband. It will also address the issues of custody and visitation, together with support and all other matters. Once the settlement agreement is signed by both parties and their attorneys, it is filed with the San Diego Superior Court in the form of a binding court order.
d. 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 three (3) hours, it will be placed upon what is called the "short-cause" calendar. The San Diego Superior Court hears this short-cause calendar on Fridays. We are generally assigned a date for trial within about four (4) months from the date on which the trial is requested.
If, however, the case will take longer than three (3) hours, it is set upon the "long-cause" calendar. Under this procedure, the San Diego Superior court will assign a Mandatory Settlement Conference date approximately six (6) to eight (8) months from the date on which the trial is originally requested. At this Mandatory Settlement Conference, we will be required to meet with a judge or one or two attorneys who limit their practice to Family Law. These attorneys or the judge will review our Settlement Conference Brief which we will have prepared in advance. They will review the positions of both sides with respect to all issues. They will then give a recommendation for the purpose of helping the parties resolve the case. If the matter is not resolved, the case will proceed to trial, usually within forty-five (45) days of the Mandatory Settlement Conference.
The purpose of this material is to confirm the discussions in our offices at the initial interview relative to how a divorce works procedurally, your substantive rights and obligations, the psychological impacts of a divorce and other important matters. Much of the information may be difficult at best to understand in one session. Accordingly, we have attempted to summarize our discussions as more specifically set forth below:
Information For New Clients
2. Uncontested Divorces:
The above-described procedures outline the general steps utilized in a contested divorce proceeding. If in fact you feel this matter is able to be settled from the very beginning, our offices encourage sending out a settlement letter along with the initial pleadings. This provides the other spouse with the opportunity of addressing the issues in a constructive approach aimed at expeditious settlement. This has the obvious advantage of savings attorney's fees, costs and emotional distress to both parties. Accordingly, with the initial pleadings, we encourage sending out a settlement letter so that the expense of Steps Two, Three and Four can be avoided. This is more specifically set forth in the diagram attached as Exhibit "B" hereto.
However, 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 a settlement proposal.
3. Substantive Rights and Liabilities in a Divorce:
A schematic diagram of the substantive rights and liabilities with regard to a divorce are reflected on Exhibit "C" attached hereto. More specifically, those 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. 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:
Personal injury awards.
There are considerable exceptions and refinements to the general parameters as set forth above which we will be reviewing in this case for the purpose of characterizing and dividing assets.
4. Restraining Orders:
Once the Summons and Petition for Dissolution of Marriage have been filed with the San Diego 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. These orders restrain the parties from:
Removing any minor child or children of the parties from the State of California without the prior written consent of the other party or an order of the court;
Cashing, borrowing against, cancelling, transferring, disposing of or changing 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,
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 for the necessities of life.
You must notify each other of any proposed extraordinary expenditures at least five (5) 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's fees in order to retain legal counsel in the action.
If you have any questions with regard to the meaning of these restraining orders, please do not hesitate to contact me.
5. Psychological Aspects of a Divorce:
Elizabeth Kubler Ross has authored a treatise upon the stages of death and dying. These stages appear to also be felt by most people throughout the process of a divorce, although not necessarily in order. These stages occur as follows:
First Stage: Denial and isolation;
Second Stage: Anger;
Third Stage: Bargaining;
Fourth Stage: Depression; and,
Fifth Stage: Acceptance.
Many experts believe spouses in dissolution of marriage proceedings go through the same stages. If true, the 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 Second Stage of anger communicates with a spouse in the Fifth Stage of acceptance about as well as if the former understood only English and the latter only French. 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 is required as to when it is appropriate to embark on settlement discussions.
6. Estate Planning:
It is critical that a party to a divorce proceeding reconsider 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 the right to 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.
Please call our offices and we will refer you to a qualified Trust and Wills attorney for you to choose in connection with your estate planning needs.
7. 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" to which you may be entitled. 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 DOS, with monthly statements thereafter and the cancelled checks that were used to make payments following the DOS. You would then be in a position to fill in the "Epstein Chart," a copy of which is attached as Exhibit "D" hereto.
An additional "accounting" problem arises when charges on a joint account are made after the DOS. 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 DOS occur. Frequently, the judge in your matter will arbitrarily allocate the interest between the community and separate debt. To avoid this problem, it is best to make charges after the DOS on accounts which have no outstanding community indebtedness.
8. Joint Credit Cards (Community Property v. Contract Law):
Consistent with the foregoing, a debt incurred after the DOS 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 joint credit card by one of the spouses is the separate obligation of that spouse under community property law, the creditor (normally the bank or department store) 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.
Despite the intricacies involved in a divorce, our offices try to maintain a positive approach towards the dissolution process. You will find our staff is highly educated and highly motivated with years of experience dedicated solely towards resolving your Family Law problems. You will find our offices are equipped with the most modern facilities available anywhere for the purpose of handling Family Law disputes. I have been certified by the California State Bar as a Specialist in Family Law. I have been asked to act as a temporary judge in the San Diego Superior Court, Family Law Division. I also am currently involved as a panelist on the Mandatory Settlement Conference attorney list with the San Diego Superior Court. Our offices accept no cases other than Family Law matters.
Our basic philosophy with respect to Family Law matters is to attempt to resolve all cases in a fair, reasonable and well-informed manner for the benefit of our clients. We have found that our clients are generally most satisfied when they can resolve the issues by means of settlement, thereby taking control of their own destiny, rather than laying their lives before a court which has limited time to consider all the important aspects of one's life. Nevertheless, if settlement is not possible, which indeed happens, we offer years of experience in litigating these matters.