Thurman's Best Attempt At a Simple Outline of the Divorce Process -
Issues Involving Money
Many people bump into the Enlightened Divorce Blog™ while trying
to figure out how to handle, possibly by themselves, their marital dissolution
or non-marital family law issues. Google loves our website, because we
love you and have written hundreds of carefully considered and researched
how-to articles, but not just for self-represented parties; we have a
wide readership of family law attorneys and even judges, particularly
for our more complex articles. The professionals among us can skip this
blog, as I want to just lay out an easy-to-comprehend summary of how divorces
typically work for people struggling to understand it all, as my New Year's offering.
There are two major themes that need to be understood in divorce: Substantive
issues and process issues. Substantive issues deal with what you are entitled
to and must part with, and process issues deal with how family court works
and what you need to do procedurally to complete a dissolution.
This blog article is an overview of issues relating to money, including
property division but not spousal support. I will write Part II about spousal support and then Part III about process,
including deadlines and forms, next. I may write a Part IV about child
related issues, though with a little effort you can find our writings
about custody and visitation issues and child support. I have a stiff
neck, and prefer to publish my articles according to my stamina - LOL.
If you find you appreciate our work, the support with social media would
be a fair exchange, neh? I spent my entire 2016 Christmas vacation going
through every one of 1,800 pages on this site - which I admit needed to
be cleaned up, and a small thank you would be appreciated. It is what
keeps my manic motor running, after all.
Rather than rewriting certain topics from scratch for you, which would
be too long anyway, I am going to link to other articles about specific
topics as we move through them and I urge you - if something resonates
- to follow the thread. This outline will help you move quickly to what
is relevant and important to you, and hopefully to find answers to the
questions that you may be wondering about today, or should be!
Preparing for Divorce
This topic comes in two flavors, basically: Those who aren't married
yet, and those who haven't filed for divorce or told their spouse
yet. As to those who aren't married, I urge you to consider a
premarital agreement especially if this is not your first go-around at tying the knot. Philosophically,
I am more resistant to younger people in their first marriage entering
in to a prenup but the cynical lawyer side of me would urge it in every
case for the higher earner/higher asseted party, and oppose it in every
case for the less empowered partner to be. But one thing is for sure -
just by investigating a premarital agreement even if you forget to mention
you did to your fiancé, you will receive critical insights about
things to avoid, or at least what their consequences are, by reason of
the legal education you will get.
Alternately, even if a premarital agreement is not for you, buying an hour
of an expert matrimonial lawyer's time before you marry will pay dividends
that you cannot now imagine or comprehend. It just amazes me that people
are either too cheap or too naive to do a little
due diligence about the legal consequences before buying a marriage - they are often the ones who wouldn't buy a $10,000 car without going
to Car-Fax and grinding the salesman, but I promise you the car you won't
get to ever possess for the monies it will cost you to hire a competent
lawyer upon divorce but didn't both to do do a little research is
- well, it may become someone in my professions' car instead. I'd
rather you get it!
Then, there is
pre-divorce planning, which is a separate topic.
Choosing Your Attorney If You Do Find Yourself in Divorce
Choosing your divorce or family law attorney is a topic I've written about extensively. This website is organized
into blog categories, family law statutes and court rules, sample forms, our
frequently asked questions' page, and the topical (i.e., keyword) tags that - if you can divine how to
use the site with the search engine in the upper right of each page -
will help you find what you are looking for. Please try the search engine
before leaving if you have unanswered questions.
What is the Difference Between a Dissolution, a Legal Separation, and an
Again, this is an overview. A
legal separation does everything a divorce does, except that you remain legally married.
It requires the consent of both parties - you cannot impose it on your
spouse over their objection. You are entitled to all the same orders,
including property division, custody, and support, as you are in a dissolution.
There is no waiting period for a Decree of Legal Separation. It can always
later be converted into a dissolution, without having to start over. You
don't even have to be a resident of the State to file one.
An annulment, or in California statutory parlance a
"nullity of marriage", can only be granted if you can show one of five legislatively approved
grounds for it. It has the legal effect of undoing the marriage (the marriage
is either void at inception, or voidable). Family court judges don't
grant annulments if the statutory conditions have not been met. Generally
speaking an annulment, as a void marriage, has the consequences that no
rights to spousal support arise (assuming an annulment is granted) and
community property cannot - by operation of law - be created. It is as
though there was no marriage.
A dissolution is, duh, a divorce. A divorce, at its essence, terminates
the marital legal status of persons who are spouses. While a case can
be concluded the day after you file, you cannot become an unmarried person
earlier than 6 months and a day after you or the other person were served
with the Summons and Petition.
Today's blog is about divorce. I won't be covering legal separations
or annulments any further here, but all you need to do is a little searching
on this site and you'll find what you need to know.
What Are the Money ABC's of a Divorce Action?
Identifying and Dividing Community Property
A divorce action is initiated by filing a Petition for Dissolution of Marriage,
Judicial Council Form FL-100. Upon the filing a Summons is issued, in
Form FL-110. That summons contains automatic temporary restraining orders called
ATROS. ATROS are as set forth in
Family Code section 2040, but relate to assets, debts, and children. The moment your case is filed,
you are deemed bound by the ATROS, and in fact the FL-100 says you've
read them and agree to be bound. No one does, but good lawyers point them
out to their clients. The other party is not bound by the ATROS until
they are served with the Summons. There is an exception contained in the
section 2040 ATROS that allows you to liquidate property or accounts to
hire an attorney.
One of the most important attributes of the matrimonial relationship in
California is that once you are married, you and your spouse owe each
other fiduciary duties of the highest order, per
Family Code section 721. We have written scores of
articles about fiduciary duties. The rules regarding fiduciary duties mean that you cannot self-deal to
the detriment of your spouse, during the marriage. These FD obligations
continue until the marital relationship ends AND all community property
is distributed as between the parties by agreement or court order.
Family Code section 1100(e). Penalties for self-serving breach of FD behaviors can be severe - at
a minimum they will be half of the value of a particular asset plus attorney
fees, or where there was fraud, 100% of its value plus attorney fees.
Family Code section 1101. There may be other, independent,
grounds for sanctions - including attorney fees. Sanctions are the Holy Grail of
Time, Skill and Efforts
community property (CP) point of view, the essence of the marital relationship - absent a premarital
agreement saying otherwise - is that all time, skill, and efforts of each
spouse belongs equally to each as part of the community estate.
Family Code section 760 creates a rebuttable presumption, which lawyers call the time of acquisition
rule, that CP is created between DOM and DOS. This means that, subject
to a number of qualifications, all the fruits of either spouse's efforts
whether from employment or otherwise creates an as yet undivided pie in
which each of you hold an undivided one-half interest. This presumption
need only be rebutted by a
preponderance of the evidence, the lowest burden standard of proof. Likewise, all debts incurred during
marriage are joint, with limited exceptions like where someone gets the
asset that the debt relates to. California family courts must divide that
pie equally. The battle ground is about characterization, and arcane exceptions
Date of Separation
However, the window that courts are looking at is the period from the date
of marriage (DOM) to the
date of separation (DOS). Upon physical separation, your time, skill, and efforts become your own
separate property. We've written extensively about
DOS issues, as they are critical to defining what is and what is not community property,
but DOS is also important for purposes of determining the length of the
marriage for spousal support rights and obligations purposes.
Marriages of less than 10 years are considered short marriages under CA
law, and marriages in excess of 10 years are long-term marriages per
Family Code section 4336. Generally speaking, a
supported spouse is expected to become self-supporting within a period
equal to half the length of the marriage, except that as to long-term marriages they are expected to make reasonable
efforts to become self-supporting at the half the length of marriage point,
and may not be just cut-off. Again, we have many articles about these
issues that are far more detailed. This illustrates reasons why DOS is
so important. Often the proceedings need to be
bifurcated to determine DOS, because years pass between one person's date and the other's.
Separate Property and Reimbursements
Special problems arise where people own assets prior to marriage, or acquire
assets as gifts or
inheritances during the marriage, because the law presumes those are the
separate property (SP) of the receiver (called the separatizer). Often those monies are
commingled with CP funds, or are used to improve CP assets like a family residence. Maybe they
just evaporate for living expenses, or are used to pay debt. In some cases,
most notably involving
Family Code section 2640 which is a critically important exception to the general time of acquisition
rules governing the characterization and the division of community property,
the separatizer is entitled to get their money back, off the top, from
any asset that the separatizer can trace their funds to.
We have written a number of articles about tracings, which create their own special problems where they are necessary.
What happens to community property,
like a residence, that one party wants or occupies after the other moves out - or is kicked
out by reason of
DV restraining orders? What happens to marital debts, like a home or joint or separately named
credit card accounts, where there is a balance owing at DOS? Please see our blogs about
Watts credits/charges, dealing with CP that one party exclusively enjoys, and
Epstein credits, where one party paid joint debt.
Equal Division of Community Estate
Ultimately, the family court must divide the community estate, including its
debts, equally per
Family Code section 2550. Play around with
marital balance sheets to evaluate your circumstance. Sometimes this means that property may
have to be sold, but not always - particularly so long as the spouse who
wishes to keep an asset can buy the other spouse out. Valuing property
is itself a frequent point of friction that results in extra litigation
involving expert witnesses, like forensic business accountants where businesses
or professional practices are involved. Sometimes the court appoints its
own expert, called an
Evidence Code section 730 forensic, in order to undertake an evaluation and report back that expert's
findings. Those findings are not binding upon the court, though they have
a big influence on settlements and court rulings.
Enough for tonight. I'll be back!
Want to read about the divorce process? Here is Part 2!
Author: Thurman W. Arnold CFLS, AAML