Before Filing For Divorce
Do I have to prove my spouse is at fault to get a divorce?
In California, you do not have to prove that your spouse is at fault to get a divorce. The statutory grounds are irreconcilable differences, and no one really asks you what those differences are. It could be you don't like the way your spouse butters your toast. Irreconcilable differences.
I've decided to get a divorce. What's my first step?
Once you've decided to get a divorce, your first step is to ask yourself: What process do I want to use to get a divorce? There is a default divorce process, and it's running to court and going to Family Law court and hiring two lawyers and letting the two lawyers take over your life and asking a judge, who doesn't know you, your spouse, or your kids, to make the decisions that maybe you want to make for yourself. That's the default divorce process. But you also have a choice to opt out of the judicial system and go into collaborative family law or go into mediation as a first step in divorce proceedings. It's important to sit down with your spouse and ask him or her: "What do we want to accomplish here?" "How much money do we want to spend on lawyers and what can we do with the money that we don't spend on divorce lawyers?" "How can we spend that?" "How can we spend that on ourselves?" "How can we invest that in our children's' education?" So the divorce process, the choice is the divorce process.
What questions should I ask a prospective divorce attorney?
When you have your first meeting with your divorce attorney, ask them questions such as how long they've been practicing law, how long they've been practicing family law. Ask the divorce attorney whether they have any special training, mediation skills, collaborative training. Ask the divorce attorney the question why you should hire them. Remember, when you hire your divorce lawyer, they work for you; you don't work for them. So, it's a job interview and the divorce attorney needs to give you a reason for you to part with your money and hire them. Ask them.
If I can't locate my spouse, how can I serve divorce papers?
If you don't know where your spouse lives you can't personally serve your spouse with divorce papers. There's a process in California called Service by Publication. In order to do that you need a court order to serve the summons and petition by publication in a newspaper. In order to qualify for Service by Publication, you have a number of steps to take to prove to the court you've done everything you can do to find your spouse. Once you complete the steps, you get an Order of Publication. It's published in a newspaper once a week - for around four to six weeks - and at the end of that process, you've got service for your divorce.
Do I have to go to court in order to get a divorce?
I am often asked, "Do I have to go to court to get a divorce?" And the answer is: "Maybe." And it really depends on what you're working with. For example, if you have a situation where you and your spouse have an agreement, or over time come to an agreement, the agreement is reduced to a written document. It's submitted to court; you don't have to go. If you and your spouse can't agree, you're going to court because you are asking the judge to make the call. And that requires you to be in court. If you are a self-represented party, you are speaking for yourself in court. If you are represented by a family law attorney, then the lawyer is usually doing the talking for you in court. Sometimes the court puts people on the stand, and they're questioned. And they are asked to give answers to questions. So whether or not you have to show up in court really depends on what you are working with... right off the back.
What is an "annulment" and who is eligible for it?
An annulment is a legal declaration that the marriage never happened. So when your marriage is annuled, you are not divorced, you've never been married. As opposed to a divorce, when you are divorced, you are single, but you've already been married and divorced. It's not used very often in California, there are very limited and specific grounds. They include a marriage that was based in fraud; a marriage where one of the parties was not 18 when they got married; a marriage that's bigamous. Maybe somebody married somebody who was already married and they have never been divorced. So those are some of the statutory grounds. You should consult with independent legal counsel to see if you qualify for an annulment.
What is the difference between separation and divorce?
There are two kinds of separations. A physical separation takes place when somebody moves from one house to another. A legal separation is different from a separation. A legal separation is a process that is identical to a divorce in almost every way. It's identical because it divides your assets, divides your debts, establishes spousal, parenting and child support if appropriate and arranges restraining orders. So, a separation is the same as a divorce, except at the end you're still husband and wife.
Why would I want a legal separation?
Since a legal separation is a process just like divorce, it's a process that takes time and money. Some people would want to know, “why would I even want to consider a legal separation?” Different people, different reasons, but some of the reasons for legal separation are: Religious. Some people for religious purposes can't get a divorce. Some people have marital problems or financial burdens and they want to work on their marriage, and every time they start working on the marriage these other issues come into play, like financial issues. And I've had couples that got a legal separation to strip all the issues out except the marriage, and it gave them an opportunity to work on the marriage and decide whether they wanted to stay married or not. Some people want a legal separation because it affords them an opportunity to qualify for insurance, to go their separate ways and still be on their spouse's insurance, maybe they can't get medical insurance any other way. So different people have different reasons for legal separation.
How do I obtain a legal separation?
If you decide that you want a legal separation it would be the same process as deciding that you want a divorce. You'd either consult with a family law lawyer, a mediator, a paralegal or your local self-help center. A separation is the same process, so you've got the same forms to fill out and the same steps to take.
