(805) 888-7230 tony@oskofamilylaw.com

Dissolution Of Marriage

First, let me say that I am truly sorry you are here. Getting divorced is often one of the most difficult things we ever have to go through. At the same time though, I sincerely hope I can be of assistance to you.

In this section we discuss some of the more important yet common big-picture questions that people have when they have made the decision to divorce, or when they have been served a petition for dissolution by their spouse. Please note this section is by no means all-inclusive. You do not need to be buried in legalese; that’s my job. Dissolution (divorce) can be and often is a complex process, and this page represents a simplified version of that process. To learn more about other issues that may affect your divorce, please visit Areas of Practice.

 

How Does The Divorce Process Work?

While there is a general procedural path most divorces travel down, your individual circumstances may require something different. For example, a marriage of less than 5 years with few assets and no kids may be better served by way of summary dissolution, which is a simplified divorce process. On the other hand, some circumstances constitute an emergency and so an ex parte motion might be appropriate. Whatever the case, your circumstances, while likely bearing similarities to other divorce cases, are still unique. You are the one and only you, your facts are exclusive to your matter—no two divorces are ever identical—so your case deserves personalized attention.

 Generally though, the divorce process begins with the filing of a petition for dissolution, a summons, and other documents relevant to your circumstances. The petition tells the Court you want to divorce your spouse, while the summons document is what ultimately notifies your spouse that you are filing for divorce. It is important to note that there are certain timing and process-serving requirements that must be met when petitioning for dissolution (filing for divorce), all of which can have a negative effect on your case if not done properly. This applies to the person being served with the petition as well.

 Again, petitioning for dissolution may seem relatively simple. However, you may be in a situation where you need to request child support, spousal support, and obtain custody orders in your initial filing. You may want to ensure that your spouse cannot sell off any community property (houses, land, rental properties, or vehicles and other things that were acquired during the marriage). In addition, you will probably want to include your initial financial disclosures in your initial filing, which may include taxes, bank statements, pay stubs, and much more.

 To say that all of this can become quite overwhelming is an understatement whether you are the one petitioning or being served. It is easy to miss something, fail to include a necessary declaration, or forget to include a form.

 Most of the time, petitions can be amended (fixed), but that will delay your matter, which essentially means having to start the filing process over again. This may be of little consequence, or it can be quite detrimental. For example, if you are in dire need of child or spousal support (or both), or if your kids are being withheld from you, then you want to get these matters in front of a judge as soon as possible. Just as importantly you want someone who can effectively argue these issues for you.

 Once your petition has been filed and approved by the court (“confirmed”), you will receive a court date. The opposing party must be served within a certain time so that they have a fair opportunity to respond. When your hearing date will be is largely unknown at the time of filing. It depends on the Court’s calendar, but it will usually be anywhere from 30-90 days from the time your petition was filed. So keep this timeline in mind as you consider filing for divorce. You will definitely want to plan ahead and anticipate what your financial situation will look like once you’ve filed your petition or once you’ve been served with your spouse’s petition.

 The hearing date is important because that’s when the temporary orders you requested may (or may not) be given. Note that although these orders are referred to as “temporary,” there is no expiration date on them. That is, the order(s) remain in place until a different or permanent order is given, or until the parties come to a mutual agreement that garners the Court’s approval (a “stipulation”).

Making Your Divorce Less Difficult

No one wakes up in the morning one day and decides on a whim that after taking the kids to school and going to work, that they’re going grab lunch, swing by the courthouse real quick, and file for divorce. If you’re here, there’s a pretty good chance this has been a long, agonizing decision-making process for you. You may have been mulling this over for months or maybe even years.

There’s also the possibility that some abrupt, jarring event has necessitated divorce and now you’re suddenly trying to cope with a million things at once. Or maybe after talking about it for some time with your spouse, you’ve both come to an amicable decision that the marriage needs to be over. Whatever the case, I would be lying to you (and so would anyone else) if I told you your divorce will be without difficulty. That said, it does not mean the process has to be a strife-ridden slugfest—quite the contrary. There are things you can do to make your divorce less difficult.

Be as civil as possible with your spouse. This can be very difficult, and sometimes the other side can make it downright impossible. But if you get it set in your mind that you are the one who is going to handle the divorce with maturity, it can often influence the other person to act similarly. This may also serve to help you in court as well. No judge likes to hear that the party’s have been acting maliciously towards each other.Do not speak poorly of your spouse in front of the kids. This can have long term, serious emotional repercussions for them, and they may very well end up resenting you for it. Generally, kids love both their parents and it is horribly unfair to put them in the middle of something that is already causing them great anguish. This could also harm your case by causing you to lose visitation time, which in turn can affect the amount of child support you have to pay or receive. Please keep your children’s well-being and best interest at heart at all times.

Do not try to hide assets (money, property, etc.) from your spouse. Doing so may constitute marital fraud, which may lead to losing the very things you were trying to hold onto.

Pay your spousal and child support. This is yet another reason why it’s important to see an attorney as soon as possible after physically separating from your spouse. You need to understand before too much time passes what your obligations are and what you are entitled to. Failing to provide for your spouse and children can lead to arrearages, and even prior to a court order may lead to retroactive payments, which add up fast. Most importantly, your kids need to be provided for and withholding money will only serve to harm them.

See a marriage and family therapist. This is a good idea for both you and your children. If you do have kids, it’s probably best to see a therapist before you tell them about the divorce. A therapist is likely better qualified to guide you with respect to breaking the news of the divorce to your kids than any lawyer.

Housekeeping Matters: secure your separate property (property acquired before the marriage or by gift or inheritance during the marriage), and make sure it’s in a safe place. Also, you should change your computer and phone passwords, and ensure your spouse doesn’t have access to your credit. Doing these things can save a lot of headaches both now and down the road.

Know that this will be over someday. Divorce can be very difficult, but you will make it through, and things will get better. It isn’t always easy to keep this in mind, but being able to think long-term can be helpful.

Do I Need An Attorney Or Can I Handle My Divorce On My Own?

The short answer is that you are not required to hire a lawyer when you get divorced. However, the better question is this: should I handle my divorce on my own? And the answer to that is probably not.

It is absolutely vital to know not just your rights, but your obligations as well. This helps you make the right decisions not just in a legal sense, but also in learning how the process is going to work, which can give you some sense of what is going to happen with you, your kids, your home, and everything else involved in your matter. It can also be a sobering moment for those who believe they are entitled to more than they actually are. What’s meant by that is that part of an attorney’s job is to set realistic expectations for you in order to avoid as many unpleasant surprises along the way as possible.

There is a lot of insecurity and uncertainty involved when it comes to dissolution, and meeting with an attorney can provide some peace of mind. What happens so often is that people will leave a consultation feeling relieved and thinking, “Okay, my world really isn’t going to end.” Your attorney, whether it’s me or someone else, should be a trusted confidant who will help you through your divorce with all your rights, property, and sanity in

What Is Discovery?

Most people actually don’t ask what discovery is, but in some cases it is good to know about so that you can br prepared if it does become an important aspect of your case. So here’s a quick overview:

Discovery is the formal method of obtaining relevant information from your spouse. Potentially relevant items you want to obtain from your spouse may include business records, medical records, or any other information that may affect the outcome of your matter.

In divorce cases, oftentimes little discovery is needed (which keeps your legal bills much lower), while in others, extensive discovery is required. When extensive discovery is needed, it can be because one spouse is suspected of failing to disclose certain assets or information about assets. For example, a spouse who owns a business may be in the habit of hiding large amounts of cash in order to avoid paying taxes, and therefore may attempt to hide these assets during dissolution proceedings as well. This matters because income is such an all-important factor when determining spousal and child support, and in the above example there could be considerable community property income that the non-business owning spouse is entitled to. So as you can see, formal discovery can be almost a non-factor in your case, or it may be the factor that dominates it.

There are different methods of discovery ranging from depositions to requests for production of documents to special interrogatories (questions designed specifically for your spouse) and more. What method is appropriate and the time and costs for each depends on your circumstances.

There is much, much more to serving discovery than what is written here, but again, most dissolution matters will not warrant extensive discovery, so you don’t need to let this section scare you.

 

Will My Case Go To Trial?

The good news is that a great majority of dissolution matters settle before going to trial, and you and your spouse will have every opportunity along the way to have some kind of control over the outcome. Going to trial is expensive, time consuming, stressful, and then the judge will end up having to make decisions for you.

You and your spouse can agree to nearly anything, and as a very general proposition, that usually leads to the most satisfactory outcomes. You can agree to spousal and child support, custody and visitation, and the division of assets. However, negotiating is still hard work where you’ll want an attorney who is an experienced negotiator working for you. It can become all too easy to finally give in to your spouse’s demands in order to just make it all end.

The fact is that when it comes to settling, you will most likely have to make compromises, but you need to make compromises you can live with, which means thinking for the long term. You do not want to take a deal now that will have detrimental consequences just a year down the road. You want an agreement that is durable and as beneficial to every person involved.

Unfortunately though, a mutually beneficial settlement isn’t always possible. For example, a spouse who abuses drugs or alcohol, or who is abusive to your children should not be allowed to have unsupervised visitation until they have successfully sought treatment. You should not have to give up a disproportionate share of community assets just to appease your spouse. In other words, there are some things that you should be willing to go to trial over; and if that time comes, I promise that we will be prepared to fight that battle and expend every available resource to win it.

As I said at the beginning, this page is not meant to be an all-inclusive, detailed dissertation on divorce. You do not need to be overwhelmed right now. Undoubtedly though, you will have many more questions along the way, and I look forward to discussing those questions with you. Please feel free to call so we can discuss your case or set up a time for you to come in for a free consultation.

This page is for informational purposes only. It is not meant to be advice for your specific matter and does constitute the establishment of an attorney-client relationship.

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