Palm Springs Law Blog

Friday, January 12, 2018

How to Survive a Divorce

The best of intentions just don’t work out, sometimes. The fantastic advance of legal same sex marriage was a euphoric event for so many in the LGBTQ community. Some who hadn’t quite thought it through were caught up in the excitement. Others were so committed to their long-time partnership they didn’t realize how marriage would change their relationship. And some, like many humans, just couldn’t stick out the legal and binding commitment.

So, what happens when two people are bound together under the law and one or both don’t want to be there anymore? In California, a dissolution of the marriage can be ordered by the Superior Court in the county of the Petitioner (the spouse filing the petition for dissolution). One spouse may file a petition, even if the other does not want to end the marriage.

The dissolution (disso) process doesn’t need to be terribly complicated if both spouses agree to the split and a fair division of property and debts they own together. A disso petition includes issuing a Summons to the other spouse (the respondent) and filing it with the family law division of the Superior Court. Usually, a hearing is not required if neither party is seeking spousal support or attorney fees.

The Petitioner must prepare a list of assets and debts as a basis for negotiating the fair division of everything. Nothing may be hidden. If one party believes the other is not making a full disclosure, the judge can order that all assets be documented or produced.

If both parties agree and accept the disclosures, a Marital Settlement Agreement (MSA) is usually prepared by the Petitioner’s attorney. Both spouses sign off on this, and it is filed with the court, along with an Order for the judge to sign. This concludes the dissolution process. After the family law clerk enters the judge’s order into the court records, the two parties are no longer spouses.

Most dissos are fairly straightforward and take from a minimum of 6 to an average of 10 or 12 months from start to finish. The parties’ lives go on during the process, and they can move right ahead as they divide up their assets and debts, separate their mutual interests, and leave their relationship behind.

Often, though, there are disagreements about how to divide assets – the family home, investment and retirement accounts, home furnishings – even the family dog or cat. Strongly held beliefs and emotional feelings can make it really tough to reach agreement on the division of property. It is especially difficult if one spouse came into the marriage with a lot fewer assets than the other.

The process here can sometimes escalate into a really complex set of actions, taking a year or two or more to resolve. Strongly-held differences between spouses may require more court hearings, and often involve mediation sessions with professionals trained to try to find common ground for couples who disagree. Only one thing is perfectly clear in these situations - the attorney fees will grow bigger with every step in the process.

From time to time, we hear about nasty divorces and property fights between celebrity spouses – often involving huge sums of money. But ordinary people dig in and refuse to agree to a settlement just as easily and often as the rich and famous. The value of their disputed property may be a lot less, and there may be no publicity, but the emotional toll, wasted time and relative financial expense are just as great.

In the end, there must be a fair and equitable division of marital property. California is a community property state. This means that most property acquired during the marriage and available to both spouses is shared equally, and must be divided equally. Property that was acquired by a spouse before the marriage is usually considered the separate property of that spouse, and may not be required to be shared with the other spouse.

This is where a married couple often has serious trouble understanding what “fair and equitable” means during a disso. The property to be divided is marital property, not usually separate property.

Tempers can begin to flare, and attorney fees start to balloon when there is a major disagreement about property division. Once in a while, it is found that separate property should be shared, to reach an equitable agreement for both parties. Such assets have to be reviewed in great detail, and attorneys often have to research the circumstances, locate relevant case law, and, ultimately, will need to secure the judge’s opinion and approval.

What can you do to survive a breakup and come away in one piece? Try these ideas:

  • No-one wants to plan for dissolution, but with divorce rates among the general population at 50% or more, it could definitely happen to you. If you did not create a Premarital Agreement before your marriage, enter into a Post-marital Agreement now. It will clearly identify the property that belongs to each of you and to you together as a couple. Then, if dissolution comes your way, you will have the basis for your Marital Settlement Agreement already prepared, and both of you will have a clear path to division of property and debts.
  • If dissolution appears to be in your future, go immediately to an attorney for advice about how to handle your financial affairs. An early understanding of your rights and the property that you share with your spouse can make a huge difference in the disso process, and greatly lower the cost of attorney fees.
  • Consider the options you have: An easy and smooth disso where both parties agree on division of property and debts; or a rocky road which will delay the dissolution of your marriage, and cost a lot of money. If you find yourself caught up in emotional turmoil because of disagreement about the breakup, find a good therapist who can help you through the process. The disso will proceed, whether you want it to or not. Take steps that help you navigate it with strength, not angst.

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