Winifred Whitaker
Melrose Law Center
400 South Melrose Drive, Suite 102
Vista, CA 92083-6632
Tel: (760) 726-6777 Fax: (760) 726-6781
letters@divorce4you.com
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The purpose of this page is to provide for your better understanding: how a divorce advances procedurally; your substantive rights and obligations; the psychological impacts of a divorce; and, other important matters. Much of the information may be difficult to understand so I summarize as set forth below.
- Procedural Steps of a Divorce
There are generally four steps involved in a divorce:
- The First Step
The first step in preparing for a divorce is the procession of the paperwork. This generally includes preparation of the following pleadings:
(1) Summons;
(2) Petition;
(3) Order to Show Cause - pleading for the purpose of requesting relief at the first hearing;
(4) Temporary Restraining Orders;
(5) Declarations;
(6) Income & Expense Declaration;
(7) Response; if appropriate; and
(8) Responsive Declaration to Order to Show Cause, if appropriate.
Following the first consultation with prospective clients, we generally prepare all necessary paperwork in order to either initiate the processing of the divorce or to respond to the Petition for Dissolution. The pleadings are then generally served upon the other party. The purpose of the service "starts the clock ticking." Once the pleading are served upon the other party, the final Judgment of Dissolution can be granted, at the earliest, six (06) 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.
- 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:
(1) Spousal Support;
(2) Child Support;
(3) Child Custody and Visitation;
(4) Restraining Orders;
(5) Use of the Residence;
(6) Joinder of any Pension Plans;
(7) Request for Attorney's Fees and Costs; and
(8) Any other miscellaneous relief which may be necessary in order to maintain the stability for benefit of the parties and children.
The first hearing will usually 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 Court generally will not take testimony at this time. If custody or visitation is an issue, the parties will have attended Family Court Services for mediation. The recommendation of the counselor will be submitted to the Court for review.
The purpose of the hearing is to maintain the status quo, to ensure the children and the supported spouse have sufficient financial resources to maintain the necessities of life, and to balance between households a common standard of living.
- 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 ask questions of your spouse for the following purposes:
(1) To secure information;
(2) To solidify testimony so it may not be changed at future hearings or trial;
(3) To obtain necessary documentation to adequately present your case; and,
(4) For the purpose of evaluating witnesses.
After the deposition, many times subpoenas 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. If the settlement offer is accepted, or amendments thereto are agreeable to all parties, a settlement agreement will be prepared. No offer of settlement will be made without your knowledge. The settlement agreement essentially indicates which assets will be allocated to the wife, and which assets will be allocated to the husband. It will address the issue of custody and visitation, together with support and all other matters. the settlement agreement is filed with the San Diego Superior Court in the form of a binding Court Order.
- The Fourth Step
If, however, the case will take longer than three hours, it is set on the "long-case" calendar. Under this procedure, the San Diego Superior Court will assign you a Mandatory Settlement Conference date approximately six (06) to eight (08) 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 practicing attorneys who limit their practice to Family Law. These attorneys or the Judge will review our settlement conference briefs which we will have prepared in advance, and will review the position of both sides with respect to all issues. they will give a recommendation for the purpose of helping the parties resolve the case. If not resolved, the case will proceed to trail, usually within forty-five (45) days of the settlement conference.
- Uncontested Divorce
- Substantive Rights and Liabilities in a Divorce
(1) Gifts;
(2) Inheritances; and,
(3) Personal Injury Awards.
There are various exceptions and refinements to the general rules set forth above which we will review with you for the purpose of characterizing assets as either separate or community property and dividing them.
- Restraining Orders
Once the Summons and Petition for Dissolution of Marriage have been filed with the 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 order are issued automatically and apply in every case. The restraining orders prevent the parties from:
(1) Removing the minor child or children of the parties, if any, from the state without the prior written consent of the other party or an order of the Court;
(2) Cashing, borrowing against, canceling,
(3) 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 necessities of life.
You must notify each other of any proposed extraordinary expenditures at least five (05) business days prior to incurring these extraordinary expenditures and account to the Court for all extraordinary expenditures made after these restraining orders shall preclude you from using community property to pay reasonable attorney fees in order to retain legal counsel in the action.
- Psychological Aspects of a Divorce
I highly recommend Till Divorce Do Us Part [Glenbridge Pub. Co. (1996)] by Beverly J. Grottkau, Ph.D., and Eva Augustin Rumpf, M.A. This "process" book's focus is on the troubled marriage facing the threat of divorce and provides a broad range of awareness of the different emotional (including the grieving process), legal and financial issues which invariably surface so that the client will be better prepared when and if the time comes to obtain a lawyer. It also provides effective strategies for minimizing the psychological trauma to children of divorce.
Dr. Grottkau aptly states, "You don't just go into court and say, 'Goodbye spouse.' You've got to be a well-informed consumer of the divorce process." Copies are available in our office.
- Epstein Credits
On the other hand, income earned by either party after 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 that 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 date of separation, with monthly statements thereafter, and the canceled checks that are used to make payments following the DOS. You would then be in a position to fill in the "Epstein Chart."
An additional "accounting" problem arises when charges on a joint account are made after DOS. The problem is 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. So as to avoid this problem, it is best to make charges after the date of separation on accounts which have no community obligations outstanding.
- Joint Credit Cards (Community Property v. Contract Law)
Under such circumstances, both spouses are jointly and severally liable for the obligation, under the contract they both signed. The creditor (normally a bank) 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.
- Conclusion
Sincerely,