5 Important Steps to Take When Contemplating Divorce

Posted over 4 years ago. Applies to California, 2 helpful votes

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1

Take Inventory of Your Community-Estate Assets

I cannot tell you how many times people come to my office only to tell me that don't have a clue what is in their community estate. The response is, "Oh, my husband handled all that stuff." In preparation, start reviewing and gathering as many documents that you can get your hands on, such as credit card statements, mortgage statements, car statements, insurance policies, pay-stubs, tax returns, bank statement, 401(k) papers, retirement and pension accounts. If concerned about taking the documents, then make copies. I would include separate property assets--just in case they turn out to actually belong to the estate. The problem that clients often face is the spouse is determined to hide assets and become very uncooperative when it comes time to "fully disclose" all the assets and debts.

2

Understand the Concept of "Community Property"

California is a community-property state. What this means is that everything acquired "during the marriage" is community property. There are a few exceptions, such as gifts, separate property, separate-property generating income, purchase of assets with separate property funds. The starting period for "community" is date of marriage. That's easy to determine. Not so easy to determine is date of separation because each party may have a different date. To keep it simple, date of separation comes from intention coupled with conduct. In plain terms, the day the marriage "died" for you or your spouse--and all acts from that date reflect that intention. To be clear, even if an asset was purchased by one person during the marriage and only their name is on the property, it is STILL community property--IF there are no exceptions--as listed above.

3

Think Twice About Anything You Do That's Connected to the Kids

One of the biggest issues that comes up in divorce is custody, visitation and child support. For a vast majority of parents, fighting over these issues is expected. A problem that complicates matters is a parent's conduct prior to or during the divorce process. For example, Mother leaves her home for a period of time to "rest", only to return to learn that husband has filed for divorce and is claiming that mom deserted the kids and has also filed a motion for sole physical and sole legal custody of the children--and requesting that mom pay child support. It is important to understand how your actions today can have unintended consequences tomorrow.

4

Educate Yourself in Contemplation of Divorce

The better educated and informed you are before you start your divorce the better off you (and your children) will be. For instance, if you know what the law says about spousal support, you don't have to fight with your spouse and/or spend time fighting about the issue. Another benefit of educating yourself is that you can determine, in advance, if you can handle the divorce by yourself, need an attorney to handle all our legal issues or need an attorney for maybe only one complex issue, e.g., dividing the pension or custody issues. (This is called unbundled services). Another benefit of learning about the divorce process is that you save money--lots of it (or get lots of money). For instance, you didn't know to tell your attorney or court that you provided $100,000 towards the down payment on the community property house--that came from your savings before marriage. This is important because you have a $100,000 reimbursement claim from the community estate. Knowledge is power.

5

Speak to An Attorney in Contemplation of Hiring an Attorney

Just because you can't afford to hire an attorney, doesn't mean you can't speak to an attorney in contemplation of divorce. Many attorneys provide free legal consultations. A good family-law attorney can identify all your legal issues, let you know what the law says about your legal issues and identify any red-flags, e.g., custody issues. For instance, when I do my free consults, I always ask them what they believe the community estate is. I do this because I am surprised by how many times I am told that they don't know or tell me they don't have much because they believe it belongs to their spouse, e.g., the 401(k) of $300,000! Or, are convinced they will never receive spousal support because their spouse "said so." So, even if you don't plan on hiring an attorney because you can't afford one or feel you don't need one, it's a good idea to at least consult with an attorney. Worse case-scenario, they might charge you for an hour of their time which, in my opinion, money well spent.

6

Conclusion

A little information can go a long way. Work smart and you will get your just deserts--in ways that count to you and your children. From my professional experience, the less you know or understand about the legal process, the more expensive it is--to include emotionally and physically. In today's information age, it is so easy to educate yourself. For instance, Avvo has many competent attorneys willing to answer your questions, there are many reasonably-priced, easy-to-read books on the subject. From my professional experience, I cannot over-emphasize the importance of educating yourself--whether or not you hire an attorney.

Additional Resources

Below are web links to some great books. If you are on a budget, I recommend you make contact with an attorney who is willing to give you a free 30-minute consultation. Second, purchase some good and current books on the subject. For instance, Nolo (a legal publisher for the consumer) has excellent reasonably-priced books on the subject. Two books in particular I recommend are "Nolo's Essential Guide to Divorce" and "Divorce and Money. Other books by Nolo include "Divorce Without Court", "Divorce After 50", "Building a Parenting Agreement", How to Do Your Own Divorce in California" . . . and many others. Besides Avvo.com, you can also find an attorney in your area through the State Bar of California's website.

Nolo--"Essential Guide to Divorce"

Nolo--Home Page for Divorce & Family

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