Divorce: A Survival Guide by Dianne R. Ophelia
VIII. General Questions
- I've Been Served With Divorce Papers. What Should I Do?
- Are There Any Restrictions Once The Divorce Case Begins?
- What If The Divorce Is My Spouse's Fault?
- Is Our Date Of Separation Important?
- Miscellaneous Questions?
1. I've Been Served With Divorce Papers. What Should I Do?
Read the papers carefully. Look for any court dates or custody mediation dates. Generally you
have 30 days to file a “response”; however, sometimes a mediation or court date is set earlier
so you should take action right away to protect your legal rights.
You should contact an attorney immediately and set an appointment for a consultation to
understand your rights and obli¬gations and determine your alternatives. When you call, tell
the attorney’s office when you were served and whether you have any court or mediation dates.
It generally takes a few weeks to schedule an appointment with an attorney, so do not wait
until the last minute.
The purpose of the consultation is to help you understand the process, watch for any major
pitfalls and determine whether you feel comfortable with the attorney. Either way, you will
learn what to expect and know how to protect yourself.
If you have been unable to locate and retain an attorney and time is getting short, you can
call your spouse’s attorney’s office or whoever filed the papers (shown at the top left corner
of the documents), and ask him/her for an extension of time to file a response. Generally, they
will accommodate you; however, be sure to ask that a written confirmation of the extension be
sent to you so there are no misunderstandings.
If a court date has been set and you have not been able to retain an attorney, you can ask to
continue the court date. If your spouse or their attorney refuses to give you a continuance,
show up in court and tell the Judge you need additional time to retain an attorney. A continuance
will almost always be granted. Courts believe that people should not have to represent themselves
if they desire an attorney.
Also, be sure to read the back of the “summons.” There are important restraining orders that
became effective automatically as soon as you are served.
2. Are There Any Restrictions Once The Divorce Case Begins?
Once you file divorce papers, you cannot take certain actions unless you have the written
consent of your spouse or an order of the court allowing you to do so. These orders are
Automatic Restraining Orders. The orders bind you when you file your papers. They bind your
spouse when your spouse is served with divorce papers.
The restrictions are listed on the back of the document called the “summons,” and arc as
follows:
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You cannot remove your minor child or children from the State.
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You cannot cash in, borrow against, cancel, transfer, dispose of, or change the beneficiary
of any insurance, including life, health, automobile, and disability insurance.
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You cannot transfer, borrow against, conceal, sell or dispose of any property, real or personal.
This includes community and separate property.
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You cannot create a “non-probate” transfer or modify a “non-probate” transfer in a way that affects
the disposition of property without meeting certain requirements.
Now for the exceptions:
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You can sell or use property as security for a loan if it is necessary for you to pay
for necessities of life. This means housing, transportation and food on the tabic, not
items like shoes or sporting equipment.
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You can sell or borrow against property in order to raise money to pay an attorney or
court costs.
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You can create a non-probate transfer, for example, terminate joint tenancy on your house,
if you file a notice with the clerk and serve the notice on your spouse.
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You can transfer, sell, encumber or otherwise take ac¬tions that are in the “usual course
of business.”
If you plan to make any extraordinary expenditures, you must notify your spouse at least five
business days before incurring the expenditure and account to the court for the expenditure.
3. What If The Divorce Is My Spouse's Fault?
California is a no fault divorce state. Therefore, whatever the reason for the divorce,
even if your spouse committed adultery, is an alcoholic, or is physically abusive, the
courts do not care when it comes to dividing the assets. Courts will neither listen to,
nor consider fault-related evidence. You will only receive one-half of the assets even
if you believe your spouse is 100% responsible for the divorce.
There are only two instances when a court will listen to some evidence of misconduct.
The first is if custody is an issue and the acts of your spouse have an adverse impact
on your child. The second instance is where there has been physical abuse. Depending
upon the circumstances, the innocent party may be entitled to additional spousal support
payable for a longer period of time.
4. Is Our Date Of Separation Important?
Your date of separation can mean a substantial financial benefit or detriment to you
depending upon which side of the fence you land. As of your date of separation, all of your
earnings are your separate property which you do not have to share with your spouse. This
includes any money you may contribute to your pension plan from earnings after separation,
any bank accounts you may establish with your income after separation, assets you may purchase,
etc.
Also, all debts you incur after the date of separation are your separate debts. If charges
are made on a credit card after separation, the spouse making the charge will be responsible
for payment.
So you ask, “How does the court figure out our date of separation if we disagree?” Disputes
regarding the date of separation are many times the only reason a case does not settle and
ends up in court.
The general definition of the date of separation is when both spouses are aware that the marriage
is over and there is no chance of reconciliation. If the date is disputed, the Judge will look
for (1) a subjective intent to permanently end the marriage by at least one spouse and (2)
objective conduct supporting that intent. Objective conduct can come in all forms, and numerous
cases have given us examples. Some of the major factors a court considers arc as follows:
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Are you living in two separate houses? If you are liv¬ing in the same house, the court presumes
that you are not separated.
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Did you sec a marriage counselor during the disputed time?
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Did you socialize as husband and wife?
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Did you vacation together?
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Did you dine together?
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Did you cook or do laundry for your spouse?
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Did you have intimate relations?
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Did you maintain joint bank accounts or make joint investments?
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Did you pay your bills together?
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Did you file joint tax returns?
Remember, just because you arc living apart, the date of separation is not a “for sure”
unless you are very careful about your conduct. You must communicate to your spouse and
the world that you consider your marriage over with no chance of reconciliation to prove
a date of separation. Some people choose to give their spouse written notice of their
intention to separate, to assure there is no misunderstanding. This sounds difficult and
harsh; however, the case law has demanded no less.
5. Miscellaneous Questions?
Some other common questions are:
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How Long Does It Take To Get A Divorce? You must wait at least six
months from the date of service of the divorce documents on your spouse. The divorce
can take longer, but cannot be any shorter than the six month waiting period.
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Where Should I File For Divorce? You must be a resident of the State of
California for six months and the County in which you file for three months before you
can begin a divorce action. You can file a legal separation action without the County
residency requirements.
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Does My Spouse Have To Sign For The Divorce? Everyone is entitled to a
divorce even if his or her spouse does not want to agree to it. A process server serves
divorce papers upon the spouse. He or she does not have to sign anything. If he/she refuses
to take part in the divorce process, you are still entitled to go forward with the action
and obtain a divorce.
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Do I Have To Prove A Basis For The Divorce? Almost all divorces in California
are granted on the basis of “irreconcilable differences.” Either at a court hearing or in
documents filed with the court, you state under penalty of perjury that irreconcilable differences
have arisen in your marriage, causing an irremediable breakdown. Further, you state that no
counseling or waiting period will help restore the marriage. That is all that is required.