Divorce is a stressful event in anybody’s life, putting strain on one’s mental and emotional health, as well as finances and other resources, in addition to creating difficulties for children. There is really no easy way of doing divorce – it is simply something that needs to be worked through. However, a good divorce attorney can help you get through it with as little difficulty as possible. Before proceeding with a divorce, it helps to know as much about it as you can. Here is a brief, essential guide to divorce in California.
What Is a Certified Family Law Specialist?
It is not necessary for lawyers to specialize in any particular field. If you are planning a divorce, then any family law attorney with sufficient experience in divorce law will be able to help you. However, in the state of California, it is possible for lawyers to qualify as Certified Family Law Specialists, which means that they are recognized as experts in the practice of family, which includes divorce. When planning to go through divorce proceedings, it helps to get one of these certified specialists on your side. In order to get this certification, lawyers must go through a formal examination and must submit references. They must also continue to take legal education classes in family law and report consistently.
The California bar requires lawyers to complete formal examinations to demonstrate their expertise. Lawyers have to show that they have the required expertise in family law in order to prove that they have earned the right to practice as family law specialists. They have to write a comprehensive test that requires deeper expertise than the general bar exam. After passing this exam, Family Law Specialists must show that they have practical know-how as well as theoretical knowledge. For this reason, they must submit references to attest to their skill and knowledge, in addition to verifying their character and professionalism.
While any lawyer will offer you professional service, it is always best to choose one that has the highest level of experience and expertise in the applicable area of law you need. When it comes to divorce, this would be a family law specialist, and it is well worth seeking one out if you are planning to get divorced.
California has simplified the divorce process by establishing only two legal grounds for divorce: irreconcilable differences and permanent legal incapacity to make decisions. These two grounds can encompass a variety of specific causes. For example, one spouse may decide to end the marriage on account of adultery, but that is not considered a legal grounds for divorce. The divorce lawyer will want to know this detail, but as far as the court is concerned, the legal reason for the dissolution of the marriage is irreconcilable differences. The marriage must be shown to be irredeemable, regardless of the specific cause.
These two legal grounds are used to reach a judgment in a divorce case, whether it is contested or uncontested. Let’s examine the definitions of each of these terms a little more closely.
‘Irreconcilable differences’ is a term that refers to circumstances that a judge determines have ended the marriage. It can involve anything from a financial disagreement to adultery or abuse. Whatever the underlying cause may be, the divorce will be determined as having ended as a result of irreconcilable differences.
Permanent legal incapacity to make decisions refers to cases where a medical practitioner has determined that one spouse is unable to make decisions for him- or herself. This determination may come as the result of a traumatic injury or psychological disorder.
Technically, there is a third legal reason to end a marriage. California law makes it possible for a marriage to be annulled. In this case, the court rules that a marriage actually never happened or is not valid. There are several grounds for such cases, such as incest polygamy, or one of the spouses being underage at the time, or situations where force or coercion was used.
How is Wealth Divided in High Net Worth Divorce?
Divorces can get a great deal more complicated when one or both of the spouses – either individually or through the combined assets – can be considered as having a high net worth. A high net worth divorce is defined as one in which one or both parties’ assets exceed their expenses and financial needs. The asset structure is usually multi-faceted and it is not easy to determine what each partner is entitled to. There are several critical considerations that courts need to take into account when dividing wealth in these cases. These include:
- The needs of each party: The financial needs of each party are calculated more generously than they would be in ordinary divorce cases, in proportion with the high living standards that high net-worth couples are able to enjoy. The needs are met from the marital assets first. If this is not enough to meet all needs, non-marital property is considered.
- Valuing financial and property wealth: The total of all financial wealth, including bank accounts, pensions, investments, cash and equity funds, is taken into account when considering the division of assets. Property and land may be split between the two partners, even when one partner contributed to the purchase.
- Prenuptial agreements: Although these agreements are not legally binding, courts consider them carefully, because they state the partners’ proactive intentions regarding how assets should be divided in the event of divorce. The court will often uphold a prenup if it deems the terms to be fair and realistic.
- Hidden assets: it is not unusual for spouses to withhold financial information to gain an advantage during divorce proceedings. In some cases, independent forensic accountants can evaluate the assets to ensure fairness and transparency.
What Happens if a Spouse Hides Money During a Divorce?
What happens then if the forensic accountants find any discrepancies in the assets that the partners have disclosed? If it is found that one or both of the partners tried to hide any of their assets, it can cause a great deal of trouble for that partner, and possibly work in the other partner’s favor. Each party is legally required to divulge all of their assets, which means that failing to do so amounts to contempt of court. A judge may issue sanctions and require the spouse to pay the other’s legal fees, for example. The hiding of assets could even lead to a judge imposing higher alimony payments. In some cases, attempts to withhold assets during divorce can even lead to criminal charges.
It is never advisable to hide assets if you are heading for divorce. If you suspect that your spouse may be concealing assets, you should tell your lawyer, who will take you through the options you can use to ensure a fair and valid asset division process. This may include hiring a forensic CPA who specializes in finding hidden assets. Take steps to protect your financial interests, including efforts to uncover any assets your spouse may be hiding.
Getting divorced does not necessarily mean you have to go to court. You could settle amicably out of court, or you could use mediation if you prefer. Most people are not sure how to decide which of these options is appropriate for them. What is the difference between mediation and litigation?
The traditional route for most divorce procedures is to hire a lawyer and follow a process of litigation. In this case, you have to go to court and you have a lawyer who advocates on your behalf in an attempt to get you the most favorable outcome. Your spouse would then hire their own lawyer who would represent their best interests, and the two of them would fight it out on your behalf, first through negotiation and then, if that fails, by going to court and attempting to convince a judge to rule in either party’s favor.
Mediation is quite a different process. If you choose this option, you and your spouse will negotiate the settlement under the guidance of an independent, neutral third party, known as a mediator. The mediator’s role is to help both parties identify, negotiate and reach mutually acceptable agreements on the various issues and financial matters required to end their divorce.
Going through mediation does not necessarily mean that 100% of the issues need to be settled. It’s not an all-or-nothing situation. If the parties can agree to some or most of the issues, then that will make the rest of the process less complicated, and generally less expensive. In this case, the parties will still go before a judge, but you’re leaving fewer decisions in the hands of the court.
The Steps in The California Divorce Process
The divorce process in California can be broken down into ten steps:
- Preparing to file: At this stage, one or both spouses carefully consider the decision to file for divorce and whether it is the right thing to do. They may consider the pros and cons, meet with an attorney, copy important documents, remove personal items and important legal documents to a safe place, change various account passwords and do an inventory of household items.
- Filing for divorce: If you have decided to go ahead with the divorce, you and your lawyer would fill in and file a Summon (FL-110) and a Petition (FL-100). If there are minor children involved, they would also need to file a declaration related to your children’s residences over the past five years (Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act, or UCCJEA).
- Serving the divorce papers: Once the Petition, Summons and UCCJEA have been filed, these documents have to be served to your spouse, which simply means that copies of the documents are presented to your spouse by a sheriff or licensed process server.
- Response: Once the papers are served, the other spouse must review them and then respond.
- Temporary orders: These are issued to regulate certain aspects of the spouses’ dealings with one another while the divorce is still in process. Temporary orders may include orders in respect of child custody, child support, spousal support, use of property and legal fees.
- Financial disclosures: Spouses are required to disclose their assets using four different forms: FL-140, FL-141, FL-142 and FL-150. This step is a trick and radius one. All assets must be disclosed, but there is often a tendency for at least one party to try to hide one or more assets.
- Discovery: During this stage, you and your legal representation work to obtain relevant information from your spouse and their lawyer. Discovery can take place up to 60 days before trial.
- Settlement: Once discovery is completed, the two parties begin negotiations around the various terms of the divorce: child custody, visitation, child support, spousal support, property division, etc.
- Trial: If settlement cannot be reached, the case goes to trial in family court. Trial dates will only be settled once all other means of negotiation have been attempted.
- Post-judgement issues: Once the trial is concluded, you will receive a filed judgment back from the court, signed by the judge. You will also receive a separately filed Notice of Entry of Judgement. Once you receive these documents, you will know your divorce is final. You can then set about adjusting the details of your life to fit with your new marital status, such as changing your name, changing your will, refinancing property, etc.
Westover Law is a leading firm of family law attorneys in southern California. Our attorneys are here to assist with divorce in California. If you are about to go through the difficult process of permanent separation from your spouse, contact us and book a consultation with one of our divorce lawyers