Overview of Dissolution Process

The purpose of this handout is to set forth a general overview of the legal procedure of a marital dissolution, your substantive rights and obligations, the psychological impacts of a divorce and other important mailers. Some of these items we discussed in our prior conferences. Much of the information may be difficult at best to understand and/or recall in one session. Accordingly, I have attempted to summarize our discussions as more specifically set forth below.

Procedural Steps of a Divorce

There are generally four steps involved in a divorce:

1. The First Step

The first step in preparing for a divorce is the processing of the paperwork. This generally includes preparation of the following pleadings:

  1. Summons;
  2. Petition;
  3. Order to Show Cause pleadings for the purpose of requesting relief at the first hearing;
  4. Income and Expense Declaration;
  5. Response, if appropriate;
  6. Responsive Declaration to Order to Show Cause, if appropriate; and
  7. Commence preparation of a Declaration of Disclosure and Schedule of Assets and Debts.

Following our first meeting, we generally prepare all necessary paperwork in order to either initiate the processing of the divorce or to respond to the Petition for Dissolution. If we are initiating the marital dissolution, we will, among other things, legally serve them on the other party. The purpose of the service "starts the clock ticking". Once the pleadings are served upon the other party, the Judgment of Dissolution terminating marital status can be granted, at the earliest, six months from the date of service. The purpose of the sixth month waiting period is to encourage reconciliation between the spouses, and if in fact, reconciliation occurs during this period, kindly contact our offices and we will see that all paperwork is stopped. A dissolution judgment can be processed before the six-month period; however; the marital status will not terminate until the six-month period passes. It is very common that the settlement and/or trial process delays the process to judgment well beyond the six-month period. In that case, it is possible to separate the marital status from the remaining issues and seek a termination of marital status before the remaining issues are fully resolved.

2. The Second Step

After the pleadings have been drafted and served, the next step is the Order to Show Cause, the initial hearing. This hearing is generally for the purpose of obtaining court orders for temporary child/spousal support, custody/visitation, attorney fees, and use of asset orders so as to maintain a status quo the parties can live by until either a settlement and/or trial. At the initial hearing, the following issues are usually addressed:

  1. Spousal support;
  2. Child support;
  3. Child custody and visitation;
  4. Restraining orders;
  5. Use of the residence, vehicles and other assets;
  6. Joinder of any pension plans;
  7. Request for attorneys fees and costs; and
  8. Any other miscellaneous relief, which may be necessary in order to maintain the stability for the benefit of the parties and children.

The first hearing will usually occur within four to six weeks of the date the pleadings are initially filed with the Court, absent any continuances. At this hearing, the lawyers will argue the case, and the Court generally will not take testimony at this time. If custody or visitation in an issue, the parties will have previously attended Family Court Services (FCS) for mediation. At FCS, you and your spouse will attend to come to an agreement regarding the custody and visitation issues. If an agreement cannot be reached, the Family Court Services counselor will make a written recommendation. The recommendation of the counselor will be submitted to the parties, their attorneys, and 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, if possible, a common standard of living.

3. The Third Step

The third step involved in dissolution of marriage is generally the discovery phase. This phase includes document production requests, interrogatories, which are relevant questions concerning issues if your case presented to your spouse, subpoenas and, if necessary, the taking of depositions. At a deposition, an attorney asks questions of the deposed party concerning the case. A court reporter is present. The court reporter takes down all of the information and later prepares it in a booklet form. The deposed party is placed under oath by the court reporter. The deposition may be conducted in our offices or the offices of the opposing counsel. At a deposition, questions are generally asked 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. To evaluate 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, hopefully the emotional involvement of the parties has subsided and sufficient information has been obtained to commence discussing settlement. If this is the case, we will then attempt to propose 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. The Law Office of Marilyn Bierer will not tender an offer of settlement without your knowledge. A settlement agreement essentially indicates which assets will be allocated to the husband, and which assets will be allocated to the wife. It will address the issues of custody and visitation, together with support and all other matters. The settlement agreement is filed with the Court in the form of a binding Court order.

4. The Fourth Step

If the dissolution proceeding cannot be resolved by stipulation, the matter will proceed to the fourth step, which is trial. If the trial is expected to be shorter than three hours, it will be placed on what is called the "short-cause" calendar. The Court hears this short-cause calendar on Fridays. You are generally assigned a date for trial within four months from the date on which the trial is requested.

If, however, the case will take longer than three hours, it is set on the "long-cause" calendar. Under this procedure, the Court will assign you a mandatory settlement conference date approximately six to eight months from the date on which the trial is originally requested. At this mandatory settlement conference, we will be required to meet with two practicing attorneys who limit their practice to family law. These attorneys 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 trial, usually within forty-five days of the settlement conference.

5. Uncontested Divorce

The above-described procedures outline the general steps utilized in a contested divorce proceeding. If in fact you feel this matter can be settled from the very beginning, our office encourages sending out a settlement letter along with the initial pleadings. This provides the other party with an opportunity of addressing the issues in a constructive approach aimed at expeditious settlement. That has the obvious advantage of saving attorneys fees, costs and emotional distress to both parties. If you feel you have inadequate information with which to make an offer of settlement, it is wise to wait until after the discovery procedure before offering settlement.

6. Substantive Rights and Liabilities in a Divorce

A schematic diagram of the substantive rights and liabilities with regard to a divorce are reflected on Exhibit B enclosed herewith. More specifically, those assets acquired to you prior to your marriage are usually confirmed to you as your sole and separate property, free and clear of any interest of your spouse. So also are those assets you acquire after the date of separation (DOS).

Those assets accumulated by you during the course of the marriage are generally characterized as community property. Community property assets are normally divided equally between the husband and wife. There are certain exceptions as follows:

  1. Gifts;
  2. Inheritances; and
  3. Personal injury awards

There are considerable exceptions and refinements to the general parameters set forth above, which we will be reviewing in this case for the purpose of characterizing and dividing assets.

7. 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 orders are issued automatically, and apply in every case. The restraining orders restrain the parties from

  1. Removing the minor child/children of the parties, if any, from the state of California, without the prior written consent of the other party or an order of the Court;
  2. Cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage including life, health, automobile and disability held for the benefit of the parties and their minor child/children; and
  3. Transferring, encumbering, hypothecating, concealing, in an 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 the necessities of life.

You must notify each other of any proposed extraordinary expenditures at least five business days prior to incurring these extraordinary expenditures, and account to the Court for all extraordinary expenditures made after these restraining orders are effective. However, nothing in the restraining orders shall preclude you from using community property to pay reasonable attorneys fees in order to retain legal counsel in the action.

If you have any questions with regard to the meaning of these restraining orders, do not hesitate to contact me.

8. Psychological Aspects of a Divorce

Elizabeth Kubler Ross has authored a treatise upon the stages of death and dying. These stages appear to also be felt by most persons during the divorce process. These stages occur as follows:

  1. First Stage: denial and isolation;
  2. Second Stage: anger;
  3. Third Stage: bargaining;
  4. Fourth Stage: depression; and
  5. Fifth Stage: acceptance.

Many experts believe spouses in dissolution of marriage proceedings go through the same stages. If true, this process would have a direct effect on the ability of the spouses to communicate with each other. Such communication is required to minimize litigation, which is costly financially and emotionally.

For example, a spouse in the second stage of anger communicates with a spouse in the fifth stage of acceptance about as well as if the former understood only English and the latter only Spanish. Consequently, often it takes time for one or both spouses to work through the emotional turmoil of a divorce before they get into a compatible stage where clear communication resides. Accordingly, patience and good judgment is required as to when it is appropriate to embark on settlement discussions.

9. Estate Planning

It is crucial that a party to a divorce proceeding reconsider his or her estate planning. This would include, by way of illustration, preparing a new Will or revoking any power of attorney or trust agreement.

You will also consider severing any property held in joint tenancy between you and your spouse. The feature of joint tenancy is right of survivorship, which means if one spouse dies, the other spouse, by operation of law, succeeds to total ownership of the property even if the descendent had a Will to the contrary. For example, if you die, your spouse would become full owner of all property held in joint tenancy, regardless of the terms of your Will. Of course, the same is true if your spouse dies.

10. Epstein Credits

There are many ways in which you could help. One such way is to keep your files well organized to support "Epstein Credits" you may be entitled to.

Debts that exist as of the DOS are generally community debts regardless of which party incurred them. On the other hand, income earned by either party after the 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 request, subject to the Court's discretion, reimbursement at the 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 DOS, with monthly statements thereafter, and the canceled checks used to make payments following the DOS. You would then be in a position to fill in the Epstein chart, a copy of which is likewise enclosed.

An additional "accounting" problem arises when charges on a joint account are made after the DOS. The problem is the allocation of the interest assessed against the separate charges, as distinguished form 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 DOS on accounts that have no community obligations outstanding.

11. Joint Credit Cards (Community Property v. Contract Law)

Consistent with the foregoing, a debt incurred after the DOS is the separate obligation of the incurring spouse under community property law. A different wrinkle under contract law is added hen such a debt is incurred on a joint credit card.

Under such circumstances, both spouses are jointly and severally liable for the obligation under the contract they signed at the time the joint credit card was issued. This means while a debt incurred against a joint credit card by one of the spouses us the separate obligation of that spouse under community property law, the creditor (normally the 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.

12. Conclusion

Our basic philosophy with respect to family law matters is to attempt to resolve all matters in a fair, reasonable and well-informed manner for the benefit of our clients. We have found our clients are most satisfied when they can resolve the issues by means of settlement, thereby taking control of their own destiny, rather than laying their lives before a court which has limited time to consider all the important aspects of one's life.

Contact Us

The choice of legal representation when filing for divorce or trying to resolve a family dispute is important to you and your children and should not be made lightly. Please review the information on our website, consider our qualifications, and then contact the San Diego law offices of divorce lawyer Marilyn Bierer today for a case evaluation and review of your legal rights. Because of the serious and complex nature of family law matters, our attorneys must meet with you in person before we can provide any legal advice concerning your family law issue.