Divorce is never an easy or pleasant process. However, these tips can help you minimize the time, conflict and cost associated with the divorce process.
1. Decide Which of You Will Be the Petitioner
The divorce process officially begins when one of you files a Petition for Dissolution with the Court. This does not have to be an adversarial process. California is a no-fault state, which means that there are no legal penalties based on which spouse “caused” the divorce. Therefore, almost all California divorces are filed based simply on “irreconcilable differences”.
If you have not already served your spouse, or been served with papers yourself, the two of you have an opportunity to decide which of you will initiate the process. Often, the spouse who feels more strongly that divorce is appropriate prefers to be the petitioner. Some lawyers feel there is an advantage to being either the petitioner or the respondent, so it wise to seek legal advice before taking any actions.
2. Be Open to Divorce Mediation
Prior to filing, you should decide if you will try divorce mediation. If you have been able to discuss issues openly and reasonably in the past then, even if neither of you agree on any of the issues at hand, divorce mediation may be a good option for you. If there are significant imbalances of power, or if domestic violence or child abuse are involved, then you probably need the representation of a family law attorney.
3. Agree On Your Date of Separation
Your date of separation is determined by the day that you physically separated and one of you decided that the marriage was “irretrievably broken”. You did not have to both agree at the time one of you made this final decision. While couples may separate and then work things out several times, there can only be one legal date of separation. Your date of separation affects many features of your divorce, including the characterization of your property and earnings and spousal support.
4. Seek Independent Legal Advice
Even if you agree on most issues and want to avoid legal proceedings as much as possible, it is important that you discuss your options with a family lawyer or divorce attorney. Some lawyers offer free consultations, while others charge an hourly rate. Even if it costs each of you a few hundred dollars, it is worth the money to understand the presumptions of California community property law, your options regarding custody and visitation, and your rights and obligations concerning child and spousal support.
Certain lawyers use a process called collaborative divorce, in which they will advise you of your rights while also trying to work cooperatively with the other side to reach agreement outside of court. Collaborative divorce can also involve other professionals, such as child specialists and divorce coaches, and additional written agreements to encourage fair and civil negotiation of the issues.
5. The More You Can Participate and Agree, the More You Will Save
Ironically, at the same time you are divorcing based on irreconcilable differences, the more you can agree on issues and participate cooperatively in your own divorce, the more money each spouse can save. It is possible to complete an uncontested divorce by representing yourselves “in pro per” (without a lawyer). However, the process and forms required (see below) can be complicated. You must be willing to research self-help resources, complete required forms, and file the forms by certain deadlines.
6. Discuss Ideas for Property Division
Divorce attorneys typically approach issues of custody, support and attorney fees in that order. Divorce mediation uses a different approach. Typically, property division is addressed first so that spouses will know what they each have to work with.
In divorce mediation and collaborative divorce, spouses can make their own decisions as to what constitutes “fair division” of the marital property. Spouses who work cooperatively may be able to avoid the sale of their home and the division of other valuable assets such as 401(k) and pension plans.
7. Work Together to Create a Parenting Plan
Next, try to change your mind frame from being “spouses” to being “parents”. Children benefit when parents can communicate and work cooperatively in their best interests. A successful parenting plan will have a regular schedule, an exception schedule, a holiday schedule, a communication plan, and other agreements that will reduce the chance of future conflict.
8. Mediate Reasonable Support
Court awards of child support or spousal support are often the biggest point of contention in a litigated divorce. These issues can result in thousands of dollars in legal fees, and sometimes both spouses are still unhappy with the court’s decision.
In California, child support is based on a statewide “guideline”. A family lawyer or divorce mediator can run the complicated equation that determines an estimate of what the court will award. In divorce mediation and collaborative divorce, you can use the guideline as a starting point, but you can also agree to add other exceptional factors into your child support agreement.
Determining “reasonable” spousal support can get a bit trickier. Temporary spousal support is based primarily on each party’s last twelve months of income. However, when determining permanent spousal support, the court considers additional factors, including:
- The earning capacity of each spouse;
- Contributions to education, training or licensing of the high earner spouse;
- The length of marriage;
- The marital standard of living;
- The age, health and work history of each spouse;
- The need and ability to pay support;
- The need to finish raising minor children;
- The goal that the supported spouse be self-supporting within a reasonable time;
- The obligations and assets, including separate property, of each spouse;
- The immediate and specific tax consequences to either spouse;
- Any history of domestic violence; and
- “Other factors” the court deems appropriate.
Spouses using divorce mediation or collaborative divorce can agree to waive spousal support in consideration for other terms, determine regular payments for a set duration, or agree to a single lump sum payment consisting of cash or property.
9. Assist in Forms Preparation
Much of the California divorce process uses Judicial Council forms. However, knowing which forms are required and filing them at the right times can be confusing. You can reduce the cost of your divorce if both spouses are forthcoming with information and timely with forms preparation. You should also both be familiar with the dissolution process. A self-help overview of the divorce process is typically provided at each county superior court’s website.
Lisa L. Fiance, Esq. is a California family lawyer and divorce mediator and the owner of Epiphany ADR. The information contained in this article is intended as general information and does not constitute legal advice. If you are considering divorce, you and your prospective spouse should consult with independent legal counsel in the state whose laws you want to govern your agreement.