When Should I File for Divorce in California?
In a past article, I discussed that the process a party chooses to pursue a divorce or legal separation whether in San Jose, Sunnyvale, Cupertino, Campbell, or any other Bay Area city, severely impacts the outcome of their case. Once a party has decided on the process, the next decision might be when he or she should file for divorce. A divorce is initiated when a party files a Petition for Dissolution of Marriage and has it properly served on the other party.
When a petition for dissolution of marriage is filed and served, there are several legal outcomes of which to be aware when making decisions. First, once the petition is filed and served, certain protections are afforded to each party in the form of restraints. These are known as “Automatic Temporary Restraining Orders,” or “ATROS.” These restraints apply in California divorce cases. Specifically, both parties are legally restrained from:
1. Removing the minor child or children from the state without prior written consent of the other party. Clients should take note that Las Vegas is in Nevada as some parts of Lake Tahoe.
2. Cashing, borrowing against, canceling or changing the beneficiaries of any life, health, automobile, and disability insurance.
3. Transferring, encumbering, concealing or disposing any property, whether community or separation, without the written consent of the other party or an order of the court, except in the usual course of business or for necessities of life (i.e. food, shelter, and other daily needs).
4. Creating a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the transfer of property without the written consent of the other party.
Unless a divorce petition is filed, there are no restraints. If a party is concerned that his or her spouse might dispose of assets, kidnap the children, change insurance policies, or any other violation of the four restraints above, the party should consider filing immediately.
Second, once a divorce petition is filed, that filing date is arguably the last possible date for the “date of separation.” The date of separation is when one party determines the marriage is irretrievably broken and has no intention to reconcile. The date of separation is very important. It stops the community property clock. After this date, the couple’s earnings are no longer community property, but separate property. If John files for divorce on February 26th, the date he believes the marriage is over, and receives a stock grant the following day for future employment, arguably, the stock grant would be his separate property.
Third, the Court has the ability to award child support from the date of the filing of the divorce petition. In other words, even though it might take a party time to have a child support case heard for the first time, the judge is not limited in ordering support from the date of the hearing. Instead, child support can be granted retroactively to the date of the petition. There are some specifications here, so parties should seek counsel.
Fourth, service of the divorce petition (i.e. serving it on the other party) starts that infamous 6- months clock. The soonest a couple can have their status changed from married to divorce is 6-months and one-day from service of the petition. The couple can finalize their divorce agreement prior to that date, but have to wait before for their status to change. For example, John has Amy served with the petition on June 28, 2013. The soonest they can be divorced is December 29, 2013. However, suppose John and Amy did not complete their divorce by December 29, 2013. This day will pass and nothing will happen in their case, unless they request that their status be bifurcated (a topic outside the scope of this article).
Finally, the party should be ready. Divorce is not easy. Prepare yourself emotionally, physically and spiritually. Often, filing for a divorce is a sign of war, especially if the other party is unaware. It often results in a race to hire lawyers and a court fight. You want to avoid this at all costs! Consider mediation. At Families First Mediation, we are ready to help.
If possible, discuss the divorce with one another. In that conversation, discuss the filing of the petition, the service of the petition, and how you desire to pursue the divorce action (i.e. amicably through mediation). You may even discuss who will be the petitioner (the person that initiates the divorce action). Even if one party does not want the divorce, the party should absolutely participate or risk losing a great deal.
At Families First Mediation, I prepare the divorce petition for the couple, review it in session with both parties and file it for them. Although only one person is the petitioner, this process allows both to be involved. We then serve the petition on the other spouse (respondent) by mail or in my office to take away the sting or embarrassment that might happen when served in public.
Feel free to contact my office for more information. We specialize in divorce mediations for couples throughout the Bay Area. You can be confident in your choice. Call us at (408) 357-3486 or email us at email@example.com.
By Dina Haddad