The first thing a divorcee needs to figure out is whether to hire an attorney or represent themselves during the divorce process. This issue depends on the specific circumstances of your case, such as whether you have minor children, as well as the amount and value of your marital assets. In general, divorces involving children and high-value assets involve complex issues of law and fact that essentially require the expertise of an experienced family law attorney.
Ideally, all divorcees could retain the professional services of a licensed attorney to advise them about their legal rights and advocate for their best interests. Unfortunately, many people do not have the luxury of retaining a lawyer for their divorce and have no choice but to proceed as a “pro se litigant”—someone who is not represented by a professional attorney.
Moving Out of the Home
One of the preliminary issues in a divorce is whether to move out of the marital home. The day that you and your former spouse start living separately is a significant fact for divorce proceedings. In California, issues such as property division and spousal support depend on the date of final separation.
Before you or your former spouse move out, it is highly recommended that you keep a comprehensive inventory and accounting of your property. Upon divorce, the parties are required to make a complete disclosure of assets. By keeping a record of your property before you and your spouse separate, you will save time and resources in the future on issues concerning the characterization and division of community property. Such a record can be created simply by taking pictures or videos with your phone.
Another critical consideration when separating from your spouse involves child custody. Generally, child custody issues are resolved based on the court’s consideration of the child’s best interests. In California, an equal split of parental rights, responsibilities, and time with the child presumptively serves the best interests of the child. However, a child also has an interest in living in a stable and familiar home environment. If a child’s best interests would not be served by dividing custody equally between the parents, the parent who moved out might have a disadvantage when it comes to final custody determinations.
In some cases, having one spouse move out is a critical step to preserve the spouse or child’s safety. A court can issue a protective order excluding an abusing parent from the home and awarding exclusive possession to the abused spouse and child.
Ultimately, one party will move out of the home, and the other may decide to stay there. The party staying in the home should take the other party’s keys or change the locks on the home’s entranceways. However, the party living at home may not deprive the other party of their right to spend time with their child absent a court order on child custody and visitation.
Filing the Divorce Petition
After or around the time you and your spouse have separated, you must file a divorce petition with the court. If you hired an attorney, they will take charge of ensuring that the required filings are in order. The divorce petition will specify the main issues for the court to decide, such as spousal support, property division, the custody and financial support of minor children, attorney’s fees, and any associated temporary orders.
Initial divorce filings can be completed using standard forms approved by the Judicial Council of California, including:
- FL-100: Petition—Marriage/Domestic Partnership
- FL-110: Summons
- FL-105: Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act
- FL-115: Proof of Service of Summons
- FL-140: Declaration of Disclosure
- FL-150: Income and Expense Declaration
- FL-142: Schedule of Assets and Debts
- FL-160: Property Declaration
- All tax returns filed in the past two years.
Developing Your Case
You might be anxious to develop a strong case against your spouse to protect your own rights. Some people are tempted to access their former spouse’s private emails or record their phone calls to bolster their position in litigation. Invading your former spouse’s privacy is definitely frowned upon by courts, and is considered illegal in many cases. Such actions can hurt your chances of receiving a favorable outcome in your divorce. You should leave the discovery of facts in the capable hands of your lawyer.
If you are concerned that your former significant other is concealing assets, you should discuss such concerns with your attorney. An effective lawyer can help you find hidden assets by analyzing the initial disclosures, income expense declarations, and schedule of assets submitted by the other party. Discrepancies can lead the attorney to investigate possible hidden assets using formal and informal discovery methods.
After developing your case, formal divorce proceedings will begin. The court is a very formal and solemn place, so you should wear professional attire. While you are not expected to wear an expensive suit, you should appear dressed as if you were going to a job interview. Judges are inherently judgmental, so it is crucial that you make a good impression.
If you have minor children, the court might appoint a custody evaluator to assess the nature of your relationship with your children and make an official recommendation about what kind of custody arrangement serves the best interests of your children. Evaluations take place outside of the court by appointment. It is extremely important for you to cooperate with a custody evaluator and keep appointments unless there’s an emergency.
At any point, you and your spouse can enter into a private agreement to resolve the terms of your divorce. In some cases, the court will require mediation before proceeding on certain issues. Most courts highly encourage the parties to hash out what they can without court intervention.
Judgment and Post-Judgment Proceedings
At the end of your divorce, the court will issue a final judgment detailing its findings and orders. Some orders, such as spousal support and child custody, are subject to future litigation if a material change in circumstances justifies modifying the terms of the court’s final orders.
For Comprehensive Legal Representation, You Can Trust Moshtael Family Law
Divorce can be a lengthy and intense process. Having the support of an experienced family law attorney can help alleviate the stress and risks to your legal interests in divorce cases. At Moshtael Family Law, our attorneys are ready to fight for your rights during various family law matters, including divorce cases.
Call Moshtael Family Law at (714) 909-2561 or contact us online today for a case evaluation with one of our experienced and respected attorneys to explore your rights and options.