Divorce Process Question & Answer
By: David L. Miller
Q1. My spouse and I plan to divorce, but have not started the process. What should we do first?
A1: Ask friends, family and/or co-workers for the name(s) of local family law attorneys that have been used in the past. A person-to-person referral is always better than a cold search for the right legal advisor when dealing with the important issues that must be addressed in a divorce proceeding-even a friendly divorce.
Q2. I plan to tell my spouse that I want a divorce. Is there anything I should do to prepare myself before I do so?
A2: Make sure before uttering those words that you are 100% convinced the relationship is so broken and damaged that neither the passage of time or any type of counseling will help restore it.
Q3. My spouse has just told me that she wants a divorce. What should I do first?
A3: Remain calm! Do not allow your emotions to take control. One bad decision at the beginning of the process could have a lifetime effect on your future. Take a day or so to process what your spouse said and then seek out a referral from a trusted friend, family member or co-worker.
Q4. My spouse and I are not getting along. I am planning to move out of the home we bought 10 years ago. Is moving out a wise thing to do?
A4: If one or both spouses are unable to respect the other while under the same roof, especially if children are witnessing disrespect, anxiety and acrimony, then by all means relocate. You are not “abandoning” the property. Your property rights do not follow you; they remain with the property. Remember, the spouse who has exclusive use of the home (i.e., “the in-spouse”) will generally be responsible for making the payment(s) on the home up to the property’s “fair rental value.”
Q5. My spouse and I have been married for 7 years. We have two children. He has a business and I have a dental practice, plus we own two properties. Do you think a do-it-yourself online divorce will work for us?
A5: Only if the two of you were able to obtain your law degrees in your spare time and you understand the complexities of valuing a self-employed business and a professional practice. You only get one opportunity to obtain an equal division of the marital assets and debts. The court does not allow “do-overs.”
Q6. Our house is an “under water” property and it is the main reason my spouse and I have not moved forward with a divorce. We just cannot stand living together any longer and we want to get on with our lives. Do you have any suggestions as to how we can do so?
A6: This is a common scenario. Generally, when the lender verifies that a divorce has been filed and realizes that each borrower intends to “walk away” from the home, it is much more willing to discuss alternatives like a “short sale.” If the mortgage was a “non-recourse, purchase money” loan, the lender’s only recourse in the event of a default is to foreclose. It will not be able to obtain a money judgment against the borrowers. A home equity line of credit is different and an attorney should be consulted on how to deal with that encumbrance.
Q7. My spouse wants to use the Collaborative process for our divorce. Is there any reason why we would not want to use this process?
A7: The Collaborative process is not appropriate where the marital dynamics and relationship have been unequal. In other words, if one spouse is highly educated and the other is not. Or, where one spouse “wore the pants” in the family and the other took on a more submissive role. The spouse wishing to use this process must be confident, assertive and knowledgeable if they are to receive what they are entitled to by law. The Collaborative process does not permit either spouse to have an “advocate” on their side looking out for them. They must do this for themselves.
David L. Miller is a Partner with Kring & Chung, LLP’s Irvine, CA office. He can be contacted at (949) 261-7700 or firstname.lastname@example.org.