Divorce   

Don’t go through the process alone. (You’ll find a bunch of information below, but here are a few things to do first):

As you work through your family law situation and need help with child support, child custody or property division during the divorce, please do the following:

1.  Remember, the process does eventually end.

2.  Write down your questions about your family law situation in Monterey or Salinas, California.

3.  Call us at (831) 920-0625 to set up an appoinment to answer those questions and give you a road map to get through your situation in the easiest manner possible.

Please remember that not all family law attorneys are the same…child support, custody and even domestic violence, must be addressed in a manner that is not just a fight, but a process towards a resolution of your situation – NOT a drain on you pocket book.

Family law may be a complex matter, but your attorney should be able to explain it in a way that you understand.

When you are ready to see the light at the end of the tunnel, give us a call.

WHAT IS MARITAL STATUS?

Marital status refers to the lawful recognition of the agreement between a man and a woman to be husband and wife. Along with the legal marital status of being married, the husband and wife acquire rights and obligations to their respective spouses. The rights and obligations begin when the couple is married and may continue, to a certain extent, even after the termination of the marriage.

Marital status is one of the basic issues involved in a lawsuit for divorce (marital dissolution) or an annulment (nullity). At the end of a marital dissolution or nullity proceeding, the legal status of husband and wife is terminated and the spouses are returned to the legal status of being unmarried or single persons.

Marital status is automatically terminated upon the death of one spouse; the survivor becomes an unmarried person once again.

WHAT IS A “SEPARATION”?

A separation occurs when a married couple decides they no longer want to live together, but decide to live apart for a while.

WHAT IS A “LEGAL SEPARATION?”

The term “legal separation” is more colloquial than legal in nature. It can involve a court order declaring that a couple is no longer living together, and that all the issues concerning the marriage have been resolved (child custody, child visitation, child support, spousal support, distribution of property, attorney fees, and personal conduct) with the exception of marital status. Spouses who are separated are not free to marry since neither has been returned to the legal status of an unmarried (single) person.

WHAT ARE THE ADVANTAGES TO A LEGAL SEPARATION?

Legal separation is usually pursued when the parties want to stay married for religious reasons, want the advantage of deductibility of spousal support payments for income tax reasons, want to maintain various insurance coverage’s, or are do not want to wait the state statutory waiting period for termination of marital status. For some people, a legal separation is desired to set the parameters for dealing with one another while living separate and apart (especially with respect to continuing support obligations and child sharing issues) while maintaining the status of being married, and leaving the door open for a reunion/resumption of marriage. Legal separation is not a prerequisite to divorce (dissolution of marriage).

Marital status is one of the basic issues involved in a lawsuit for divorce (marital dissolution) or an annulment (nullity). At the end of a marital dissolution or nullity proceeding, the legal status of husband and wife is terminated and the spouses are returned to the legal status of being unmarried or single persons.

Marital status is automatically terminated upon the death of one spouse; the survivor becomes an unmarried person once again.

WHAT IS AN “ANNULMENT”?

An annulment is a ruling by the court that puts aside a marriage as though it never existed. e

WHEN MIGHT AN ANNULMENT BE GRANTED?

The most common ground for annulment is fraud; that is, one spouse never disclosed to the other spouse information about such things as a previous marriage, a criminal record, an infectious disease, the inability to have children, or the desire not to have children. In addition, an annulment might be granted because one party is already married, the parties are too closely related (i.e. incest has been committed), or one party is underage, and did not obtain appropriate parental consent.

WHAT IS A “DIVORCE”?

A divorce, sometimes called a decree of “dissolution of marriage”, is a court order terminating a marriage. It no longer exists. Unlike an annulment, which states that the marriage never existed, a divorce is the termination of a valid marriage. Typically in the divorce the parties and/or court resolve all issues between them, such as division of property, child custody and visitation, and spousal and child support.

Marital status is one of the basic issues involved in a lawsuit for divorce (marital dissolution) or an annulment (nullity). At the end of a marital dissolution or nullity proceeding, the legal status of husband and wife is terminated and the spouses are returned to the legal status of being unmarried or single persons.

Marital status is automatically terminated upon the death of one spouse; the survivor becomes an unmarried person once again.

CAN I GET DIVORCED BEFORE WE FINALIZE ALL THE DETAILS?

In many states the answer is “yes”. The typical case is one in which one spouse wants to remarry before all the other issues such as child custody and visitation, support, distribution of property and attorney fees are resolved. In states permitting this “bifurcation”, the court will handle the end of the marriage separately from the other issues. This permits the parties to remarry while providing them additional time to resolve the remaining issues. If the parties cannot negotiate matters themselves, the court retains the ability to resolve all remaining issues at trial.

CAN ONE SPOUSE GET A DIVORCE JUST BECAUSE S/HE IS TIRED OF BEING MARRIED?

Each state has its own laws determining when and under what circumstances a divorce can be sought and granted. In some states both sides can agree to obtain a divorce with only a brief waiting period. Other states, however, have laws that claim to permit a divorce only if there are “grounds”, meaning that the divorce is one spouse’s “fault”.

DO I NEED TO HAVE AN ATTORNEY TO GET A DIVORCE?

Although it is legal in many states to obtain a divorce without representation by counsel, it is always inadvisable, because of the complex issues involved. If you have been married only a short time, have no children and little property, it may seem financially advantageous to “do it yourself”. However, a good lawyer will always pay for him/herself. Timing can often be crucial in getting a divorce; an attorney can best advise you when it will make the most sense in terms of insurance and taxes. A skilled attorney can help you avoid personal and/or property matters that may cost you money down the road, and will represent your best interests in resolving any financial complications that may arise. An attorney also can help avoid the possibility of one party claiming that s/he was taken advantage of because all facts were not disclosed. The mediation process can also help disputing partices in a divorce, even when both parties are represented by attorneys; click here for an article explaining how divorce mediation works. For a discussion of the legal fees involved in a divorce, click here for a general explanation of the fees.

WHEN MY SPOUSE AND I SEPARATE WHO PAYS THE EXPENSES PRIOR TO THE DIVORCE?

A spouse can petition the court for temporary support after filing for divorce and up to the entry of a final judgment. The court may also allocate the cost of maintaining the marital estate, such as the mortgage on the marital residence between the parties. It takes various factors into account such as income and financial assets available to the parties. The courts vary significantly from area to area in what they will award. The amount of temporary support is usually not taken into account in the final division of assets or support.

WHEN I GOT MARRIED, I MOVED INTO MY WIFE’S HOUSE. WE ARE NOW GETTING DIVORCED AND I WANT TO KEEP THE HOUSE. DO I HAVE ANY RIGHTS TO IT?

Unless the house was re-titled in your name it is most likely separate property and will belong to your wife. If you contributed to the mortgage or other upkeep, you may get some credit in the economic portion of your divorce; however, you have no claim to the house itself.

WHAT IS A “BIFURCATION” OF MARITAL STATUS?

In a dissolution of marriage lawsuit, one spouse may want to get married before all the other issues are resolved (child custody, child visitation, child support, spousal support, distribution of property, attorney fees, and personal conduct). Under state law, one spouse may be able to have the issue of marital status taken separately from the other issues, in order to remarry while providing additional time to work to resolve the remaining issues. By “bifurcating” marital status from the other issues, a spouse can be returned to the legal status of an unmarried (single) person, while the court retains the ability to resolve the remaining issues (at trial if negotiation fails).

WHAT DO I DO IF I BELIEVE MY ATTORNEY IS NOT ADEQUATELY REPRESENTING MY INTERESTS?

You, as the client, have a nearly absolute right to discharge your current lawyer and hire another lawyer. You may do whether or not you have a reason anyone else would agree with, or even for no reason at all.

The major exception to your absolute right to bring in new counsel would be if you tried to do so just before, or during, a trial or hearing. In such circumstances courts tend to frown on substitutions because they recognize them as delaying tactics or gamesmanship. As it takes time for a new lawyer to get up to speed, and could seriously prejudice the other side and waste judicial resources, courts permit last minute substitutions only for extra-ordinary good reasons, such as a conflict of interest.

While you have the right to fire the old and hire a new lawyer, it does not mean that you do not have to pay the old lawyer for the work performed. And in some states, the former lawyer has an “attorney’s lien” on the case files, and need not turn them over to you or the new lawyer until the bill is paid. However, even in such states, if you have a is a good reason for firing the old lawyer, courts may step in to protect your rights to proceed and order the files be transferred to the new lawyer.