Many persons facing divorce, or a custody dispute, or some other family-law issue will be confronting the legal system for the first time. Finding the right lawyer can seem a confusing and sometimes overwhelming task. Here are some suggestions to help you find the right person.
Ask professionals in whom you have confidence. These include marriage counselors, therapists, clergy, accountants, attorneys in other fields, and financial advisors. They can often recommend a family-law attorney whose work they have seen first hand.
Seek referrals from friends and family members who themselves have gone through a divorce or other family-law proceeding. However, be careful that you don’t expect their result to be your result, or their experience to be your experience. Every case is unique, and facts, issues, and goals vary greatly.
Select a lawyer who practices family law exclusively or predominately. It is generally not advisable to retain someone who handles family-law cases as just one of many areas of law.
Consult attorney rating services that base their ratings on objective peer review of attorneys by judges and other lawyers. Martindale-Hubbell rates attorneys for both legal ability (“A” is the highest) and for ethics (“V” is the highest). The American Academy of Matrimonial Lawyers is a good resource because it accepts as fellows only the top family-law attorneys. The national publication Best Lawyers in America lists the country’s best attorneys. Another resource is the State Bar’s list of Certified Specialists in Family Law; though it does not rate attorneys, it does give the assurance that the attorneys on the list have met rigorous education, experience, and testing standards to attain certification.
Interview the attorney you are considering hiring. Find out if the attorney has had experience in dealing with the particular issues in your case. If custody will be disputed, ask about his or her experience in handling custody matters. If you want to move away with the children, or you are concerned that your spouse might want to, ask if the attorney has handled move-away cases. If your property issues involve such things as stock options, or the valuation of a business, or venture-capital interests, or real-estate or partnership holdings, find out if the attorney is knowledgeable about these.
Discuss approaches to dispute resolution—such as litigation, negotiation, collaboration, or mediation. Find out if the attorney will support the approach you want to take.
Be honest in the interview. Don’t hold back facts. Give the true picture of whatever your situation is—the bad as well as the good. That’s the only way you can get an honest assessment from the attorney and evaluate your response to that assessment.
Choose an attorney with whom you feel comfortable. This does not mean choosing a “feel good” attorney who tells you what you want to hear. It does mean choosing someone who you believe will be supportive and empathetic, who will be vigorous in advocating your interests, but who will be honest with you and always tell you the truth (about, for example, the strengths or weaknesses of a position you may want to take, or the dangers of a certain course of action if your thinking strays into a perilous direction). It also means that you want an attorney who listens to you respectfully, and who answers your questions openly and honestly and directly.
Ask about the attorney’s hourly rate and retainer (i.e., advance fees put into a client trust account for payment of the billings), and whether there are special rates for certain services (some attorneys, for example, charge a higher hourly rate for court appearances). Confirm that if any of the retainer is unused by the end of the case, the balance will be refunded. Confirm that the attorney will send you statements each month that list the services performed, the amount of time spent on each service, and the charge
We think you will find the above recommendations helpful in choosing an attorney. Remember: You will be working closely with this person in what will probably be an emotionally difficult time in your life, and you will be sharing very personal and private information and feelings. You want to be sure that the attorney has the professional expertise and personal qualities to give you the very best legal representation.
To start a proceeding for a marital dissolution, a “Petition” is filed in the superior court of the county where the parties live. The “Petition” is a printed form where certain statistical data is filled in (such as, for example, date of marriage, date of separation, names of children, etc.) and where boxes are checked to indicate what is being requested of the court (such as spousal support, either sole or joint custody of the children, determination of property rights, etc.). A box is also checked to indicate the “grounds” for divorce, which almost always is “irreconcilable differences”. As California is a “no fault” state, nothing needs to be proved; simply stating “irreconcilable differences” entitles the person to the divorce.
If there are children, the party also fills out a “UCCJEA” form (Uniform Child Custody Jurisdiction Enforcement Act) to state statistical data such as the names, ages, and places of birth of the children.
The Petition and the UCCJEA form are filed with the court, and the court issues a “Summons”. The Summons is a form signed by the clerk of the court. It, along with the other forms that have been filed with the court, is “served” on the other party (along with blank forms for him/her to fill out: a “Response” form that is similar to the “Petition” form, and a UCCJEA form). It is this “service” that triggers the start date of the case. The significance of the start date is that the earliest that a person can have the marital status terminated is six months after the date of service. (This means that six months after service, a person can take certain procedural steps to get a divorce judgment that restores both parties to the status of unmarried persons, even if the property, custody, support, or other issues of the case have not yet been resolved.)
“Service” of the Summons, along with the other filed forms, can be made on the other party in a number of ways. Say, for example, that it is the wife who filed the Petition. She can hire a process server to deliver the papers to the husband, and the date of delivery is the date of service. Or, she can have someone like a friend or relative deliver the papers, though this is generally not advisable because it puts the friend or relative in the middle of things and, not surprisingly, can harm relationships. The only restrictions on who can serve the papers is that the person must be an adult and must not be the Petitioner herself. Another option for service is to mail the papers to the husband along with what is called a “Notice and Acknowledgment of Receipt of Service”, which he will need to date and sign and return to the sender. The date he signs the form is the official date of service (to start the six-month clock running), and is a service method often used because it avoids having a process server knock on the door, which is often unsettling and perceived as needlessly provocative. (Of course, if the person being served is not likely to cooperate in signing and returning the form, then personal delivery of the papers is necessary). Another option in our hypothetical example is for the wife’s attorney to write a letter to the husband telling him that the divorce Petition has been filed, and requesting that he come to the attorney’s office to pick up the papers himself. In that case, the day he picks them up is the date of service.
Effecting service of the Summons, at the earliest possible date after filing the Petition, is very important because the Summons contains automatic restraining orders that, among other things, restrain either party from removing the children from the state, canceling or changing life or medical or other types of insurance, or disposing of property or taking loans out against it. Also, within thirty days of service, the party served must fill out, serve on the other party (which can be by mail), and file with the court a “Response” form. This is a form similar to the “Petition”. The “Respondent” fills out similar statistical information and states whether he/she agrees or disagrees with the requests stated in the Petition. (Stating he/she does not agree that there are irreconcilable differences is meaningless; it is without legal effect.)
With the Summons served, the divorce case has started. Early on in the case, California law requires each party to fill out and serve on the other party what is called a “Declaration of Disclosure”. This is a two-part form. The first part is an “Income and Expense Declaration” on which the person states his/her income for the preceding twelve months, and lists his/her expenses by line-item category. The second part is a “Schedule of Assets and Debts” on which the person lists by category all existing property and debts, whether joint or separate. The purpose of the form is to ensure that both parties know, at an early stage of the divorce, what assets and debts exist, and what the income picture of the other party is. The Declaration of Disclosure is signed under penalty of perjury, and a form stating it has been provided to the other side is filed with the court.
With the above steps taken, the divorce process unfolds. The procedural ways it can unfold are many and varied, and your attorney can provide you with an understanding of the available options and processes.
You wanted to settle your case out-of-court, but despite everyone’s best efforts, it did not happen. Now you find yourself headed for court. It’s natural to feel nervous if you have a court appearance coming up. Here are a few things to keep in mind:
Most cases are heard on the “20-minute calendar.” These hearings are brief; technically they are not supposed to last more than 20 minutes (although occasionally a hearing may run over the allotted time). This is because the judge will decide the issue based on the attorneys’ arguments only. That means you will probably not have to say anything in court.
Some cases will be set for an “evidentiary hearing,” or trial. This means that the judge will hear evidence from witnesses, very likely including you and your ex.
No matter which kind of hearing you are in, remember:
Always address the judge respectfully (i.e. “Your Honor”). Speak clearly and politely and do not interrupt, even if the judge interrupts you to ask a clarification question.
You will likely hear things that may upset you, either from the other attorney or from the other party. No matter how tempting it may be, do not roll your eyes, smirk, guffaw or exclaim when you hear someone say something you don’t agree with. Take a deep breath and let your attorney respond.
Dress neatly and appropriately for court, and arrive on time.
If you are testifying, answer the questions from the other attorney as honestly and simply as possible. Do not volunteer extra information, unless you need to explain an answer that would be incompletely answered by a simple “yes” or “no.” In that case, you may say “Yes (or no), but may I explain my answer?” The judge will likely allow you to.
If you have a question, you can discreetly whisper it or write it out to your attorney. However, keep in mind that your attorney needs to closely follow the testimony being given to ensure you are protected and well-represented, so only communicate necessary information.
If you become emotional while the hearing is in progress, know that you are in good company. Going through a divorce or custody dispute can be one of life’s toughest challenges and family court judges are used to seeing people cry or become distraught in their courtrooms. Just take another deep breath, accept the tissue the bailiff offers you, and calm yourself as best as possible.
What is a deposition? A deposition is where an attorney elicits the testimony of a witness (the deponent) via a series of questions. Although testimony is taken in an informal setting, the deponent is under oath and his or her testimony has the same force and effect as if he or she were in court testifying to the judge.
Who can be deposed? Either a party to the divorce, an expert (e.g. a party’s accountant or a real estate appraiser) or other witnesses (e.g. a police officer, friend or neighbor) who have relevant testimony or who may testify at trial.
What questions can be asked? The scope of the questioning is broad. A deponent can be asked questions about anything relevant to the lawsuit, including questions that may lead to the discoverability of other relevant evidence. Some of the questions typically asked of a deponent concern his or her recollection and/or understanding of facts, documents, events, a party’s contentions, or his or her opinions.
Will you or your ex-spouse be deposed? A deposition is a valuable discovery tool, but whether or not a party to a divorce is desposed depends upon a variety of factors, including the complexity of the case, the level of trust between the spouses, and the financial resources available for discovery.
What if I am deposed but don’t know the answer to a question? Memories fade and you are not to guess (although you are required to give your best estimate), so an appropriate response is to answer “I don’t know”, or “I don’t recall”. Of course if the question concerns one of your claims, your testimony that you don’t remember may have serious consequences.
What if I don’t understand the question? You or your attorney can request that the attorney asking the questions rephrase the question. The attorney defending your deposition will meet with you in advance to go over the ground rules of a deposition and explain how to make sure the deposition moves forward quickly and that you give your best answer to each question.
Can I correct my testimony later? Yes, you have the right to review the transcript (the booklet containing the attorney’s questions and your answers) and make changes, but if the change is a significant one, the opposing attorney can comment on your changes at trial. You can also correct your testimony at trial, but that is not advised, as the other attorney will point this out to the judge and your credibility may be affected. So the better practice is to review your case with your attorney to make sure you are prepared to answer all questions the other side may ask.
Collaborative Law is a relatively new approach to the resolution of cases which has gained popularity in recent years. The goal of collaborative law is to help parties complete all aspects of their divorce: child custody and visitation, division of the community estate, determination of any separate property or reimbursement issues, etc. - all without litigation. The collaborative approach is intended to reduce the mistrust, rancor and divisiveness that are often present during a divorce. This is accomplished through a cooperative information-sharing approach in which both the parties and the attorneys utilize creative problem-solving in order to create a “win-win” situation for everyone in the family. It has been said that, under the collaborative model, someone listening in to the discussion taking place would be unable to easily determine which attorney represents which party.
Cases are handled through a series of four-way meetings among the parties and attorneys. Attorneys and parties engaged in a collaborative divorce agree to avoid litigation, to voluntarily provide full disclosure of all information, and to jointly use neutral experts as needed. If the process comes apart and the parties need to have a judge decide issues, they need to employ new counsel, as collaborative attorneys do not represent parties in court. The rationale behind this is the same as that governing confidentiality of private mediation. A lawyer who has been privy to information disclosed in a safe environment where openness is not only encouraged, but expected, should not be able to turn around and use that information against the opposing side in court.
Collaborative practice is similar to mediation in that it promotes trust and the open exchange of information and is interest-based as opposed to position-based. However, it differs from mediation in that each party has an attorney to intervene where there may be a power imbalance. For example, let’s say the wife is better-versed in the family finances that the husband. Under the collaborative model, not only husband’s attorney, but also wife’s attorney would work toward creating a property division that ensures husband does not receive a lesser share of the community pie.
California law provides for the severance and granting of a separate and early trial on the issue of dissolution of the status of marriage, reserving jurisdiction over all other issues. This means that either party can move the court for a hearing date to seek the issuance of a Judgment of Status Only Dissolution, even over the objection of the other party. Once entered, the parties are divorced and either party is free to remarry. The court will subsequently resolve the remaining issues of the case, such as property, support, attorney’s fees, etc. In the alternative, the parties can agree (or stipulate) to a Judgment of Status Only Dissolution and no hearing will be required.
Whether by noticed motion or by stipulation, the statutory waiting period of six months from filing of the Petition for Dissolution and service on the Respondent applies. Additionally, the moving party must complete and serve a Preliminary Declaration of Disclosure on the non-moving party (i.e., an Income and Expense Statement and a Schedule of Assets and Debts).
Until the Judgment on Remaining Issues is entered, the Court may also impose conditions on the party seeking the Status Only Dissolution, such as: (1) the moving party must maintain at his/her sole expense, health and medical insurance for the non-moving party; (2) indemnify the non-moving party for any adverse effect if the bifurcation results in the loss of probate homestead or family allowance as the surviving spouse of the moving party; (3) indemnify the non-moving party for any loss to the non-moving party for loss of pension benefits, elections or survivors’ benefits associated with pension and/or retirement plans; (4) indemnify the non-moving party for any loss of rights to Social Security benefits or elections.
These imposed conditions can be very expensive to the moving party and can result in significant long term liabilities for the moving party. Feel free to contact us to get more information about Bifurcation or Status Only Dissolution and its impact on your case.
In the alphabet soup that a person encounters during a divorce, the ATRO’s are there from start to finish, and violating them can cause a person VBP’s (“very big problems”—not a divorce acronym, but we think it makes the point).
What are they? They stand for “automatic temporary restraining orders”. They are printed on the initial Summons issued by the court at the start of a divorce of legal separation action, they are served on the other party along with the divorce or separation petition, and they apply to both parties during the entirety of the proceedings.
The ATRO’s restrain both spouses from doing any of the following:
1. Removing the minor child or children from California without the prior written consent of the other party or court order;
2. Cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance held for the benefit of the parties or children;
3. Transferring, encumbering, hypothecating (pledging property as security for a debt), concealing, or disposing of any property without the written consent of the other party or court order, except in the usual course of business or for the necessities of life; and
4. Creating a nonprobate transfer or modifying a nonprobate transfer in a way that affects the disposition of the property, without the written consent of the other party or court order. Before revocation of a nonprobate transfer can take effect or a right of survivorship to property can be eliminated, notice of the change must be filed and served on the other party.
Violating any of these automatic restraining orders is a violation of a court order, so it’s important to remember them.
Update your estate plan and make a new will.
Check the beneficiary designations of your life insurance to be sure they are still correct.
Also check the beneficiary designations of your IRA’s, 401K’s, employer-provided pension plans, and any other retirement accounts or plans.
Change access to your safety deposit box.
Be sure that all joint credit cards have been closed.
Change title to your vehicles as necessary.
Change title to all bank and brokerage accounts as necessary.
Change beneficiary designations on all employer-provided benefits (such as group life insurance, medical insurance, stock purchase plans, etc.) as necessary.
Prepare a new power of attorney for handling your financial affairs should you become unable to do so.
Prepare a new Advance Health Care Directive.
If you need help in handling your investments or assets, seek the help of a reputable financial planner or advisor.
If you or someone you know would like to get information to help you navigate the family-law system, here are some sites that can provide useful information.
To see court forms and get general information, an online self-help website is www.courtinfo.ca.gov
To access the California Family Code, go to: www.leginfo.ca.gov (once on this site, select “California Law” at the bottom of the first page, then select “Family Code” and “Search” on the next page)
For information about California Department of Child Support Services and how they can help enforce and collect child support orders, go to: www.childsup.cahwnet.gov
Get information about attorneys at the website for the California State Bar: www.calbar.org
General help: www.LawHelpCalifornia.org and www.findlaw.org
To locate marriage records: www.vitalrec.com
To get a credit report: www.annualcreditreport.com
One of the best books about divorce in California, full of practical information and tips about everything from selecting an attorney to finalizing your divorce is: Divorce Handbook for California: How to dissolve your Marriage without Disaster, by Judge James W. Stewart, 5th edition, Impact Publishers, Inc.