Share on Twitter!The 64000 Blog Post About Divorce
Remember the show $64,000 Question?
Even if you’ve never seen the show, the phrase the $64,000 question is widely used in the English vernacular. The “$64,000 question” is something that is the most difficult to answer – the answer which will win you the prize.
So What Can You Expect from Your Divorce? The $64,000 Question
Contained in this blog post is everything you need to know about your divorce and California (specifically Los Angeles) law: The $64,000 blog post about divorce.
Family Law is Easy
Legally speaking, unlike other areas of law (especially tax these days!), Family Law isn’t very complicated.
Family Law can be summarized using 2 effortless sentences:
1) Child custody is awarded based on children’s best interest and
2) Community property is all property acquired before marriage and after date of separation, except inheritance and gift.
Anyone can ace a Family Law exam.
What makes this area of law so hard is the heightened emotions and desire for revenge. It’s why most lawyers avoid family law like the plague, and what makes this area of law so dangerous and so stressful.
Perhaps if everyone better understood the law and their lawyer’s limits, my chosen profession wouldn’t get such a bad rap. Last I checked, divorce lawyers rank below spammers in terms of most hated professions.
Emotions and Human Nature
Divorce law is easy. It is only hard because people are hurt and angry and they think the law can help and they think the law can inflict revenge and punishment. Not just any revenge, MEMORABLE and LOUD revenge.
After all, like the proverbial tree falling in the woods, does any of it make a sound? Their ex needs to HURT,and not silently.
Nobody Wins in Divorce
The problem is that all this pain and suffering you wish to inflict is often for naught. There is no winner in divorce. I often get emails from strangers asking me, “What percentage do you win in divorce?”
This always launches in the ever philosophical debate of what it means to WIN.
If your spouse is a drug addict in prison, and you are awarded custody, do you win?
What if she was a loving parent but cheated on you, and you are awarded sole custody, do you win?
If you feel your community share is $50,000 more than what he is offering, but then you spend $75,000 to get the extra $50,000, do you win?
The sad truth: There are no winners in divorce.
There isn’t a prize to be won, no trophy for your mantle, and no medal around your neck.
World War II had over 80 million casualties, but the Allies freed the world from Nazi Germany. Truly, the ALLIES WON.
But in divorce, there are only casualties – no winners.
Even if it is not your fault, at most, you get ½ the community estate.
Even if it’s not your fault, it is likely you will share your children, because the law says it in their best interests to have frequent and continuing contact with both off you.
Legal Divorce 101
So let’s talk about your divorce.
Divorce is the legal separation of your marriage. The tricky part is – relationships don’t just end because the legality of it ends. In order for a marriage to end, there needs to be a separation on other things: Physical, emotional, mental, financial.
Lawyers just handle the legal part. Thus, these are the only issues for your divorce lawyer:
1. Child Custody and Visitation
2. Child Support
3. Spousal support
4. Property Division
5. Attorneys’ Fees
Everything else that does not fall into any of the above 5 categories is merely fluff: NOT legal, NOT a good use of your lawyer’s time or your money.
Examples of things you should ask your lawyer to do
- After both of you have learned about the benefits of having both parents in the children’s lives, if you are still having issues figuring out a parenting plan, have your lawyer craft and negotiate a good parenting plan.
- If you have a complicated estates, such as one or both of you owned homes before the marriage, or you used separate monies before marriage or gifts from parents, to purchase community property and you need to figure out the separate component.
- If you or your spouse own your own business, and support is an issue, have your lawyer explain the options involved in obtaining a forensic to establish income available for support or valuations of the business for division.
Examples of things you should NOT ask your lawyer to do
- Review 100 volumes of your emails and texts, including sexts and videos you downloaded of your ex and her lover, just to prove to your lawyer your ex is a bad person or that you should have full custody.
- Be your weapon of mass destruction, i.e., DESTROY your ex.
Now that you understand divorce basics, let’s move on to law basics and answer the age-old burning question, “Do I need to go to Court for my divorce?”
Each of the 5 issues above are resolved in 1 of 2 ways: Stipulation or Court Order. You can control the first. You can’t control the second.
1. Via Stipulation (fancy word for Agreement).
If you can agree on something (anything!), put it in writing! Your lawyer will draft a Stipulation and file it with the Court. If you two agree, the Court will most likely agree (one exception being child support: it has to be guideline. If below, there must be some law blurb inserted in there for Judge to agree). After you two sign, it is a Stipulation. After the Judge signs it, it becomes an Order. Thus, Stipulation/Order.
2. Via Court.
If you two cannot agree (which is mostly the case in divorce -refer to Emotions and Human Nature paragraph above), you will need to go to court to So if you cannot agree, then you will have to ASK the Court to be the Judge and MAKE AN ORDER. Thus, you ONLY go to court if you cannot agree on things.
Depending on your situation, your lawyer will either attempt to settle, or go to Court. Sometimes they may immediately file a first court hearing (just to secure a date – it takes approximately 60-90 days to get a court date), and then try and negotiate with the other side.
Divorce Procedure 101
Your divorce is handled in steps. It is essential to understand how each one is handled, and which step each one is handled.
1. FILING INITIAL DIVORCE PAPERS.
The first step is to FILE your initial divorce papers. It costs $435 to file your papers. The initial divorce papers are your ticket to ride. The initial papers contain very little information – it is a check-the-box Judicial Council form with 3 pages. There are boxes to check to let the court know what issues are involved:child custody, support, property division. Filing these first papers is a declaration that “I am present! I am filing for divorce. By paying $435, and filing these papers, I am announcing I am a player in this divorce. I don’t necessarily agree or disagree on what is happening at this point, but I am paying to play and reserving my spot.”
2. SERVING PAPERS.
Next, you got to serve these papers. Even though you have paid $435, your case does not START until you have given the other side notice of this. This is known as “due process”. Anytime you initiate legal action, you must give the other side notice and let them know the case is pending (“You got served!”). To serve them, you must have someone who is over the age of 18 and not a party to the case (usually a process server), hand them the papers. Sometimes, if they are agreeable, you can have them sign a “Notice of Acknowledgement of Receipt” for the papers. If so, you can have someone who is not a party mail them the papers, along with this form, and they can sign for it so you do not have to have a process server serve them.
3. WAITING FOR OTHER SIDE TO RESPOND.
After you have served the papers, the other side has 30 days from the date of service to file a Response. Just like the Petition, the Response also costs $435, and is your declaration that you have “appeared in this case, and are paying to play”. Note, if the other side does NOT file a Response, you can proceed with a Default Judgment. This is you saying, “Hi Judge, I filed and paid to play. I served him. He didn’t bother to answer or pay to play, he is not a player to this divorce, therefore I am asking you to grant my requests by default.”
4. TEMPORARY ORDERS.
After the filing and serving of initial papers are done, the next step is to figure out temporary orders regarding CUSTODY and SUPPORT and ATTORNEYS’ FEES. “Temporary orders” is a misconstrued phrase. They are “temporary” in that they stay in place until a Judgment on the rest of the issues are entered. Sometimes it can take years to get a Judgment entered – so “temporary” could mean 6 months or 10 years, but it just means it’s the order in place until a Judgment is entered).
After you separate, but before you are officially divorced with a Divorce Judgment, a lot of things need orders. Where will the kids live? Who will pay the rent/mortgage? Who will pay lawyer’s bills? These types of questions take priority over property division (you cannot divide your property until after you exchange Preliminary Declarations of Disclosures).
Request for Orders
As far as custody and support and attorneys’ fees, the Judge will hear these issues if you file a Request for Order.
Custody is 2 parts: legal and physical.
Legal is decision-making power, and it is either sole or joint. There is no 25% or 33% legal custody. No. Legal custody is either shared or sole.
Physical custody is the actual timeshare of the child. One of the most important, if not THE most important, factor deciding your physical custody timeshare is status quo. Why? Because it’s the KID that’s important here. The courts don’t want the child to be involved in the divorce, and wants to keep the child as stable as possible.
After the physical custody schedule is in place (ie, once a month, etc), we use the timeshare % to calculate child support and spousal support. This part is easy in your case because it is easy to document income. So this part should not consume much time.
The cases in which SUPPORT is a big issue is the self-employed people, or the voluntarily unemployed people – this is where you have to do all sorts of investigation into their income and assets and hire forensics, which is time-consuming and very expensive. This does not apply in your case.
After we reach an agreement on custody and support, the next step is property division.
In order to divide your property, we need both of you to complete the FL-140, FL-142 and FL-150. We will put a list of your assets and debts on the table, and divide them. Again, the outcome is one of two scenarios:
1. You both agree, and I prepare a Stipulation about Property.
2. You don’t agree, and the final step is I set a TRIAL on the issue of property division.
So, let’s finally talk about TRIAL.
TRIAL is the accumulation of ALL issues in this case, whereas the Request for Order Hearing is just a hearing on custody and support. The Judge will NOT hear property matters at the temporary orders hearing. He cannot because we have no information on the property yet.
You can only go to trial AFTER you have gathered all information regarding your assets and debts. In order to do this, you must conduct “discovery” on their assets and debts.
This step can be costly because if if the other side does not disclose, even if you already know all their assets and debts, they cannot WAIVE their disclosures. They are mandatory. So, if they refuse to do the paperwork, your case will be stagnant, and to move it along, your lawyer needs to file a Motion to Compel their responses, and go to Court and get her sanctioned.
The reality is, enforcement is different than law – and if the other side insane amounts of attorneys’ fees to force them to do what they are legally required but refuses to do.
If you are forced to go to trial, TRIAL will encompass all of the issues you have not decided on.
DIVORCE CASE STRATEGY AND SEQUENCE
So, this is the sequence of events you should expect.
1. File Initial Papers.
2. Serve the other Side.
3. Obtain a Stipulation regarding custody and support. If not, obtain a Court Order via Request for Orders
4. Exchange Preliminary Declarations of Disclosures. Maybe conduct discovery.
5. Attempt to Settle or Set for Trial.
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