A divorce is really a three step process: (1) initiate, (2) value and (3) settle/set matters for trial. In theory, it should not take longer than a few weeks to resolve all issues in a divorce case. Why divorces take longer may be because of mental illness, addictions, emotions, dishonesty and/or unethical attorneys. I have had people be honest about their income and assets and get their divorce cases done in a matter of weeks and I have had people be dishonest or bad tempered, perpetually, which drags the process out for everyone and results in too much money and time being spent. There are ways to diminish the impact of these obstacles and avoid your divorce dragging on. The solution is to strictly adhere to the three step process, be honest, stay in contact with your attorney and, if need be, set the matter for trial.
Step One. To initiate a divorce case, you need to file a Petition for Dissolution of Marriage. If you were served with the Petition, then you need to file and serve your Response. Motions for restraining orders, child support, spousal support, child custody, parenting plans, property division and attorney’s fees may need to be filed at this stage. You may also want to discuss any Trusts or Wills that you have in place with your attorney at this time. To make this stage easier, see my blog post on the list of documents your Family Law attorney will need as soon as possible.
Step Two. Value your assets. Pursuant to California Family Code section 2104 disclosure documents, including the Schedule of Assets and Debts and Income and Expense Declaration, must be completed and exchanged (1) within 60 days (for the Petitioner) of filing the Petition, or (2) within 60 days of filing the Response (for the Respondent). These disclosure documents require values, so work with your attorney to get them. If you own real property, have it appraised by a professional appraiser who has experience testifying in Court. Get suggestions for appraisers from your attorney and then take command of this process. Be prepared to secure property profiles going back to the date of purchase for every piece of real property that you own.
If you have collections (books, coins, stamps, pens), art, jewelry or other items that require an appraisal, then get these things appraised. Again, get suggestions for appraisers from your attorney and then take command of this process as well. For vehicles, boats, trailers, motorhomes and related forms of transportation, get the vehicle identification numbers and then use Kelley Blue Book for the values for the cars. Use appraisers for classic vehicles and everything else. Secure bank statements, investment and retirement account statements and any other statements for accounts on which your name appears alone or with another person. Secure actuarial valuations for retirement accounts to determine the community property interest and have your attorney join these types of accounts to the divorce case. Get all credit card statements and other statements evidencing debt. The values for your spouse’s assets can be ascertained through, my favorites, subpoenas for records and depositions.
These steps are not difficult, but they are time consuming – create a step-by-step plan with your attorney and then take a day off from work or taking care of the kids and get things done. Ask what you need to do, what needs to get done and then do it. It is a waste of your time and money to spend your sessions with your attorney complaining about your spouse or rambling on about emotional issues – California is a “no fault” divorce state, so complaining and emotional issues are irrelevant. Further, a divorce is an objective process – get a mental health counselor right away and save the subjective stuff for him or her. The bottom line: when you meet with your attorney, ask what needs to be done, set a deadline and then do it. Do not make excuses.
Step 2 is also the step where tracing separate property to community property can take place for purposes of determining reimbursement. Either you can conduct the tracing or a forensic accountant can at a cost – your choice. If a spouse has divested him or herself of earning capacity at some point before, during or after the marriage then a vocational valuation may also be included in this step. If you are doing your job in securing the information in Step 2 and your spouse is doing his or her job in securing this information then you should have values for your assets and the other spouse’s assets approximately 90 days from service of the Petition for Dissolution of Marriage. There are exceptions to this 90 day rule (i.e. mental illness, addictions, emotions, dishonesty or unethical attorneys). Beware, but try your hardest to keep the momentum going – although it may cost more up front to bulldoze your way to the 90 day mark, it may be cheaper in the long run because the longer the divorce drags on the harder it may be to obtain records, prove the marital standard of living for purposes of spousal support…etc.
Additionally, Step 2 gets confusing in that you will have Court hearings, initiated during Step 1, taking place simultaneously. To keep your divorce moving forward, you have to keep up the pace. Set appointments with your attorney, be clear on what you need to get done before your next appointment and get it done. With some clients, I like to make lists during our meetings, give him or her copies of the lists after our meetings and then check off the lists during the following appointment. If things need to be added or subtracted from the list between appointments, then e-mail is a great way to get this done.
Step Three. Once everything is valued, then it needs to be divided. Draw a table with two columns. Put the assets that you want, and the debts you are taking on, in your column with their values, and then do the same for your spouse. Total up the columns. Make certain to factor in any reimbursements. If you are getting more or less than 50% of the assets and debts then either you or your spouse need to pay the other spouse an “equalizing” payment. Child custody and parenting plans should be set by this stage as well. Make a proposal for resolution of issues to the other side. If you cannot agree on values for the assets/debts and/or child custody and parenting plans, then the Judge will need to decide at trial; otherwise, any issues resolved are then incorporated into a Judgment.
Issues always seem to “pop up” in divorce cases because they are based on people’s lives and lives are subject to change. Each divorce case is different because each person is different; there may be more or less to do at each step above and this is for you to flesh out with your attorney. As an aside, I see a lot of folks who want to skip to Step Three after not fully doing what Step Two requires – they think they have reached agreements on values with their spouse or, maybe, have reached an “agreement” on all issues in their divorce case. I have yet to see a case where someone does not get buyer’s remorse and back out at the last minute or try to re-negotiate to get more or cheat. In the end, skipping steps costs the same or more than following steps exactly. If money is a concern, then go hourly with your attorney – this becomes difficult, however, when there are Court hearings and/or rounds of correspondence going back and forth. Whichever route you choose to take, I hope this three step process brings you some clarity and, more importantly, some peace.