~ Divorce And Legal Seperation Information ~


I Want A Divorce.  What Are My Optoion?

We hear this question a lot from our clients and it’s a great question.  The fact is that some people have a pretty good idea of what their options are and other people don’t have a clue.  That’s ok, because we want you to fully understand all of your options, before you make any important decisions and we will not only answer any questions that you might have, but we’ll also try and answer questions that you should have asked, but didn’t think of.  The whole goal after all is for you to fully understand all of your options, so that we can help you make the best possible decisions about the unique circumstances involved in your life and in your case.

What Is an Uncontested Divorce?

Simply put, an uncontested divorce (sometimes called a collaborative divorce) is a divorce where the parties have made the mature decision to work together to resolve all of the various issues necessary to end their marriage.  Choosing to put your differences aside and work together to end your marriage will not only save you time, energy and perhaps most importantly, significant money, but it can have a positive effect on all of the peripheral relationships that are invariably affected when a couple decides to get divorced. People seldom think about how a divorce is going to affect their children, their friends and their relatives, but it does and the uglier the divorce becomes, the more negatively it affects everyone involved.  

In an uncontested divorce, typically one party will hire an attorney, who will complete the necessary paperwork on behalf of that party (their client) to make sure that there is full disclosure of all assets, debts, income and expenses, as required by law.  The other party (who is not represented by the attorney), will have to make a similar disclosure and can use the documents that the attorney drafted as a guide.  The attorney will then draft a lengthy document called a Stipulated Judgment, which is very similar to a legal contract that contains specific details about the various agreements reached by the parties regarding who the children will live with and when the other (non-custodial) parent will get to visit them, how much money will be paid for child or spousal support, how their assets will be divided and their debts will be paid.  The Stipulated Judgment will also contain a number of boilerplate provisions that must be addressed before a Court has the legal authority to grant a divorce.  

Once all the necessary documents have been drafted (there will be quite a few), the other party will then have a full and fair opportunity to review the documents, including having those documents reviewed by their own independent attorney if they choose to do so.  We draft documents that are fair and equitable to both parties, so that we don’t create problems for the parties to fight over - after all, isn’t that the whole point in working together in the first place?  Remember that working together does not mean getting run over by the other party – it means working together for a fair and equitable end to your marriage, including all of the issues that need to be decided.

An uncontested divorce is a little like a mediated divorce, except the parties will usually have a pretty good idea about how they’re going to handle each of the issues that have to be decided and resolved and an attorney will actually represent one of the parties to facilitate the praparation of the numerous documents that have to be submitted to the Court.  If, on the other hand, the parties aren’t sure what needs to be decided or are having a hard time coming to an agreement about certain issues, Mediation may be a better option.  

In Mediation, the Mediator (who is preferably an attorney), will help educate and guide the parties through the various steps needed to resolve their marriage, but won’t actually represent either party.  The Mediator, by remaining neutral actually acts as an asset for both sides to help them reach a mutual agreement that they can both live with.  If you would like more information on how Mediation might help you, click here for more information.  If you would like information on how you can get your entire divorce completed for a flat fee through Mediation, click here.

What Is a Contested Divorce?

When two parties can’t reach an agreement on some or all of the issues necessary to dissolve their marriage, whether it’s because of anger or hurt feelings, the matter is called “contested,” as the Court is going to have to make some or all of the decisions necessary for the divorce to be granted.  It’s not uncommon for some parties to disagree about child custody, support, or the distribution of their various assets.  In fact, in some unfortunate cases, the parties simply can’t seem to agree about anything.  Regardless of what the dispute is about, the Court will ultimately be asked to make a decision on the “contested” issues, often times following a hearing (which is frequently referred to as a trial in Family Court), where testimony and evidence is presented for the Court’s consideration.  

This is, without a doubt, the most difficult and expensive way for two people to resolve their differences and end their marriage.  A classic example would be a case in which the parties each spend $1,000 fighting over a couch that could be purchased brand new for $800.  Then, after the fight is over, one party ends up with the used couch and both parties end up with a sizable attorney bill.  In reality, no one wins in these types of situations. Thankfully, these are the very types of emotional mistakes that we can help you avoid, so that you can avoid wasting $1,000 to buy a used couch that you might not have even liked in the first place.

Can I Get Divorced Even If My Spouse Does Not Want To?

The simple answer is yes.  For several decades now, California has been a “no fault” state, which means that there does not have to be any particular “grounds” needed to ask the Court to grant a divorce.  Many years ago, there were a limited number of acceptable reasons (“Grounds”) that were required before the Court could grant a divorce.  Times have changed and now either party can simply ask the Court to end a marriage, even if the other spouse does not want to get divorced.  In fact, the Court is not even particularly interested in why you want to get divorced, only that “irreconcilable differences” have arisen in the marriage, such that one of the parties now wishes to end the marriage.  In reality, the very fact that one of the parties wants a divorce is in and of itself, evidence that “irreconcilable differences” have arisen.

Moreover, except in very limited circumstances, the Court is not even going to be particularly interested in how your ex-spouse behaved during the marriage.  For example, the Court is not going to care that your spouse had an affair, worked too much or was emotionally distant from the family during those rare times that they were actually at home.  On the other hand, the Court will be very interested if, during the marriage, there was a documented history of domestic violence, drug or alcohol abuse.  Domestic violence, drug or alcohol abuse can all be significant factors for the Court to consider, not only when choosing which parent a child might ultimately live with following a divorce, but also in determining the amount of spousal support that is going to be awarded, which can be increased in appropriate cases where a documented history of domestic violence is present. As such, it’s critically important how your facts are presented to the Court, especially since you usually only have one chance to make a good first impression.

What If My Spouse Is Hiding Assets?

Unfortunately, child and spousal support is one of the most painful and highly contentious aspects of almost every divorce.  In reality, many people don’t want to pay their ex-spouse support, especially if it means that their new lifestyle is going to be lower than they would like.  The same is often true regarding child support as well.  As a result, it’s not uncommon for one party to take, sometimes very sophisticated steps to hide assets and income from the other party in an attempt to reduce or eliminate the amount of support that may be ordered by the Court.   Paople who are paid under the table, or in cash pose a particularly difficult problem.

This is where the experience of the Law Offices of Werno & Associates pays significant dividends.  Not only are we outstanding in the area of family law, we are equally outstanding in the area of business law and civil litigation.  Because of our extensive business experience and as a result of working with our clients for many years to structure complex business deals, we are extremely familiar with how money flows, how it is hidden and where people might hide it.  We have also worked on numerous occasions with forensic accountants to document the true flow of money in a marriage or a marital business, so that can we fully establish the totality of the marital assets and make sure that our clients receive everything that they’re legally entitled to receive under California law.

What Is a Legal Separation?

There are certain situations where a divorce is just not in the best interests of the parties.  Perhaps religious reasons dictate that you can’t get divorced or you spent many years with your partner and you still want to provide for them, without remaining married to them or being legally liable for their debts and actions.  Perhaps you just want to care for your ex-spouse by preserving their eligibility for medical insurance and other benefits that can only be received by staying married.  Another common reason some people choose to pursue a Legal Seperation, rather than a dissolution is that they don't have the mandatory residency requirements necessary for the Court to obtain personal jurisdiction to grant a divorce.  In these cases, some clients elect to file for a Legal Seperation to get the process started and then later, when they do have the necessary residency requirements, convert their Legal Seperation to a dissolution.  There is no residency requirement to file for a Legal Seperation or for the Nullity of a marriage.  To help you better understand the concept of "venue," we have provided some detailed information below.

A Legal Separation is a legal status that is bestowed upon two parties by the Court, in much the same way that you become divorced.  In seeking a legal separation, you will still have to resolve most of the same issues that would have to be resolved in order to obtain a divorce, however, once granted, the parties are still married, but are no longer legally obligated for the debts and actions of their spouse.  Conversely, if your former spouse wins the lottery the day after a legal separation is granted, all of the lottery winnings become the other spouses’ sole and separate property and you will have no legal right to any of that money.  

Because of the unique circumstances of a Legal Separation, the Court will typically not grant that status unless both parties are in complete agreement regarding the request for a Legal Separation.  If you ultimately decide to become divorced, you can ask the Court to take that final step at a later date.  Deciding whether a Divorce or a Legal Separation is appropriate in your unique circumstances can be a difficult decision and we can help you understand the benefits and potential problems inherent with each decision.

Personal Jurisdiction, Subject Matter Jurisdiction, Domicile and Venue

Before a Court can make orders that are binding and enforcable on someone, the Court must first have the proper jurisdiction, which is simply a legalistic way of saying that the Court must have the legal power over someone or something.  This power can be broken into two separate and distinct categories.  The first is called Subject Matter Jurisdiction, which is merely a way of saying that the Court has the authority to hear a particular type of case.  For example, a Probate Court, which is a Court that typically deals with the money and property that people leave behind when they die, would not usually have the legal authority to make orders about who was at fault in an automobile accident.  similarly, a Criminal Court would not have the authority to enter orders about how much money one parent should pay another parent for child support.  As such, the Court must have the proper Subject Matter Jurisdiction in order to properly decide a certain type of case.  To simplify our discussion, just know that cases involving divorce, legal seperation, nullity, child custody, visitation, child support and spousal support are all brought in the Family Law Division of the Superior Court of the State of California. 

In addition to Subject Matter Jurisdiction, the Court must also have Personal Jurisdiction over a particular person in order to be legally entitled to make orders that are binding on the person.  Personal Jurisdiction allows the Court to order a person to do certain things such as pay money, perform or refrain from performing certain acts and so on.  Personal Jurisdiction is a function, in part, of something called Domicile and the following discussion is a simplification of the issue.

The term Domicile simply refers to where a person "lives," which can be confusing because where someone resides is not necessarily where they are domiciled.  For example, someone who lives in the State of California might be in the armed forces and stationed abroad, where they reside for some period of time, or they might be an employee of a large, multi-national corporation and residing somewhere else in the world while on assignment.  Now, in each of those situations, the person may actually be physically staying in a different country (or another state) and yet remain a resident of the State of California for domicile purposes.  One your domicile is in California, you can then utilize the court system.  You must, however, commence your case in the proper place.

California Code of Civil Procedure § 395 sets for the rules regarding where and when a case can be filed.  To establish proper venue for purposes of utilizing the Courts of the State of California to obtain the dissolution of a marriage (a divorce), at least one party must be domiciled in California for at least six months prior to the filing of the divorce petition.  You must also be a resident of the County in which you file for three months immediately prior to the filing as well.  Domicile is determined by a physical presence in the state plus the intention to remain in the state indefinitely.  There is no such requirement to file for a Legal Seperation or Nullity of a Marriage.  Once a person meets the venue requirements, they can "avail" themselves of the services of the Court for the purposes of seeking a divorce, legal seperation or nullity.   The relevant portions of CCP § 395 are:

(a) ... In a proceeding for dissolution of marriage, the superior court in the county where either the petitioner or respondent has been a resident for three months next preceding the commencement of the proceeding is the proper court for the trial of the proceeding.  In a proceeding for nullity of marriage or legal separation of the parties, the superior court in the county where either the petitioner or the respondent resides at the commencement of the proceeding is the proper court for the trial of the proceeding.  In a proceeding to enforce an obligation of support under Section 3900 of the Family Code, the superior court in the county where the child resides is the proper court for the trial of the action.

As can be seen above, for the purposes of a Legal Seperation or Nullity of a Marriage, there is no minimum time requirement that a person must live in California before utilizing the Court system. 

The Other Party Is Living In The United States,
Can I Still Use The California Courts?

The short answer is probably.  Why probably?  Well, because there are still places on the planet where even the California "long arm statutes" can't reach.  However, service of process can be effected in much of the world, provided, of course, that your case can properly be brought in California in the first place.  The primary concern that the Court has is that the opposing party be given notice of the legal proceedings and an opportunity to be heard, prior to an order being entered.  As such, there are certain unique steps that must be followed when handing a divorce, legal seperation or other matter involving a party who resides in a foreign country.  Despite these additional challenges, generally speaking, once jurisdiction in California has been established, most people living abroad can be lawfully served so that the case can proceed in a normal fashion.  

Regardless of how you would like to proceed, we can help.  Feel free to call the Law Offices of Werno & Associates today at 714.542.4466 to discuss how we can help you.


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