While most people are preparing for Christmas and New Year’s Eve during the month of December, roughly 1 in 5 spouses are planning to file for divorce in January according to a survey done by the law firm of Irwin & Mitchell in 2015.
Why? No one wants to spoil the holidays with a divorce filing and most people want to stick it out for Christmas morning and New Year’s with the kids. For some, divorce can turn into a New Year’s resolution, a way to take back control of your life and direction. Let’s face it, if you’re in a terrible marriage and you’ve been considering divorce for a while January is widely considered as a “fresh start” month for most things.
James McLaren, partner at McLaren & Lee, is quoted as saying “We see a significant increase in people seeking out divorce advice and, ultimately, filing. The number of filings is one-third more than normal. That begins in January and probably goes into early March” in an article published by Market Watch.
If you’re considering filing for divorce in San Bernardino or Riverside County and want to explore your options, you should consult with a local lawyer ass soon as possible. Your attorney will be able to counsel you on how to best prepare for the separation and provide advice on how to prepare for changes in financial matters, housing, child care, spousal support and numerous items that you haven’t yet considered. Even if you and your spouse plan on an amicable & cooperative divorce, an experienced lawyer can help provide insight into the process and help you navigate the filings, procedure and timelines. Here are a few important reasons to hire a local attorney.
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When a uniformed San Bernardino County Sheriff’s Deputy or a private process server personally serves you with divorce papers, you might experience a flood of emotions that include anxiety about the future. Few events have the impact of a marital dissolution because it impacts so many aspects of your life, including your parenting relationship, monthly income, net worth, and future financial security. Many people do not anticipate they will be involved in a divorce, so they are unsure how to protect their rights and safeguard their relationship with their children. The actions you take in the aftermath of receiving a Summons and Petition for Marital Dissolution in San Bernardino or Riverside County can have a dramatic impact on the outcome of your divorce. In this blog post, our Rancho Cucamonga divorce lawyers offer a list of important steps to take if you are served with divorce papers in the Inland Empire.
Carefully Review the Paperwork
The first paperwork people typically receive in a divorce include a Summons and Petition along with some ancillary documents. The Summons (California divorce form FL-110) will indicate that you have thirty days to respond to the Petition (California divorce form FL-100) if you wish to participate in the divorce process. If your divorce is heard in San Bernardino family court or another courthouse in San Bernardino or Riverside Counties, you might also receive notice of an Order to Show Cause. If you receive this document, you should make sure to calendar the court date and seek immediate legal advice. The hearing will be to consider temporary orders (also called “pendente lite” orders) that could involve child custody or visitation, spousal support, temporary possession of your residence, child support, attorney fee advances, and other important issues.
The Summons also includes Automatic Temporary Restraining Orders (ATROS). ATROS are mutual orders that are summarized on the back of the Summons of a Petition for Dissolution. ATROS are restraining orders that restrict the conduct of both parties. These restraining orders are designed to prevent either party from taking actions that will prejudice the other spouse by diverting, encumbering, transferring, concealing or disposing of assets, including insurance policies. ATROS also prohibit a parent from removing minor children from the state without the prior written consent of the other parent. Violation of these orders can carry harsh penalties, so you should seek legal advice before engaging in significant financial transactions or relocating your children.
Speak to an Experienced Inland Empire Divorce Lawyer
Many people will make the mistake of attempting to prepare their own Response and to proceed without an attorney (referred to as proceeding “pro per”). The way you respond to a Petition and Order to Show Cause can have a profound impact on your parenting relationship, finances, property ownership, obligations to pay debts, and living arrangements. Further, parties that attempt to handle their own divorce while their spouse is represented by legal counsel tend to experience undesirable outcomes because the attorney can exploit the unrepresented party’s lack of knowledge regarding court procedures, evidentiary rules, and substantive law.
Even if you believe you and your spouse have resolved most of your issues, an attorney can ensure that your proposed settlement is enforceable, identify any potential pitfalls, and draft the necessary paperwork to obtain your judgment. There are many mistakes that can cause a proposed settlement to go off the rails when parties proceed without attorneys. Sometimes parties will attempt to fashion a settlement based on terms that are not enforceable under California law, such as parents attempting to waive child support. In other situations, the parties might not consider unforeseen issues that make their agreement unfair or unworkable. Further, artful drafting of an MSA or parenting plan by an experienced Southern California divorce lawyer can prevent future disputes and repeated trips back to court for enforcement or modification proceedings.
File a Response or Default
If you fail to respond, the divorce can proceed without your involvement, which means your spouse will likely obtain a judgment consistent with his or her requests (referred to as a “default divorce” or “uncontested divorce”). If you have already resolved all of the issues in your divorce with your spouse, you might elect to allow the divorce to proceed via default. However, you should not allow your divorce to proceed on a default basis without speaking to an experienced Southern California divorce lawyer. Default only constitutes a viable option if no assets or debts have been acquired during the marriage. If the parties have children, a default divorce will not be appropriate because you will want to be involved in decisions regarding parenting time, decisions about major parenting issues, and child support. Divorces that proceed via default also tend to be brief (e.g. a few months duration) so that spousal support is not at issue.
In most cases, you will want to respond within the required time by filing a Response (Form FL-120). The response permits you to indicate your preferences in broad terms regarding child custody and visitation, property division, spousal support, child support, and related issues. The Response also allows you to indicate that you want separate property confirmed to you or that you have a different perspective regarding the facts or outcome of your divorce.
Post-Response Proceedings: Once you have filed a Response, your marital dissolution will proceed to a conclusion along one of two paths. If you and your spouse resolve all of your issues, you can prepare a Marital Settlement Agreement (MSA) which will memorialize the terms of your settlement. The MSA will become a key part of the judgment in your marital dissolution. If you do not reach an agreement, the judge will make orders on unresolved issues. Some temporary orders will be entered during Show Cause hearings while others might be resolved at a Court Conference. The judge can resolve any matters during a trial that are not settled by the parties.
Special Note for Divorcing Parents: When parents divorce, the process is far more complicated. Both parents must participate in mediation in an attempt to reach an agreement on legal custody and parenting time. If the parents cannot agree, the judge might order an attorney to represent the children (referred to as “minor's counsel”). Minor’s counsel will make recommendations to the court regarding the appropriate custody and visitation orders. The judge also might decide that a Child Custody Evaluation must be performed. During this process, the evaluator will meet with both parents and the children and conduct an investigation to determine the best interest of the children. The report and recommendations will carry significant weight with the judge, so parents should make sure they speak to an experienced Inland Empire divorce lawyer about preparing for a custody evaluation. The divorce process becomes especially perilous for parents involved in a child custody dispute without legal representation.
If you have been served with divorce papers in San Bernardino or Riverside Counties, our experienced Inland Empire family lawyers at Schwartzberg & Luther, APC are committed to providing effective legal representation to pursue the best outcome for you and your children. Contact Schwartzberg & Luther, APC at (909) 457-4270 to schedule your free consultation!
Schwartzberg | Luther are attorneys in Rancho Cucamonga focusing on family & divorce law, criminal defense, personal injury and insurance bad faith. Working with clients throughout Southern California and all courts in San Bernardino and Riverside Counties.
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