Divorce
Every divorce situation is different and should be approached as a unique matter. There is an option for legal separation, as well as dissolution of marriage. Contact the Law Office of Alexandra McIntosh at (760) 753-5357, and we can help you through this difficult time.
First Step - Filing a Petition for Dissolution
The first step to filing for divorce is to file the Petition for Dissolution of Marriage or Domestic Partnership. This is a three page document that lays out the basics of the relationship including the date of marriage, the date of separation, information relating to the minor children of the marriage, if any, the reason for the divorce, and the request being made to the court for a judgment of dissolution.
Service of the Petition for Dissolution
The party that files the petition is known as the Petitioner and the opposing party is known as the Respondent. The Respondent must be served with the Petition in order for the divorce process to move forward. Once served, the Respondent must file a response within 30 days of personal service. If a Response is not filed by the Respondent, then the Petitioner may choose to request that a default be entered against Respondent.
Once the Petition is properly served, the Divorce proceedings begins and your case either moves toward settlement or trial.
Sixth Month Waiting Period
In California, the parties cannot be officially divorced until sixth months have passed . . . this is six months from the Respondent is personally served the Petition for Dissolution. This does not mean that the case cannot settle within the sixth month waiting period. It only means that the marital status will not terminate until this waiting time has passed.
There are times when a divorce case settles relatively quickly and a judgment of dissolution is entered by the court prior to the sixth month time period lapsing. In such cases, all provisions of the settlement go into effect upon the judgment being entered, but the actual date when the parties are returned to the status of ‘Single’ is at a later date. .
Automatic Temporary Restraining Orders
Once the Petition for Divorce has been filed and served, there are automatic temporary restraining orders (ATRO’s) that go into effect immediately. These orders stop either party from hiding assets, selling assets, or moving assets including cash, stocks, retirement accounts, etc. They also stop either spouse from canceling or changing any health, dental, auto, and life insurance plans without the written consent of the other spouse or an order from the court. It is very important that a party understand the ATROS and abide by them. Violation of the ATROS could result in sanctions and attorney’s fee orders against you.
Fiduciary Duties During Divorce
Each spouse in a Divorce owes a fiduciary duty to the other spouse that he or she would owe to a business partner. Marital assets must be handled business assets and managed and cared for in the same manner. If the parties own a home together, then the house must continue to be maintained by the party living in the house. If the parties own a business together, then the business must continue to be run and maintained with as much responsibility and care as it was during the marriage. Intentional or negligent damage to a marital asset due to one spouse amounts to a breach of that spouse’s fiduciary duty to the community and to the other spouse.
Breach of fiduciary duty is taken very seriously by California Courts. In particularly egregious cases, the court may award an entire asset to the non-offending spouse in a case of breach of fiduciary duty.
Financial Disclosure Requirements
A party cannot obtain a legal separation or a divorce unless there is a full disclosure of all assets and debts. California has very strict requirements when it comes to financial disclosures between parties in a divorce case. Within 45 days of the filing of a petition for divorce, each party is required to make full disclosure of all assets and debts as of the date of disclosure and to serve on the other party with a ‘Preliminary Declaration of Disclosure’ along with the supporting documents.
Each party must complete a Schedule of Assets and Debts and a Income and Expense Declaration. The Schedule of Assets and Debts is a full list of all assets and all debts including the date of acquisition, the current fair market value estimate, and any money owed on an asset. The Income and Expense Declaration is disclosure of each party’s monthly income and monthly expenses. This document will include information related to earnings, expenses, tax filing, educational background as well as assets such as bank and investment account balances.
Full financial disclosure is one of the most important aspect of the preparation of a divorce case. If one party discovers that the other party has willfully failed to disclosed assets or income, it can have devastating consequences on the non-disclosing party including sanctions, attorney’s fees and the setting aside of an judgment of legal separation or dissolution.
Legal separation is a process that enables spouses to live separate and apart under a separation agreement or judgment. Although spouses do not live together and will have completed property division and established child support, custody, visitation and spousal support, they are not legally divorced and therefore cannot remarry. Legal separation may be an option that a married couple will wish to consider for religious reasons, to maintain health or medical insurance benefits, or for personal reasons when divorce is to final or aggressive an action.
Uncontested Legal Separation or Divorce
Although it may be a complicated process that will require agreements regarding difficult issues, a divorce does not have to be an expensive, adversarial process. If you and your spouse are on amicable terms and agree upon, or believe you can reach agreements regarding, the terms of your divorce, you may be able to complete an uncontested divorce. You can save a great deal of time and money and spare yourself the stress associated with a contested divorce in family court by considering an uncontested legal separation or divorce.
In an uncontested divorce, spouses reach their own agreement regarding all matters involved with the divorce – custody and visitation, child support, spousal support and property division – without the intervention of the court. They may agree on these issues initially or some negotiation may be necessary, but the important thing is that the spouses can agree without needing to involve a judge.
An uncontested divorce may have numerous benefits for a family. Not only is it less expensive and time consuming, but it is also often much less stressful than a divorce completed in court. When spouses reach their own agreements regarding custody, property and support, this also means that they can decide what works for them, rather than be forced to comply with a judge’s ruling based upon California divorce laws. The Law Office of Alexandra McIntosh can be reached at (760) 753-5357 and we can take care of every aspect of an uncontested case – start to finish – so that you never need to see the inside of a court room!
High Net Worth Divorce
Some aspects of a divorce involving a high net worth couple are the same as those for a couple of modest means. However, a high net worth divorce presents additional challenges. Issues involving asset valuation, taxation of appreciated assets, and the possible payment of alimony require careful analysis and creative solutions.
The attorneys at the Law Office of Alexandra McIntosh have experience in divorces involving all types of property division issues, including divorces involving family-owned businesses, complex property holdings, dual income couples and high net worth couples. We work tenaciously to protect the property rights of our clients at all stages of the legal process.
In divorces involving complex property issues, we frequently retain the services of financial experts, such as a business valuation specialist, a tax accountant, a forensic accountant, and depending on the assets involved, various types of appraisers. These professionals can provide important insights into key financial issues and can lay the groundwork for the negotiation of a favorable property settlement. However, if necessary, we will be prepared to go to trial.
Our goal in every case is to protect the rights and interests of our client, while obtaining a settlement that is fair, and that enables the client to move forward in his or her life.
