May the New Year Bring You a New... Divorce?

May the New Year Bring You a New... Divorce?

For couples just trying to hold it together during the last few months of the year, January can feel like a great time to start fresh… Whether that means legal separation or divorce, January can be a much easier time than the holiday season to end your marriage.

May the New Year Bring You a New… Divorce?

Every year January seems to bring a surge in divorce filings. According to James McLaren, president of the American Academy of Matrimonial Lawyers, “The surge happens on Divorce Monday. 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.” But what’s the reason for the increased numbers? While no time is really a good time to go through divorce, it seems the already stressful holiday season can be an even harder time. As McLaren says. “It doesn’t look very good to sue your spouse for divorce on Christmas Eve.” Additionally, it can be harder to arrange in terms of the court’s availability. “Those things are very difficult to arrange when there’s only three weeks of court time available,” he adds. What can make it even harder is children. Unhappy couples often try to hold it together through the holidays for the sake of the family.  “You convince yourself that it’s only right to give your kids one more holiday season with their family intact, and there’s nothing wrong with that,” says psychotherapist Abby Rodman. Regardless of your reason for holding off through the holidays, know that there is another option to divorce available: legal separation.

Legal separation does not end a marriage or domestic partnership and parties are not allowed to remarry or enter a new domestic partnership. This is a good option for couples looking to separate their finances and property without divorcing There’s a lot of “new territory” when it comes to legal separation and how to act. Whether the legal separation ends in reconciliation or divorce, there are some rules of engagement you should follow. Here are some tips to consider.

  • Use this time to reflect on your marriage and how you are feeling regarding the process.
  • Consider the emotional needs of any children that are involved.
  • Remember legal separation is not the time to jump into a new relationship.
  • Keep all communication open with your spouse. Try to be respectful in all forms of communication. This will mean less stress for you and any children involved.
  • Set up a parenting plan that outlines regular visitation schedules. This should follow along with your child’s daily activities, such as school and any extra-curriculars.
  • Follow every responsibility outlined in the legal separation agreement. This includes any child support payments or spousal support payments. Not doing so might mean court time or fines.

If you and your spouse have decided to try legal separation instead of, or prior to getting a divorce, it’s important that you work with a divorce attorney to create a legal and binding separation agreement. This agreement will offer you legal protection should your spouse violate the agreement you have come to.

There are numerous things that should be contained in your separation agreement, including the following (if they apply): Spousal Support -Who will be paying whom? How does this impact taxes? Benefits - Legal separation allows you to retain certain benefits gained during a marriage, such as health insurance. Home -  Outline who will pay for the home mortgage, as well as the maintenance of the home, such as utilities and lawn care. You should clearly define who is able to live in the home. Joint Accounts - This includes: joint checking, savings, and credit accounts. You might also choose to freeze these accounts or close them and open separate accounts. You should make it clear who pays what account. Protection from Acquired Debt - A legal separation agreement should also outline any debt in order to shield you from being held responsible for debt acquired during the separation.

Remember that a legal separation is not a divorce. While it gives a couple time and space to decide what the next step is, it is not the official end of a marriage. If you wish to return your legal status to “single” you will need to file for a legal divorce. Here’s a little information on what you should expect out of the divorce process.

Divorce

A divorce, also known as dissolution, legally ends a marriage or domestic partnership. Following a divorce, both parties are considered single, and thus free to enter a new marriage or domestic partnership. In California, there are two grounds for divorce: irreconcilable differences and incurable insanity. Two types of divorce are available in California: Summary Dissolution and Regular Dissolution. Summary Dissolution provides an easier way to handle divorce, as it only requires a few forms. You do not have to appear before a judge either. Summary Dissolution is only available to those who have been married or registered domestic partners less than five years, have no children together, and have few assets and debts. If a couple does not meet the requirements for Summary Dissolution they will need to file for Regular Dissolution. Know that every couple’s relationship and marriage is different, and that because of that every divorce will be different. For example, you might need to work out child custody agreements, while your friend’s divorce did not include child custody issues. Working with an attorney is the best way to determine the specific needs of your divorce. Still, there are some basic procedures that might apply. We discuss those steps below.

Steps for Divorce

1. File Petition

The first step in the divorce process is filing a petition. This must be done even if both spouses are okay with divorcing. One spouse must file a petition with the court to ask for a divorce. This petition states the grounds for divorce. In California, this is typically “irreconcilable differences.”

2. Temporary Orders

If a spouse is dependent on the other for financial support or will have custody of the children, that spouse will need to ask the court for temporary orders for support and custody. A temporary order for these things is usually granted within a few days and remains in effect until a full court hearing. If the spouse seeking the temporary order is the same spouse that is filing the petition, they should file the temporary order at the same time. If the spouse seeking the temporary order did not file the petition, they need to file their request for the temporary order as soon as possible.

3. Service of Process

The spouse that files the divorce petition will also need to proof of service of process. This is a document that proves a copy of the divorce petition was given and received by the other spouse. You can either work with a process server, or in most cases when you work with a divorce attorney, they handle this part of the process.

4. Response

The spouse receiving the service of process needs to file a response to the petition. The responding spouse may want to dispute the alleged grounds for divorce. If there is disagreement regarding property division, support, custody, or any other issue, this should be set out in the response.

5. Negotiation

Spouses will need to negotiate their differences if there are any. This is when mediation or collaborative divorce processes work. If spouses still do not agree, they may need to go to trial.

6. Trial

If spouses cannot come to an agreement on any aspect of a divorce, they will need to go to trial where a divorce court judge will rule on the divorce agreement.

7. Creation of the Order of Dissolution

The order of dissolution is a decree that officially ends the marriage and spells out how all aspects of a marriage, including: the property and debts, custody, support and any other issues are to be divided. Two spouses that are able to negotiate on their own are able to draft an order of dissolution and submit it to the court. If this complies with the set legal requirements and both parties entered into it knowingly and willingly, then a judge approves it.

Working with a Divorce Attorney

If you are facing a divorce in the new year, you should work with a divorce attorney that can take a look at your specific situation and give you advice based on it, rather than approach it with a one size fits all mindset. Your specific situation will be particular to you and your marriage and the way your life was set up during the marriage. This might mean major financial decisions regarding retirement funds, property, child support and custody, and alimony. A divorce attorney will work with you to help you decide how you want to tackle these elements of your marriage and divorce, while also providing guidance and support. They will be able to lead you through the process while keeping you from procrastination and caving into pressure. They’ll also be able to help ensure you meet all the required timelines while ensuring that you get a fair case and trial should you need to go to court. Lastly, they’ll be able to help you find the freedom and new life you are seeking - one that is entirely on your terms. For advice on divorce, you need the expert law firm of 619 DIVORCE. Schedule a consultation today. (619) DIVORCE 3555 4th Ave San Diego, CA 92103 Phone: (619) 503-3050