Protecting Your Future

My Spouse Just Asked for a Divorce – What Do I Do Now?

| Apr 2, 2021 | Firm News |

“Our D-I-V-O-R-C-E becomes final today / Me and little J-O-E will be going away / I love you both, and this will be pure H-E-double-L for me / Oh, I wish we could stop this D-I-V-O-R-C-E.” Tammy Wynette, D-I-V-O-R-C-E

Whether you have been married for 1 year or 30 years, divorce can be devastating if you are not expecting it. You have been served a “Summons” and “Petition” for Dissolution of Marriage (FL100). Now what?

Procedurally, you have 30 days after you have been served to file your “Response” (FL120). You may be feeling overwhelmed and emotional, but you must adhere to the deadlines and protect yourself. If you fail to file your response within 30 days of service, your spouse can file a “Request for Entry of Default” (FL165), which would allow your spouse to proceed with the divorce without you and be granted all of his or her requests contained in the petition. You could file a motion asking the court to set aside the default, but you would need good reasons, and it would be up to the judge. You do not want to put yourself in that position.

California is a “no fault” divorce state. This means that it does not matter why your spouse wants a divorce or what kind of spouse he or she was during your marriage. It also means that your spouse can file for dissolution without your knowledge or without discussing it with you first. You cannot “object” to a divorce; your spouse will be granted the divorce whether you agree or not.

Generally, all assets and debts acquired during marriage are presumptively community property (Family Code §760), which means that you are both entitled to half of the value of any assets, and are also responsible for half of all debts. This presumption can be overcome by evidence that shows an asset or debt should be someone’s separate property, such as an inheritance or a gift.

The first thing you should do is to gather your financial information. This task is tedious but is the least emotional aspect of the process. Start by gathering all of your financial information and apply a methodical approach – list your assets and gather the coordinating documents – mortgage statements, car titles or lease agreements, life and health insurance declarations, bank statements, retirement account statements, credit card statements, and the like.

All the forms you will need can be found on the Los Angeles Court’s website, https://www.courts.ca.gov/forms.htm. Using these forms as guides, you can compartmentalize all of the assets you have and gather documents showing these assets, and the same with your debts.

If you anticipate difficulties with your spouse in this divorce, or if you feel as if you need more information about your rights, you may need the assistance of legal counsel. You must act fairly quickly in order to allow your attorney sufficient time to efficiently do their job for you, especially if you wish for your attorney to file the response to the petition in a timely manner.

The only way to finalize a divorce is either by agreement or trial. A case can be simple and inexpensive, or complex and expensive, depending upon how you and your spouse choose to navigate this process.

The date of separation (DOS) will be important going forward. Any assets and debts acquired after the date of separation are separate property. The DOS is also determinative for dividing assets, such as retirement accounts and 401K’s. Hopefully you and your spouse can agree on the date you have separated. If you and your spouse disagree on the date of separation, this could become an issue for trial.

Kids: If you and your spouse have one child or more, you will need to file an FL105, the declaration under the “Uniform Child Custody Jurisdiction and Enforcement Act” (UCCJEA), which means, among other things, that your kids will be under the jurisdiction of the court until they turn 18. Hopefully, you and your spouse can create a workable custody and visitation plan together. If you and your spouse cannot agree, the court will need to decide these issues, which can become time consuming and expensive.

Mental health: Dissolving a marriage, whether it was “good” or “bad”, “short” or “long”, will take an emotional toll on your mental health. There can be nothing more difficult than separating your life from your partner and changing the dynamics of a family. Having someone to help you get through it, whether it be a good friend or a professional therapist, is important to help you navigate the emotional landmines you will face, while at the same time helping you keep your head and focus on finances, cars, houses, bank accounts, retirement accounts, credit debts, and, most importantly, kids. Remember that you are not alone, you are not the first, or the last, and there are a number of resources to help you and your family through this. You will be OK.