When ( And How ) Do I File For Divorce

I believe it is a matter of personal choice when the time has come for one spouse to file a request for dissolution of their marriage to another spouse. However, there are factors to be considered, among them:

1. Never take any action immediately following an argument. Chances are you will get over the bruised ego and may later regret any impulsive decision made during the time your feelings are hurt. This is especially true when children are involved.

2. Talk to a friend before making a final decision, preferably one who knows both you and your spouse, hopefully one familiar with the events of the marriage. Stay away from those who say only what you want to hear. Listen with an open mind to your friend’s assessment of the marriage, as well as their opinions of you and your spouse. Sometimes individuals can be praiseworthy, but through no one’s fault simply don’t fit well with another.

3. Try marriage counseling with an open mind to admitting your contribution to the problems arising during the marriage. If your spouse refuses counseling, go by yourself. Maybe your spouse will join after watching your regular attendance. If nothing else you can receive objective advice from your therapist.

4. Sometimes getting away from each other can help. If nothing else it provides a cooling off period, a time to reflect, gather your thoughts and think about choices. However, keep in mind that the date of separation is a very important factor when dividing assets and assigning debts. While this article is not intended to go in depth of this or any other issue, suffice to say that the date of separation is that date “When EITHER SPOUSE no longer intends to carry on the marital relationship.”

Many things can influence this subjective state of mind, such as cohabitation, marriage counseling or simply discussing reconciliation. Keep in mind that the State of California favors marriage, and thus when a Court determines the actual date of separation, it will look for “objective” signs of separation, even when the actual decision to end the marriage is the subjective state of mind for only one person in the marriage.

WHEN IT’S FINALLY TIME TO FILE

When marriage is over (and only you know when you reach that state of mind where the marriage is truly over), then it’s time to file for divorce.

THINGS TO CONSIDER

COURT JURISDICTION

Non one can file an action for Dissolution of Marriage in Los Angeles County, State of California, unless they have been a resident of the County for at least three (3) months, and a resident of the State of California for at least six (6) months (although an action for legal separation may be filed in Los Angeles, California, after residency in the County of three (3) months).

CHILDREN

When children are involved, parents often “turn the other cheek.” However, don’t delay filing for Dissolution when children suffer physical or emotional abuse resulting from the break down of the marriage (or for any reason). Protecting children comes first.

MOVING AWAY WITH CHILDREN

Sometimes after filing for divorce, one parent decides to move out of State with their children, whether back to their home State where parents and other family members live, or simply to a place where better jobs are available. After filing for divorce, any move of substantial distance (for instance, from one County to another) is considered a “Move Away” for the purpose determining child custody and visitation.

When considering divorce, keep in mind that after filing for Dissolution of Marriage, Court permission is required before moving away with children. Permission is not required if the move takes place prior to the filing of the Summons and Petition.

In fact, if the move to another state takes place at least six (6) months prior to the filing the Summons and Petition in California, the Move Away State is considered the children’s “Home State” for purposes of determining custody and visitation (see UCCJEA).

LONG TERM MARRIAGE AND SPOUSAL SUPPORT

The Family Code defines any marriage over ten years as “long term” for the purpose of the Court’s jurisdiction over the issue of spousal support. In short, any marriage over ten years may result in payment of long term spousal support, sometimes for life.

OBLIGATION TO WORK

The Family Code explains that it is the policy of the State of California for all individuals to become self supporting. With that said, there are many considerations regarding not only the amount of spousal support awarded, but also the duration of spousal support.

If the marriage is “short term” (under ten years), and if the receiving spouse is healthy and holds job skills, generally speaking the Court will award spousal support for a term no greater than one half the length of the marriage. Keep in mind that the effort of the supported spouse while seeking and maintaining employment is heavily weighed by the Court considering an award of spousal support. Further keep in mind that cohabitation can be considered as a factor when determining spousal support.

CHOOSING AN ATTORNEY

Selection of an attorney to represent your interests in a divorce action is very important choice. Keep in mind what’s at stake (your children, your assets, etc.) Keep in mind the cost (generally speaking attorneys average $200-$500 per hour). The more experienced the attorney, the greater the cost.

SELF REPRESENTATION

Many people chose to represent themselves in their divorce. If the marriage is short, with no children and few assets and/or debts, perhaps self-representation is the most cost-effective way to obtain a divorce. However, keep in mind that the rules regarding divorce are enforced without regard to the length of the marriage, and even the forms and other paperwork in a simple divorce can be daunting. Don’t be penny wise and pound foolish. Sometimes it’s better to allow an experienced attorney to handle the paperwork and other matters just to have the peace of mind things are done right.