It is never easy to make the decision to end a marriage. Divorce can be a hugely personal and emotional process. More often than not, if uncontested, it can be that an attorney can handle the process for both parties. However, if there is significant property and children involved, it is best both parties are represented by their own counsel. Here are three things to keep in mind
- Date of Separation:In California dissolution cases the phrase “Date of Separation” (“DOS”) is what we refer to as a “term of art”–it is a phrase with legal significance separate from its colloquial usage.
In California, this legal term refers to the day that one spouse finally determined that his or her marriage was over, and subsequently did not change his or her mind. If there is a contest over date of separation, the court looks to external behaviors which support the internal decision to finally end the marriage. Commonly, the court will look at whether the parties maintain a romantic relationship, whether they hold themselves out in public as man and wife, whether they exchange articles of affection, whether they maintain joint finances, whether they engage in therapy or similar to revive the marriage, whether they communicate with each other or third parties about continuing the marriage, or getting back together, etc. The court is looking for “indicia of finality.”
- Fiduciary Duty: The California Family Code imposes fiduciary disclosure duties on spouses who are dissolving their marriage. These duties require each party to disclose information and documents that are material to the case – without being requested. In transactions between themselves, spouses are “subject to the general rules governing fiduciary relationships which control the actions of persons occupying confidential relations with each other,” which “imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other.
- Divorce Options:There are three main routes to take during a divorce. Mediation, collaborative divorce, and litigation.
Meditation tends to be the least costly but will only be successful if both parties are willing to work together with one expert. All documents and matters discussed in mediation are completely confidential, however, the final judgement does become a public document and is filed with the court. This route of divorce is often the quickest route.
Collaborative divorces involve divorce lawyers for each party involved. It generally costs more than mediation and will also take longer because there are both meetings with just the client and their divorce lawyers, as well as the other party and their divorce lawyers. Everything, except the final judgement, is kept confidential.
Litigation often results when the parties involved cannot agree or work with each other, or if there is a history of abuse, or a history of a power imbalance. This process is not private — all of the pleadings are put into the public record. Litigation is the most costly of all the options because if the case goes to full litigation it can go on for a long time thus driving the cost of the divorce up. A judge will make the final decision in this type of divorce, but it can be appealed which can drive the cost up even more. This divorce route takes the longest as well.