Frequently Asked Questions
Do I need a lawyer?
An attorney helps to make sure the other party doesn't take advantage of you. The divorce process requires decisions be made that can have permanent and devastating implications if not made properly in the first instance. A good attorney will help you avoid mistakes.
Mistakes, if corrected later, will cost more than if avoided in the first place. Divorce is a complicated process that terminates marital status, determines custody of your children, divides your assets and sets financial support. If you and your spouse already know your legal rights and responsibilities in these areas and have no disagreement on settlement, you may be able to explore alternatives to litigation, but again an attorney can help guide you to the solution that is best for your situation.
By way of example, a male client initially tried to represent himself. He went to his wife's attorney and signed a number of documents. When he sensed what he had agreed to was not a fair division of the property, he sought assistance. As it turned out, the proposed division of property submitted by his wife's attorney shortchanged him by at least $100,000. Had he sought representation initially, the situation would have been avoided entirely and the client would have saved thousands of dollars by not having to undo this agreement.
The attorney's job is to see that you know the full range of opportunities and risks under the law before each decision is made that impacts your legal or financial situation. Each decision in the process affects the next decision because of the law's inclination to leave matters as they are rather than change them.
If you have any doubts about your legal situation, see your attorney on a "consultation" basis.
Do you offer free consultations?
Yes we do. If you would like to schedule a free telephone consultation or make an office appointment to discuss your unique family law situation, please fill out our consultation request form and a representative will contact you, usually within 24 hours.
I have a quick question; can you answer it over the phone?
The answer to even a simple question can be impacted by surrounding facts and issues you may not think are important. Therefore, you should give yourself time to explain your situation to an attorney who has experience in analyzing the essential information needed to be able to give you correct advice.
How much does it cost for a simple divorce where both parties agree?
It depends on the parties but it also depends on the attorneys representing the parties. Some attorneys simply make matters more complicated than they need to be. Also, the more issues that need to be resolved, the higher the fees are likely to be. Most firms in the Bay Area require the payment of a retainer which commonly begins at about $2,500 but can go as high as tens of thousands of dollars. Beyond that, there are almost no two attorneys that bill their time or pass on costs in a similar fashion. Some law offices are very inefficient which means the client will ultimately pay more for their divorce than others requiring similar work.
Item What can I expect going through a divorce?
Expect the unexpected and be surprised by nothing. If you are lucky and "married well" things may go smoothly but if you are like most, realize that divorce brings out the worst in people. Be forewarned.
What are the phases of a divorce and how long will it take?
First there are the initial filings with the court that in addition to the petition and response, may include temporary restraining orders, "kick-out" orders (requiring one spouse to move away from the marital residence), initial orders for custody, visitation and support. The next step is the discovery phase where facts and documents are shared and the basis for any claim or argument is formed. Last is the settlement or judgment phase where both sides should strive to settle the matter without litigation based on the way the court is anticipated to rule. Failing that, the matter should be set for hearing and finalized.
Marital status can be terminated in a minimum of six months from the date the opposing party is served with divorce papers. Other orders can be obtained at any time. Most divorces involving issues of child custody, support and property division usually take longer than six months.
Does California recognize "common law" marriage?
No but it does recognize any marriage that is considered valid in the state you were originally "married." What that means is if a state in which you were previously domiciled recognized "common law" marriages and you moved to California, you will be considered a married person in California.
Can I get my marriage annulled?
It depends on the facts. The law treats a marriage that is annulled as if the marriage never occurred. Annulment requires the showing of special facts and is rarely granted in lengthy marriages or those with children.
What's the difference between a legal separation and a divorce?
The work needed for each is essentially the same. You do not need to wait for six months to get the judgment, but you end up being still legally married. Sometimes a separation is a better choice if you want your marital status to continue after property is divided, where there are medical insurance coverage issues, and some people will get a legal separation as opposed to a divorce for religious reasons.
I just moved to California. Can I get a divorce here?
Jurisdictional requirements for filing a California divorce are you must be a resident of California for six months, and of the county in which you file for three months immediately preceding the filing of a divorce. However, if you need immediate protection there may be other ways such as initially filing for legal separation and converting it to a divorce after the jurisdictional requirements are met.
I just got served with divorce papers. What I do now? What if I do nothing?
If you do nothing, you could lose your legal rights to support or property. To protect yourself you must file responsive papers and appear in court. Agreements can sometimes be worked out whereby your response is delayed pending resolution of the matter by settlement or mediation.
What about custody of our children?
The children are likely to stay with the primary custodial parent, the parent who cared for the children most of the time during the marriage, although there are many factors that would influence that decision and may alter the result. The court's standard in making this decision is always "what's in the best interest of the children" although this is open to many different interpretations.
How much support can I expect to receive or pay?
California support is based upon a federally mandated formula. While there are some deductions, the most important items are the incomes of both parties and the time share percentage each parent has the children. The courts and most attorneys have a computer program that calculates support. As the creator of the first Windows-based program to calculate child and spousal support judgments in California I am quite familiar with how to maximize the program for my client's benefit.
Will a divorce impact on the continued operation of my business?
Although both sides in a divorce are hesitant to "kill the goose that lays the golden egg" for the sake of sport, there are times when the spouse in control of the business may be less than forthright when it comes to revealing what is going on in the business. That often raises suspicions on the other side causing them to place limits on the ability of the business to operate profitably and without court intervention. For this reason, it is always a good idea to talk with an attorney at the beginning of a divorce to discuss what strategy is best to insure the continued success of the business.
The Right Attorney
Choosing the Right Family Law Attorney
By Mark Ressa, Esq.
There are many good family law attorneys in the San Francisco Bay Area, but how do you go about finding and selecting the one that is right for you?
Thousands of Bay Area residents are faced with this question yearly. Many get referrals or recommendations from friends and acquaintances. Others look in the yellow pages, a few use referral services set up by local bar associations, and some search the web.
All of these methods are good places to start, but should that be the sole basis for choosing an attorney who represents you in your divorce? Most definitely not.
To find the attorney who is best suited for your particular needs and personality, it requires that you talk with the attorney, in person if possible.
First, you should ask the basic questions such as how long the attorney has been in practice, whether the attorney has handled cases similar to your particular situation. Ask if the attorney limits their practice to divorce law or whether they handle other types of cases.
After you are satisfied that the attorney knows the basics and has handled situations similar to yours, you need to get a sense of whether you can work with the attorney and whether you can trust they will represent your best interests. I have found that matching your personality to the attorney who is going to represent you is very important. Some attorneys approach a family law case with the attitude they know what's best for the client, they dictate rather than guide. For some this is a good match, for others this can be disastrous.
I have always felt the attorney-client relationship should be based on respect, more like a partnership than a parent-child relationship. In a divorce there are many decisions to be made and my approach is to give the client all the information they need, in laymen's terms, so they can make choices that are right for them. After all, who better to ultimately be in control of the divorce then the person most affected by the divorce, namely the client?
There are a couple of other areas you should explore when selecting an attorney. One of the biggest complaints clients have in going through a divorce is the cost. Cost is largely dictated by the business acumen of the attorney, whether they have streamlined their internal workflow processes (document management, calendaring, billing), whether they intelligently outsource component services (subpoena and document production services, attorney services, paralegals), and, most importantly, whether they embrace the efficiencies technology can bring to the practice of law. On this latter point, I have seen far too many attorneys eschew technology for no reason other than their own personal discomfort with it. That ultimately impacts on how much the client pays for their divorce and whether the client gets the best possible result.
Bottom line, trust your instincts. Don't go with an attorney just because someone else did, unless, of course, you feel comfortable with them. Find an attorney who matches your personality and will look after your financial investment in the divorce, as well as in the legal issues.
Educational Primer
From Initial Consultation to Temporary Orders — An Educational Primer
By Mark Ressa, Esq.
On January 19, 2008, I gave a seminar to other attorneys on behalf of the Section Education Institute of the State Bar. The class was taught with Sherry Peterson, Esq. of Dublin. The class was entitled "Family Law Nuts & Bots," an introductory class on how to proceed with a family law matter (i.e., divorce / legal separation) from the initial interview to obtaining temporary orders including restraining orders, property issues, child and spousal support, and attorney fees.
Although the class was intended for and attended by attorneys, much of what was taught has applicability to those who are self-represented or those who are or contemplate representation but want a better understanding of the divorce process.
For those people, you can download modified versions of the presentation materials.
This material is provided for educational purposes only. Providing this information does not establish an attorney / client relationship. None of the information contained in these documents should be acted upon without first consulting with an attorney. Should you have questions about the content of these documents, please arrange to discuss via a free consultation.
Inital Consultation to Temporary Orders (PDF)
Inital Consultation to Temporary Orders Slides (PDF)
To download documents: Right click on any of the links above and select "Save As" from your browser.
Divorce Alternatives
Most people think of a divorce as concluding before a dispassionate judge who determines the fate of the family's future. But it doesn't have to be that way. There are alternatives to litigation and it is important to be aware of and know the differences between these alternatives as a first step to any divorce.
Mediation is perhaps the best known alternative to litigating your divorce. Mediation is an approach that lets the parties maintain control of the outcome. The only people making decisions in mediation are those involved in the divorce, unlike an arbitration or litigation where a judge or an arbiter makes the final decision.
Mediation typically consists of several joint meetings between spouses (or parents, if you are not married) which last 3-4 hours each. During those meetings, you and your spouse discuss the issues which need to be resolved in your case. The mediator is there to facilitate the discussion, assist with communication, provide information and suggestions, and use their specialized training to assist the two of you to resolve your differences. At the conclusion, the mediator prepares an agreement which is fair to both parties, and if you have children, in their best interests as well.
Collaborative law is not unlike mediation except there is an attorney for both parties. Collaborative law is a way of practicing law whereby the attorneys for both of the parties in a family law dispute agree to assist them in resolving conflict using cooperative strategies rather than adversarial techniques and litigation. Early non-adversarial participation by the attorneys allows them to use attributes of good lawyering not greatly utilized in the usual adversarial proceedings, namely use of analysis and reasoning to solve problems, generation of options, and creation of a positive context for settlement.
The term "unbundling" is descriptive of any process in which something complex is broken down into smaller and simpler components. In the legal context, "unbundling" refers to the process of breaking down the multiple roles an attorney might play into smaller simpler groups of tasks.
Unbundling (also called discrete tasks representation) offers clients a middle ground between dispensing with lawyers altogether and signing on for the full service package. The client is in charge of determining which services are to be performed by the client, which services are to be performed by the lawyer, and the extent or depth to which the lawyer will perform the services.
Do it yourself obviously refers to when parties dispense with attorneys all together.
Each divorce alterative will be covered in some depth by experts in those fields. Initially we are fortunate to have Helen Peters, Esq., a former president of the Contra Costa County Bar Association Family Law Section, write about mediation. Ms. Peters has actively mediated cases since 1993. Other articles will follow.
Divorce Matrix
Although every family law matter is different and presents its own set of challenges, one cannot help but notice after representing and consulting with hundreds of individuals going through the divorce process there are "divorce types," patterns that are consistent from one divorce to the next. There are variations and hybrids of what I am about to describe, but categorizing divorces into “types” can help predict the likely cost range for the divorce; whether utilizing one attorney for most of the work is possible, whether mediation, collaborative law or alternative dispute resolution makes sense, and what the likelihood is the matter will require court appearances.
What follows is based primarily on how a client first presents and perceives his or her situation. Further discussion of each divorce “type” follows the chart.
* Low cost refers to fees totaling less than $3,000, medium refers to fees in the $3,000 - $7,500 range, medium-to-high refers to fees ranging from $7,500 to $15,000, and high refers to fees in excess of $15,000. Note, these are approximations; there are many variables determining how much the fees will total; therefore, actual fees may be higher or lower than estimated.