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THE PURPOSE-DRIVEN DIVORCE
Kelly Chang Rickert, Attorney at Law
California State Bar Certified Family Law Specialist
Law Offices of Kelly Chang, A Professional Law Corporation
Copyright 2005-2012
We know family matters.
"I consider myself among the blessed, for I truly love my work.  This is
because I know my purpose, and I was gifted with abilities to achieve that
purpose.  Nothing matters more than family.  When issues arise in this
area, they inflict the greatest pain.  I try hard to understand your needs; I
know the law; and I do my best to achieve the best results for you and your
family.  This is my  purpose as your lawyer.  I am proud of my work, and I
strive to never take my clients' trust for granted."  
                                             - Kelly Chang Rickert

MISSION: DIVORCE

When you hire a divorce lawyer, you are hiring him/her to help you get a
divorce.  What does that mean?  Very simply put, at the end of this lengthy
process, is a Judgment of Dissolution.  

Your divorce is not final unless Judgment is entered.  Sounds silly, but some
people believe they are divorced even without that piece of paper.  Some have
come to my office after unsuccessful jaunts with lawyers who let the case drag
on for years without obtaining judgment.  Below are steps to Judgment, and the
purpose of each step.  

STEP ONE:        FILING OF PETITION/RESPONSE
Purpose:            To get the process started.  

California is a “no-fault” state.  This means that either spouse may file a
divorce without proving someone is at fault (i.e. cheating, physical violence,
etc.).  Thus, in order to start a divorce, one party simply files a Petition for
Dissolution.  Currently, this petition costs $395 to file.  

After the petition is filed, the party who filed it must serve the other side with
the papers in order to notify them that a divorce proceeding has been filed.  I
highly recommend that prior to serving the divorce papers, you notify the other
side.  We’ve all seen the video footage of the crestfallen face of Kevin
Federline, who allegedly discovered via text message that Britney filed for
divorce.  Divorce is difficult enough.  If there is any room for courtesy, apply it.

After the other side receives the papers, they have thirty days to respond to the
Petition by filing a Response.  The Response currently costs $320 to file.  If they
do not file a response within thirty days, the person who filed the Petition
(called the Petitioner), may request a default judgment.  In this case, they will
generally receive everything they ask for in their papers. (with some exceptions
which you must discuss with an attorney).

In California, Judgment is entered no earlier than six months after the date the
responding party (called the Respondent) is served with papers.  Why six
months?  This is the waiting period created by the Legislature to encourage
reconciliation.  It is also a period where you can obtain all the financial
information you need before entering into an agreement.  Obviously, if you can
get divorced as quickly as you can get married, our society would have greater
problems than it already does.

After the initial Petition is filed, automatic temporary restraining orders
(ATRO’s) kick in.  They apply to both the PETITIONER and the RESPONDENT.  
Some examples of ATRO’s are the following:  1) cannot remove minor children
out of state; 2) cannot take benefited party off of insurance; 3) cannot transfer,
convey, encumber, or conceal property; 4) cannot create probate transfer
without notice.  The purpose of ATRO’s, amongst other things, is to prevent
angry parties from absconding with the children out of malice, and to waste
away all community assets in order to spite the other side.

Filing and serving divorce papers is the first step.  It is by far not the last step.  
To get a Judgment, you must keep going.

STEP TWO:        GETTING TEMPORARY ORDERS VIA OSC
Purpose:             To have a sense of peace and order by having temporary     
                orders in writing pending the Judgment.

Because it takes six months (or longer) to obtain a Judgment, in the interim,
some logistics must be sorted out.  For example: Who stays in the house?  Who
pays for the mortgage?  If you are the supported spouse, will you get your living
expenses paid for?  What about spousal support?  If you have children, who has
custodial rights?  What about child support?

Because your questions need immediate answers, it is wise to get an immediate
court date in order to resolve these issues.  You get a court date by filing an
OSC.  This stands for “Order to Show Cause”, and can resolve issues of Child
Custody/Visitation, Child Support, Spousal Support, Attorneys’ Fees, etc.,
pending the issuance of a Judgment.  Currently, this costs $40 to file.

Filing an OSC does not mean you are trigger-happy, and immediately racing to
court to win.  Remember: At all stages of divorce, you always have the option to
reach an agreement with the other side.  You are always in control of whether
you want to go to court or not.  Usually, if you reach an agreement, you can file
it the Court.  Usually, the Judge will agree with you, and even commend you for
settling.  There are certain exceptions, of course.  For example, in California,
you can never totally take away the Court’s power to rule on child support.   

It is always a good idea to file an OSC when issues of custody/visitation and
support arise.  Again, it takes six months or longer to obtain a Judgment.  In
the meantime, both parties should desire temporary orders for peace of mind.

Of course, if both parties have been separated for a long period of time, and are
self-supporting, and have no children, there may not be any issues to be
resolved pending the Judgment.  In this case, I would opt to forgo the OSC.  

Although the orders obtained through use of an OSC are called “pendent lite”
(Latin for “while the case is pending”) temporary orders, in some cases, they
may end up being the permanent orders incorporated into the Judgment.  This
is especially true in custody cases, because “status quo” is favored, and the
longer a “temporary order” stays in place, the firmer a “status quo”
arrangement becomes.  It is essential to understand the important role of an
OSC.

STEP THREE: DOMESTIC VIOLENCE RESTRAINING ORDERS
Purpose:        In a high-conflict divorce and custody case, to protect the parties
and children involved.

Unfortunately, sometimes, after a divorce or custody case is filed, someone gets
angry and becomes physically or emotionally violent.  This is particularly
troublesome if there are minor children involved.  In order to protect yourself,
it may be vital to obtain a temporary restraining order against the other side.

Temporary restraining orders (usually lasting no more than 20 days) may be
granted without a full evidentiary hearing (based on declaration alone).  Since
they are granted based on one party’s declaration, they are set for hearing,
where the Judge will take evidence from both sides before entering an Order
for a longer restraining order. (lasting up to five years).

In California, there is a rebuttable presumption that an award of custody to a
perpetrator of domestic violence is detrimental to the best interests of the
child.  Because of the weight this carries, restraining orders are often abused in
custody cases.  It is essential to immediately consult with a competent family
attorney if you are experiencing domestic violence in your case.

STEP FOUR:  DISCLOSURES OF FINANCES
Purpose:        To Reach a Fair Settlement, and Ensure the Settlement Is Not
Later Overturned Due to Lack of Disclosure.  

Frequently in relationships, one person knows more about their finances than
the other.  California is a community property state.  This means, all property
acquired after the date of marriage, before the date of separation, except for
gift and inheritance, is community property.  Community property assumes the
notion that even in relationships where only one spouse works, the other spouse
is contributing to the marriage by staying at home and providing domestic
duties.

Sometimes, the spouse that doesn’t work stays at home and does nothing.  In a
community property state, that doesn’t matter.  The law assumes they are
contributing something.  Thus, in a divorce, both parties are entitled to half of
what was earned during the marriage.

Because of the community property laws, the law mandates that both parties
must make extensive financial disclosures.  Generally, they will come in two
parts – the Preliminary Declarations of Disclosures (served at the outset); and
the Final Declarations of Disclosures (prior to settlement or trial).  Because one
party may know more than the other, these mandatory disclosures are the
court’s way of preventing foul play.  You must exchange disclosures.  You
cannot waive them.

If you are the supporting spouse, you may wonder: What happens if I don’t
disclose my assets?  He or she does not know of my offshore bank account in
the British Virgin Islands.  

There are several consequences to not disclosing.  The Judge may overturn your
agreement.  The Judge may punish you by awarding the non-disclosed asset to
the other side.  In a famous 1996 case against non-disclosure, Marriage of
Rossi, Denise Rossi won $1.3 million in the California State Lottery.  11 days
later, she filed for divorce, from her 25-year marriage, never telling her
husband.  Judgment was entered.  2 years later, her ex-husband discovered that
his ex-wife had won the lottery.  (They always find out.)  He filed a Motion and
the judge gave the ENTIRE $1.3 million dollar lottery winnings to the husband,
since the wife had intentionally not disclosed her winnings in the divorce
proceedings.

Always disclose.

STEP FIVE:    REACHING AN AGREEMENT OR PREPARING FOR TRIAL
Purpose:        To Get the Judgment Finalizing your Divorce Case

After disclosures have been completed, it is time to start negotiating
settlement.  For example, who will keep the house?  How much support will you
pay?  And for how long?  Who will have the children for Christmas or
Hannukah this year?

Because both of you have completed full and thorough disclosures, you are both
now in a good position to discuss settlement.  It is a good idea at this time to
simultaneous request the court for a trial date.  I do this for my clients because
with a looming trial date, both parties are more eager to resolve the case.  In
addition, if settlement discussions fall apart, there is already a trial date set in
the future, so as not to delay the dissolution.  Other attorneys prefer not to do
this, so they will have more time to prepare for the trial.   

If you reach an agreement, you can file a Stipulated Judgment, or a Marital
Settlement Agreement (MSA).  The difference between both is that in addition
to being attached to the Judgment, the MSA is also a contract, and if either
party breaches it, you have an additional remedy – to sue for breach of
contract.  

Once the Judgment is stamped by the Judge, you should receive a Notice of
Entry of Judgment, which gives you a date of divorce.  Only when this piece of
paper has been filed is your divorce final.  Congratulations!

Of course, in divorce cases, nothing is final.  You may always file for
Modification, but there are legal standards you must meet before the Judge will
grant you one.  Please consult with a competent family attorney.

Kelly Chang Rickert founded the Law Offices of Kelly Chang, A Professional Law
Corporation. Her firm specializes in Divorce and Family Law, and handles all areas
of Divorce, Annulment, Spousal Support, Child Support; Modification, Child
Custody and Visitation, Prenuptial and Postnuptial Agreements, Adoptions, Property
Division; Restraining Orders; and Family Law Mediation.  She practices in Los
Angeles and San Francisco and is happily married to the love of her life.


Copyright 2006 - 2011.  Law Offices of Kelly Chang.  All Rights Reserved.
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A Professional Law Corporation
**California State Bar Certified Family Law Specialist