Video #02 – Preliminary Considerations

Video Transcript

Welcome to

Christina  This is Christina.

Ed:  This is  Ed.  Today we are going to discuss different issues you should consider before you file for divorce.  The first issue is whether or not you should hire a lawyer.  Christina, what are some of the things people should take into consideration when it’s time to decide whether or not to hire a lawyer?

Christina: If you have a short-term marriage, no children, and little property, you probably do not need to hire a lawyer.  If you own substantial property, if you have minor children, or if your marriage lasted more than a few years so a significant spousal support right may be part of the mix, then you should seriously consider hiring a lawyer.  You are not saving money if you skip the lawyer, but end up not getting spousal support that you were entitled to, neglected to include in the property settlement agreement your one-half interest in your spouse’s retirement assets, or worse, lose custody of your children. Unfortunately, the reality is that most people just don’t have the money to pay a lawyer.  Finding the money to pay a lawyer a large retainer is simply not an option.  If you are thinking of doing your own divorce, you have to consider all the risks you run by getting divorced without a lawyer.

Ed:  Let’s assume you have decided to do your own divorce and you want to file for divorce in California, are there rules about how long you have to live in California before you are eligible to file for divorce?

Christina:  Yes.  In order to file for divorce in California, you or your spouse must have resided in California for at least six months immediately before the divorce petition is filed.  So, if you and your spouse moved to California 4 months ago and you want a divorce, you are going to have to continue to reside here for another 2 months before you file for divorce.  However, there is a way you can get around this residency requirement.  We get people that come to our office.  Their employer transferred them to California.  They have been here a few months and one or both parties want a divorce.  If you don’t meet the six-month residency requirement for a divorce filing, an option is to file a petition for a legal separation.  There is no residency requirement to file for a legal separation.  You and your spouse could be residents of California for only a few weeks and still be eligible to file a petition for a legal separation.   What you do is file the petition for a legal separation to get the process going and then, after you have satisfied the six-month residency requirement, you can easily amend your petition for a legal separation to a divorce petition.

Ed:  Sometimes, on TV or in the movies, someone will tell their spouse that they want a divorce, only to hear the spouse say they won’t consent to the divorce.  What about that – do you need your spouse’s consent to get a divorce?

Christina: You do not need your spouse’s consent to get a divorce.  If one party wants a divorce, the court will grant the divorce.  Your spouse cannot stop the court from dissolving the marriage.  If one spouse does not want the divorce and refuses to participate in the court proceedings, that will not stop the divorce.  The court will simply process the divorce as a default case.

Ed:  What if my spouse has filed a divorce petition against me and I don’t want the divorce, what can I do, if anything?

Christina:  You can drag your feet and slow the divorce process down. If you drag your feet and don’t cooperate, it takes a year or two or even longer to complete the divorce.  You can hope that if you drag your feet there will be a reconciliation, but, in the end, you can’t stop the court from granting a divorce.

Ed: Do I need grounds to file for divorce in California?  Do I need to hire an investigator to follow my spouse to prove he or she is having an affair or do I need to prove that my spouse has been abusive towards me in order to get a divorce?

Christina:  California is a “no-fault” divorce state.  What this means is, you don’t need to prove that your spouse did something wrong, such as being unfaithful or abusive, to get a divorce.  You do need grounds to get divorced, but this is a very simple matter.  There are two, and only two, grounds for getting a divorce or legal separation in California: 1) irreconcilable differences; or 2) permanent legal incapacity to make decisions.  This second ground was previously known as “insanity”.  Almost all divorces are based on the grounds of “irreconcilable differences”, which basically means you and your spouse are unable to get along and counseling won’t fix the problem.

Whenever television reports on a celebrity getting divorced, they always say that the grounds for the divorce are “irreconcilable differences”.  This isn’t really news because “irreconcilable differences” is the ground that everybody uses to get divorced.  Proving “irreconcilable differences” is extremely simple.  There is a pre-printed statement on one of the court forms that you sign when you submit your divorce judgment that reads, “There are irreconcilable differences that have led to the irremediable breakdown of the marriage and there is no possibility of saving the marriage through counseling or other means.”  That’s it.


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