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Top 5 Questions About Divorce - Part 2

Posted By Judy Williams || 19-Jan-2011

The third question that I get is about Community Property. People have heard generally that California is a Community Property state but they don’t really understand what that means. And basically what that means is that from the date of marriage till the date of separation anything that was earned or acquired is community property. Any debt that was incurred during that time is also community debt regardless of who incurred the debt, who signed on the charge card or even if both parties knew about it doesn’t matter. Anything that was charged during that period of time is a community debt and it is to be split fifty / fifty. Now in cooperative peaceful divorces you can decide to divide those assets and debts 60/40, 70/30 however you want as long as the two of you agree to it. However, if you go in front of a judge, the judge is going to divide it 50/50.

The fourth question I hear often is about Spousal Support. People want to know what’s it all about. Am I always going to have to pay it? Am I entitled to it? This is a tough question to answer because what the law says is that spousal support may be awarded in marriages of long duration which is described as 10 years or longer. But the problem is the law doesn’t give the court very clear instructions. The law says there are 14 factors that the court must consider in order to determine spousal support, but there is no direction given to the court as to how those factors are weighted. So some of those factors are the age of the parties, the length of the marriage, the health of the parties, the employability of the parties, whether one person is in great need of support and whether the other person is able to pay support. So the problem then becomes trying to predict what a court is going to think is important in your particular situation. So going to court on spousal support is a very, very unpredictable situation. You’re always better off to come to an agreement together looking at your assets and looking at your monthly expenses and trying to decide how can you both survive on the money that’s available.

The fifth question that I hear very, very often is, “What do you think is the best choice for me?” Should I choose litigation? Should I choose mediation or collaborative law? Of course, that’s not my decision, that’s yours. I can give you some guidelines and some ideas, but basically I think that litigation is the most destructive choice that you can make. However, if your spouse has decided that litigation is the way to go and has hired a litigator, in my opinion, you have not choice. You must hire a litigator. You must get the strongest litigator you can find because battles are tough in court. If however, the two of you have talked about the possibility of using mediation or using collaborative law, you’re going to save yourself emotional trauma, you’re going to save yourself money. You’re going to come out of it a saner, happier person. Mediation is the cheapest, the quickest, the least emotional of the choices. But, sometimes mediation is not the best choice. If someone is trying to hide assets, or if there’s a difference in power between the two parties, one person is really strong and controlling, the other person doesn’t like to rock the boat, is always going to go along. Mediation is not going to work very well. So collaborative would be the best choice for that situation. In collaborative you each have an attorney, those attorneys are trained in mediation and trained in settlement. They are going to sign a document with you that says we’re not going to court with you. We are committed to helping you solve these situations peacefully and we are going to help you so long as you solve the problems outside of court. So, as you see it is an important decision but it’s a decision you need to make having done your research, done your homework, talked with attorneys, talked with mediators, but most of all talked with your spouse.

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