The purpose of this document is to set forth in writing how a divorce proceeds procedurally, your substantive rights and obligations, the psychological impacts of a divorce, and other important matters. Some of these we discussed in our prior conferences. Much of the information may be difficult at best to understand in one session. Accordingly, I have attempted to summarize our discussions as more specifically set forth below.

There are generally four steps involved in a divorce:

The First Step

The First step in preparing for a divorce is the processing of the paperwork. This generally includes preparation of the following pleadings.

(1) Summons

(2) Petition

(3) Order to Show Cause pleadings for the purpose of requesting relief at the first hearing

(4) Temporary Restraining Orders

(5) Declarations

(6) Income and Expense Declaration

(7) Response, if appropriate

(8) Responsive declaration to Order to Show Cause, if appropriate

Following our first meeting, we generally prepare all necessary paperwork in order to either initiate the processing of the divorce or to respond to the Petition for Dissolution. The pleadings are then generally served upon the other party. The purpose of the service "starts the clock ticking". Once the pleadings are served upon the other party, the final Judgment of Dissolution can be granted, at the earliest, six (6) months from the date of service. The purpose of the 6-month waiting period is to encourage reconciliation between the spouses, and if in fact a reconciliation occurs during this period, kindly contact our offices and we will see that all paperwork is stopped. Additionally, if you would like a referral for counseling to reconcile the marriage, we will be happy to refer you to qualified counselors. Although we limit our practice to family law, we do not encourage divorces.

The Second Step

After the pleadings have been drafted and served, the next step is the order to show cause, the initial hearing. Generally, the following issues are addressed:

(1) Spousal Support

(2) Child Support

(3) Child Custody and Visitation

(4) Restraining Orders

(5) Use of the Residence

(6) Joinder of any pension plans

(7) Request for attorney's fees and costs, and

(8) Any other miscellaneous relief which may be necessary in order to maintain the stability for the benefit of the parties and children

The first hearing will usually occur within twenty-five (25) days of the date the pleadings are initially filed with the court, absent any continuances. At this hearing, the attorneys will argue the case, and the court generally will not take testimony at this time. If custody or visitation is an issue, the parties will have attended Family Court Services for mediation. The recommendation of the counselor will be submitted to the court for review.

The purpose of the hearing is to maintain the status quo, to ensure the children and the supported spouse have sufficient financial resources to maintain the necessities of life, and to balance between households a common standard of living.

The Third Step

The third step involved in a dissolution of marriage is generally the discovery phase. This often includes the taking of depositions. A deposition is generally conducted in our conference room or the offices of the opposing counsel. A court reporter is present. At this time, I will be asking questions of your spouse for the following purposes:

(1) To secure information

(2) To solidify testimony so it may not be changed at future hearings or trial

(3) To obtain necessary documentation to adequately present your case

(4) For the purpose of evaluating witnesses

After the deposition, many times subpoenas are sent out to verify the information obtained at the deposition.

By the time the first three steps are completed, the emotional involvement of the parties has generally subsided to the level where many cases are in fact resolved by settlement. We will then formulate a settlement offer for the purpose of resolving the case in total. If the settlement offer is accepted, or amendments thereto are agreeable to all parties, a settlement agreement will be prepared. No offer of settlement will be made without your knowledge. The settlement agreement essentially indicates which assets will be allocated to the Wife, and which assets will be allocated to the Husband. It will address the issues of custody and visitation, together with support and all other matters. The settlement agreement is filed with the San Diego Superior Court in the form of a binding Court Order.

The Fourth Step

If the matter cannot be resolved by stipulation the matter will proceed to the fourth step, which is trial. If the trial is expected to be shorter than three hours, it will be placed on what is called the "short-cause" calendar. The San Diego Superior Court hears this short-cause calendar on Fridays. You are generally assigned a date for trial within four (4) months from the date on which the trial is requested.

If, however, the case will take longer than three hours, it is set on the "long-cause" calendar. Under this procedure, the San Diego Superior Court will assign you a mandatory settlement conference date approximately six (6) to eight (8) months from the date on which the trial is originally requested. At this mandatory settlement conference, we will be required to meet with a judge or one or two practicing attorneys who limit their practice to family law. These attorneys or the judge will review our settlement conference briefs which we will have prepared in advance, and will review the position of both sides with respect to all issues. They will give a recommendation for the purpose of helping the parties resolve the case. If not resolved, the case will proceed to trial, usually within forty-five (45) days of the settlement conference.

UNCONTESTED DIVORCE

The above-described procedures outline the general steps utilized in a contested divorce proceeding. If in fact you feel this matter is able to be settled from the very beginning, our offices encourage sending out a settlement letter along with the initial pleadings. This provides the other party with an opportunity of addressing the issues in a constructive approach aimed at expeditious settlement. This has the obvious advantage of saving attorney's fees, costs and emotional distress to both parties. If you feel you have inadequate information with which to make an offer of settlement, it is wise to wait until after the discovery procedure before offering settlement.

SUBSTANTIVE RIGHTS AND LIABILITIES IN A DIVORCE

Those assets acquired by you prior to your marriage are usually confirmed to you as your sole and separate property, free and clear of any interest of your spouse. So also are those assets you acquire after the date of separation.

Those assets accumulated by you during the course of the marriage are generally characterized as community property. Community property assets are normally divided equally between the Husband and the Wife. There are certain exceptions as follows:

(1) Gifts

(2) Inheritances

(3) Personal injury awards

There are considerable exceptions and refinements to the general parameters set forth above which we will be reviewing in this case for the purpose of characterizing and dividing assets.

RESTRAINING ORDERS

Once the Summons and Petition for Dissolution of Marriage have been filed with the San Diego Superior Court the following standard restraining orders which are set forth on the reverse side of the Summons will be in full force and effect. These mutual restraining orders are issued automatically and apply in every case. The restraining orders restrain the parties from:

(1) Removing the minor child or children of the parties, if any, from the state without the prior written consent of the other party or an order of the court

(2) Cashing, borrowing against, canceling, transferring, disposing of, orchanging the beneficiaries of any insurance or other coverage including life, health, automobile, and disability held for the benefit of the parties and their minor child or children

(3) Transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life

You must notify each other of any proposed extraordinary expenditures at least five business days prior to incurring this extraordinary expenditures and account to the court for all extraordinary expenditures made after these restraining orders are effective. However, nothing in the restraining orders shall preclude you from using community property to pay reasonable attorney fees in order to retain legal counsel in the action.

If you have any questions with regard to the meaning of these restraining orders, do not hesitate to contact me.

PSYCHOLOGICAL ASPECTS OF A DIVORCE

Elizabeth Kubler Ross has authored a treatise upon the stages of death and dying. These stages appear to also be felt by most people during the process of a divorce. These stages occur as follows:

(1) First Stage: Denial and Isolation

(2) Second Stage: Anger

(3) Third Stage: Bargaining

(4) Fourth Stage: Depression

(5) Fifth Stage: Acceptance

Many experts believe spouses in dissolution of marriage proceedings go through the same stages. If true, this process would have a direct effect on the ability of the spouses to communicate with each other. Such communication is required to minimize litigation which is costly financially and emotionally.

For example, a spouse in the second stage of anger communicates with a spouse in the fifth stage of acceptance about as well as if the former understood only English and the latter only Spanish. Consequently, often it takes time for one or both spouses to work through the emotional turmoil of a divorce before they get into a compatible stage where clear communication resides. Accordingly, patience and good judgment is required as to when it is appropriate to embark on settlement discussions.

ESTATE PLANNING

It is critical that a party to a divorce proceeding reconsider his or her estate planning. This would include, by way of illustration, preparing a new will or revoking any power of attorney or trust agreement.

You will also want to consider severing any property held in joint tenancy between you and your spouse. The feature of joint tenancy is right of survivorship, which means if one spouse dies, the other spouse by operation of law succeeds to total ownership of the property even if the decedent had a Will to the contrary. For example, if you die, your spouse would become full owner of all property held in joint tenancy, regardless of the terms of your Will. Of course, the same is true if your spouse dies.

EPSTEIN CREDITS

There are many ways in which you can help. One such way is to keep your files well organized to support "Epstein Credits" you may be entitled to. Debts that exist as of the date of separation ("DOS") are generally community debts regardless of which party incurred them. On the other hand, income earned by either party after the DOS is that person's separate property. To the extent income earned after the DOS (therefore separate income) is utilized to pay community debts, then with certain exceptions, you would be entitled to reimbursement at the time of the division of community property. This reimbursement is defined as an "Epstein Credit". It is helpful to think of it as separate property being used to pay community debts.

In order to prove these credits, you need to keep copies of the bills showing the amount of the indebtedness close to the date of separation, with monthly statements thereafter, and the canceled checks that are used to make payments following the DOS. You would then be in a position to fill in the "Epstein" Chart.

An additional "accounting" problem arises when charges on a joint account are made after the date of separation. The problem is the allocation of the interest assessed against the separate charges as distinguished from the community charges is very difficult if not impossible to determine. The same problem arises when charges and subsequent payments after the date of separation occur. Frequently, the Judge in your matter will arbitrarily allocate the interest between the community and separate debt. So as to void this problem, it is best to make charges after the date of separation on accounts which have no community obligations outstanding.

JOINT CREDIT CARDS (community property vs. contract law)

Consistent with the foregoing, debt incurred after the date of separation is the separate obligation of the incurring spouse under community property law. A different wrinkle under contract law is added when such a debt is incurred on a joint credit card.

Under such circumstances, both spouses are jointly and severally liable of the obligation under the contract they signed at the time the joint credit card was issued. This means while a debt incurred against a joint credit card by one of the spouses is the separate obligation of that spouse under community property law, under contract law if the spouse incurring the debt does not pay it. In short, consider very carefully whether you want to cancel joint credit cards and credit lines.

CONCLUSION

Our basic philosophy with respect to family law matters is to attempt to resolve all matters in a fair, reasonable and well-informed manner for the benefit of our clients. We have found our clients are most satisfied when they can resolve the issues by means of settlement, thereby taking control of their own destiny, rather than laying their lives before a court which has limited time to consider all the important aspects of one's life.