Divorce and the Holidays

Should I Wait Until After the Holidays to File for Divorce?

While it may feel like there is never a “good” time to file for divorce, with the holidays quickly approaching you may be wondering if it is best to wait until the holidays are over before filing for divorce. The short answer is - there is no right or wrong answer. Determining when to file for divorce is a personal preference and a decision to be made by you. When making this decision, especially during the holidays, there are some factors you should consider:

The status of you and your spouse’s relationship.

If you and your spouse are on good terms, and you have children, waiting until after the holidays to file for divorce may be beneficial for your family. Divorce can be stressful for everyone involved – children included. If you separate during the holidays and you have children, that could mean your children will be splitting the holidays with you and your spouse. Typically, holiday schedules either have each parent having the children on odd/even years for holidays or sharing the day equally. For example, you could decide to spend Thanksgiving with the children this year, and your spouse would spend Thanksgiving with the children the following year. Alternatively, this could mean you have the children for Thanksgiving morning and your spouse has the children for Thanksgiving evening. Depending on your children’s ages and needs, it may be best to ease them into the change and get them used to sharing their time with both parents before splitting up the holidays as well.

Keep in mind, children can be incredibly receptive to your feelings. If you do not feel you can put aside your differences during the holidays, or your children will be able to tell something is wrong between you and your spouse, it may be more harmful than productive to “fake it” through the holidays. While you know your children best, speaking with an attorney about your specific situation may be helpful to navigate whether waiting for the holidays to be over is the right decision for you and your family.

Think about your current stress level.

Coordinating travel, decorating the house, buying gifts, planning menus, the list goes on and on when it comes to the holidays! Divorce can be an emotional process, and adding all the stress that comes with the holidays could be a recipe for disaster. Waiting until after the holidays can allow you to focus on the divorce, your needs, and what is in the best interest of everyone involved. Again, if you and your spouse are amiable, it may be best to get through the holidays together and then start the divorce process without having any additional stressors involved.

Consider your safety.

If you and your spouse/partner are not on good terms, or you are in an abusive relationship, it can be dangerous to remain together for not only yourself but your children. Under the Domestic Violence Prevention Act, abuse is defined as any of the following: (1) intentionally or recklessly causing or attempting to cause bodily injury; (2) sexual assault; (3) placing a person in reasonable apprehension of imminent serious bodily injury to that person or to another; and/or (4) engaging in any behavior that has been or could be illegal such as molesting, attacking, striking, stalking, threatening, battering, harassing, destroying personal property, contacting the other by mail, telephone, or otherwise, disturbing the peace of the other party.

While it may seem better to get through the holidays without causing conflict, if your safety is at all a concern, you should seek help immediately and get out of the relationship. Adding stress and increased time together to an already abusive or unsafe situation could escalate any abuse and/or problems. If you are in an unsafe situation, speak with an attorney immediately about seeking a Domestic Violence Restraining Order.

Do you find you fight more during the holidays, or when you are spending increased time together?

Filing for divorce and starting the divorce process during the holidays could lead to a more contentious divorce. This could create arguments over certain things you may have otherwise not fought over at a less stressful time, which could prolong your divorce and make it more costly. For example, you and your spouse could agree on how to divide the furniture in your home; however, with tensions high during the holidays your spouse may want to keep everything in the home out of spite. If you feel you and your spouse are generally on better terms and can agree on more things after the holidays are over, waiting until January to file for divorce may be the best option.

When do you want to be legally divorced?

In California, the divorce process officially starts when a Petition is filed in court. After the Petition is served, there is a six-month waiting period for the earliest date you can be considered legally divorced. The courts could also be inundated at the beginning of the year, which means any court hearings could be set out farther in the future than normal. If you want the divorce to be finalized as soon as possible, and there are not substantial contested issues between you and your spouse, filing as soon as possible would be the best option for you.

Consider your relationship with your extended family.

Typically, during the holidays, we spend time with our extended family. If you have a good relationship with your extended family and tend to lean on them for support, it might be beneficial to have them close to you when you file for divorce. If your extended family tends to add to your stress, or might not agree with your decision, it may be best to wait until the holidays are over and you are done visiting with your extended family before filing for divorce.

Evaluate your finances.

There are some financial matters that need to be considered when filing for divorce. First and foremost, divorce can be costly. The more contested the matter is, the more court intervention may be necessary, and the more expensive the divorce will become. To commence the divorce process, as explained above, a Petition must be filed with the court. The initial filing fee for the Petition at the San Diego Superior Court is $435. There are other filing fees that may be associated with filing different documents with the Court. There are also attorney fees to consider, and the cost of experts (ex: real estate experts, child custody evaluators, etc.) if they are needed. You may have spent a lot of money preparing for the holidays and want to wait a while before starting the divorce process.

If you and your spouse are amicable and agree on all issues (i.e., division of assets and debts, child custody and visitation, and support), the divorce process can be relatively quick and resolved without court intervention. You and your spouse could choose to participate in mediation, which is where a neutral third party helps you and your spouse come to an agreement. While there are still costs associated with participating in mediation (ex: attorney’s fees, mediator fees, etc.), it can be less expensive than litigation.

Finally, as explained above, there is a six-month waiting period after you serve your Petition as a minimum time before getting divorced. You should consult with your Certified Tax Preparer (CPA) to see if the date you get divorced will affect your tax filing for the following year.

Date of separation.

In California, your date of separation is an important aspect of your divorce. Your date of separation is the day your relationship ended, which is when there is a complete and final breakdown of your marriage. To determine this date, the courts will typically look at when it was clear to both parties the relationship is over. This could be the date one party moves out, the date one party begins sleeping in a separate bedroom, or the date you and your spouse agree the marriage is over and you are going to get divorced. It is important to note after the date of separation, you and your spouse’s actions must be consistent with wanting to end your marriage. If you continue acting as a married couple, your date of separation could change.

The date of separation determines your length of marriage (from the date you were married until the day you separated). Your length of marriage is important, as it can impact several issues in your divorce, like the division of assets and debts and the payment of spousal support.

Assets and debts are generally divided as of the date of separation. As an example, if you and your spouse make big holiday purchases on your credit card prior to your date of separation, that debt would be considered a community debt, and both you and your spouse would be responsible for paying off the debt. As another example, if your spouse receives a holiday bonus after your date of separation, you may not be entitled to any of the bonus.

Your date of separation can also impact the payment of spousal support. In California, if you have been married for less than ten years, generally spousal support (if there is any to be paid) will last half the length of the marriage. If you are married for ten years or longer, you are considered to have a “long-term marriage”, and there is no assumption for what a reasonable amount of time spousal support should be paid. It should be noted this is the general practice, and the Court has the discretion to deem a marriage of less than ten years as “long-term” as well.

While it may seem like getting through the holidays together before telling your spouse you want to separate is a good idea, this could affect your date of separation, which in turn could affect various aspects of your divorce. It is important you speak to an attorney to determine your potential dates of separation, and how they can affect the different aspects of your case.

Should I Wait Until After the Holidays to Retain an Attorney?

Regardless of whether you want to file for divorce immediately or wait until the holidays are over, you should consult with an attorney as soon as possible. Consultations are confidential, and your spouse does not need to know you are speaking with an attorney if you are not ready to inform them you are thinking about divorce. You can discuss all the above factors with an attorney, who can help you make the best-informed decision regarding when to file for divorce.

While you do not necessarily need to retain an attorney immediately after you speak with them, being able to ask any questions you may have can ease your mind to get you through the holidays and mentally prepare you to file for divorce after the new year. An attorney can walk you through the divorce process, so you know what to expect once you decide to file for divorce. In the alternative, if you decide you want to begin the divorce process right away, having an attorney well-informed about you, your spouse, and your current situation will help them be able to begin right away. If you think you may be in danger, an attorney will be able to advise you if you should be filing for a Domestic Violence Restraining Order and can help you with that process.

Consulting with an attorney right away can also help prepare you for the financial aspects of your case. After hearing the details of your situation and what you would like to accomplish, an attorney can then give you an estimate of what you should expect relating to the cost. While these estimates are not always accurate, and a divorce can cost less or more than anticipated, if finances are a concern for you, it is best to have an idea of what that cost will look like.

Regardless, talking to an attorney sooner rather than later is the best practice when trying to navigate a divorce. Schedule a consultation with one of our San Diego divorce attorneys at Cage & Miles today by calling 858-258-5766.