Pre-Divorce Considerations: Are My Rights Protected?

When considering divorce, it’s common to be apprehensive about talking to a divorce attorney. Many people will worry that the conversation will spell the end of their marriage, while others may be anxious about their spouse finding out. Still, these apprehensions shouldn’t dissuade you from obtaining the knowledge you need to move forward with confidence—even if you’re not quite sure that divorce is the right choice at this time. If you’re not quite ready to sit down with a divorce attorney to discuss your case but still want to ensure you are prepared, this pre-divorce checklist is for you. Covering essential information about the divorce process as well as tips to help you prepare, this checklist puts you one step closer to realizing your desired outcome, whatever that may be.

Important Things to Know Before Starting the Divorce Process

The Date Of Separation Is Important For Property Division

Anyone considering divorce should understand the impact the “date of separation” will have on a future divorce case. The “date of separation” is the date that marks the end of the marital economic community and occurs when at least one spouse has the intent to end the marriage and takes some action consistent with that intent.

During marriage, all property acquired by either party (except via gift, inheritance, or bequest) is community property and divided equally upon divorce. But after the date of separation, all property and earnings are separate. Generally, the earning spouse will pursue the earliest date of separation possible, and the non-earning spouse will request a later one. The court will examine the conduct of the parties and any evidence presented to determine when the date of separation occurred. Note that any reconciliation after an initial separation with negate that first date of separation and a latter date of separation will be used by the court.

The Length Of The Marriage Can Affect Spousal Support

The date of separation will also mark the end of the marriage for purposes of determining the length of the marriage, which is important for determining spousal support. In California, a short-term marriage is less than 10 years, while a marriage lasting 10 or more years is considered long-term. Generally, a spousal support recipient in a short-term marriage should expect to receive spousal support for one-half of the length of the marriage. A support recipient in a long-term marriage could receive support for a much longer period or even a period exceeding the length of the marriage.

Automatic Temporary Restraining Orders

Financial Automatic Temporary Restraining Orders are put into place at the start of all divorce cases according to California Family Code section 2040. This means that both parties must maintain the financial status quo and are not allowed to make any changes like transferring assets, closing accounts, terminating health insurance, changing life insurance beneficiaries, etc.

This order applies to the petitioner as soon as they sign the divorce petition, and to the Respondent as soon as they receive the petition. There can also be penalties for violating these orders “in anticipation of divorce.” An exception to the financial restraining orders permits parties to access funds to retain an attorney in the divorce action and to pay for ordinary living expenses as usual.

Pre-Divorce Checklist

• Start gathering financial records: Often one of the lengthiest parts of the divorce process is the exchange of financial information. Both parties are required to provide all material facts and information regarding assets, debts, income, and expenses at the onset of the case. Whether you’re typically involved in the family finances or not, you may want to consider gathering and account statements for everything you can access. Making a list of all current assets and debts is a good place to start! You should also make of list of which assets and debts you cannot access so your attorney is aware.
• Keep track of time spent with children: If you end up in court requesting custody orders, the judge will want to preserve the status quo as much as possible for your kids, and craft a parenting schedule that mimics what the children are used to. To avoid a game of “he said, she said” when it comes to proving what that schedule is, it’s a good idea to start maintaining a running list or ongoing calendar recording each parent’s level of involvement and time spent with the children. The court will need to assess who the primary caretaker is, or how involved each parent is with appointments, play dates, school functions or how often they traveled for work, etc. It’s also helpful if the dates and times of each calendar entry are recorded automatically using an app or software program, so the court can assess given the likelihood that the calendar data is accurate.
• Back up all electronically stored information: Save text message exchanges, emails, and social media posts by exporting them to PDFs, and have a separate backup drive of important documents and communications with your spouse. This will protect you from any questions about the credibility of your account regarding issues like family finances, care of the children, incidents of domestic violence, and more. You might also consider changing your personal passwords for social media and email accounts, or setting up a new confidential email account to communicate with your attorneys. Make sure your existing accounts are no longer linked to a “cloud” database or other online storage that your spouse can access.
• Beware of social media and other written communication: It’s very important to think twice when posting online. Much of the evidence presented in family law trials consists of text messages, emails, social media posts, and other communications between the parties. As a rule of thumb, before hitting that “post” button, imagine your draft post as an exhibit in court being read by your judge. The same concept applies to text messages, e-mails, and other written communication with your spouse.
• Keep notes and documents: When spouses decide to eventually consult with an attorney, it’s important to have notes with significant dates, times, and conversations. The date of separation is a key issue in many cases, so keeping logs of conversations regarding separation can help litigants remember key facts when they are needed. Make copies of important documents to assist with proving separate property claims, as well as all documentation for community property such as tax returns, bank statements, retirement account statements, and credit card account statements.
• Create a safety plan if domestic violence is a concern: If there is a history of domestic violence in the marriage, safety is a major concern in the divorce. Statistically, one of the most dangerous times for a victim of domestic violence is when the victim decides to leave the abuser—so creating a safety plan is key. Many San Diego agencies are available to aid victims of domestic violence. Note: If you feel you are in immediate danger, please call 911.
• Research divorce process options: The divorce process can take many forms, so start thinking about your options early. When many parties begin to think about divorce, they hope that the process can be as smooth as possible, whether through mediation or collaborative divorce. Divorce does not need to be a litigious process but it’s important to consult with an attorney to be sure the case is handled appropriately, and all your rights are protected. If spouses agree on most terms, an attorney can prepare all the paperwork without the parties even participating in the mediation or collaborative process.