My Wife Wants a Divorce. What are My Rights?

my wife wants a divorce

By Patricia Van Haren, Divorce Attorney, Founder, The Law Office of Patricia C. Van Haren

 My wife wants a divorce, what are my rights? That is a question I hear often. Hearing your wife wants a divorce can be devastating, but it is important to remember that you have rights. You may be able to keep your home, receive alimony payments and more, but it is best to speak with an attorney to be certain. Divorce laws vary from state to state, so it is important to seek legal counsel in the state where you reside or where your divorce case has been filed in order to understand exactly what you are entitled to.

Divorce isn’t easy, but with the right information and support, it can be a little bit less daunting. In this article, I will share some information about your rights during a divorce, as well as tips on how to protect yourself emotionally and financially. I will also address the different types of divorces and what each one means for you, as well as what to do if you are served with divorce papers. Finally, I will explain alimony payments and why they might be important to you during this difficult time.

 

 What to do if your wife wants a divorce

 

If your wife wants a divorce, or if you are the one considering a divorce, it is important to speak with an attorney to understand your legal options. Depending on your state, In California, all Divorces will be considered to be a no-fault divorce, in which case you will not need to provide a reason for the split. However, it is important to note that No Fault does not mean that issues in the Divorce can be contested and litigated. It only takes one person to decide that they no longer wish to be married in California for the parties to obtain a Divorce.  The most common disputes in Contested Cases are Date of Separation, Support, Property Division and Child Custody.

California is a Community Property State which means that each Spouse has an undivided one-half interest in all property that was obtained during the marriage. In a Divorce, one Spouse may claim a Separate Property Interest in something if it was acquired prior to the date of marriage, after the date of separation or through an inheritance. The person who asserts the Separate Property Interest must prove the source of the funds that were used to obtain the asset.  It is important to note that even if there are no joint bank accounts or debts, the income earned during the marriage is considered to be community property, therefore even accounts in one spouse’s name would be considered to be community property accounts.

Regardless of the type of divorce you choose to pursue, it is important to understand that the process can be complicated and emotional. You will need to gather documents such as bank statements, tax returns, and mortgage information. You will likely have to go through the Courts unless you choose and alternative to litigation such as mediation or the collaborative process to determine support, child custody and property division.  Prior to filing it may be best to speak to your Spouse and see what issues you can agree on and see if they are open to considering alternatives to Divorce Litigation. A contested case can take several years and can cost hundreds of thousands of dollars and most cases end up settling prior to trial.

 

The different types of divorces and what they mean for you

 

When it comes to getting divorced, there are a few different methods. These include: an uncontested divorce, litigation, mediation, and collaborative divorce.

An uncontested divorce is the simplest and easiest type to obtain. In an uncontested divorce, both parties agree that the marriage is irretrievably broken and that they cannot continue to live together. The parties work together and agree on the terms for Support, Property Division and Child Custody or shared parenting time.  In an uncontested divorce, the hardest part of the process is making sure that you fill out the correct paperwork and have it submitted properly to the Court.

In California, a Self-represented party is required to know the same laws and rules as an attorney representing them.  Additionally, it is important to note that some things CANNOT be changed once a Judgment is final such as waivers of Spousal Support or Property Division.  Therefore, even when having an uncontested divorce it is important to understand what you are signing and what your rights are so that you can knowingly and willingly sign them away if that is what you choose to do.

Contested Divorces or Litigated Divorces are more complicated, as one party must allege and provide evidence that the other spouse has been abusive, has hidden or disposed of assets, asserted an incorrect date of separation or any other issues in the case such as child custody disputes or disputes over spousal support that they do not agree to.. Contested or litigated divorces are more contentious and often result in a longer and more expensive legal battle. In many of these cases a couple may remain in litigation long after the case is final particularly when there is a dispute as to child custody or spousal and child support.

Collaborative divorce is an out of Court option that is growing in popularity. In this type of divorce, both parties agree to work together with the help of attorneys to come to a settlement outside of court. If an agreement cannot be reached, the attorneys will no longer represent them and they will seek litigation counsel should the case will proceed to court. With the collaborative divorce model, the parties can choose to build their own divorce team which may include a joint divorce coach or individual divorce coaches, a parenting specialist or a financial neutral or any combination of the team members depending on the needs of the family. Rather than working against each other the attorneys work together and work to preserve the communication between the spouses to benefit the children.

 

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Mediation is another option for couples who want to work together and avoid a long, drawn-out court battle. In mediation, a neutral third party, usually an attorney, helps the couple come to an agreement on various issues such as child custody, property division, and support. The mediator will assist the couple with the legal documentation required to finalize their divorce and they will ensure that each person understands the Judgment prior to the time that they sign it.  In some mediations, the couple may choose to have a Financial Neutral involved to assist them in the property division or support aspects of the case or they may choose to have a coach involved to assist them with communication with their spouse. This incorporates the team approach used in the Collaborative Divorce Process but involves a neutral mediator rather than attorneys.

 

 How to get started with the divorce process

 

Going through a divorce may feel overwhelming and you might not know  where to start. The process can feel stressful and scary, but there are some steps that can be taken to make it more manageable. First, it is important to understand that California is a no-fault state, which means that fault does not need to be proven in order to get a divorce. However, there are still some decisions that need to be made regarding property division and child custody.

If you are the high earning spouse, you should also be prepared to provide financial support for your spouse during the divorce process. Once these decisions have been made, the next step is to file the necessary paperwork with the court. In California, a Petition for Divorce is filed and then served on the other party to start the process.  There is a mandatory minimum waiting period of six months and one day before your Divorce can be final however the average litigated divorce can take several years to be finalized.  If you are in a litigated case, it is important to attend all scheduled court appearances and follow any orders issued by the court. By taking these steps, men can help to make the divorce process as smooth and stress-free as possible.

In a litigated case, there may be hearings set at the beginning of the case to determine child custody and visitation as well as issues of Spousal and child support while the case is pending.  In the hearings you may come to agreements of the court will make orders as to how community expenses will be handled during the divorce process.

If you are using Mediation or Collaborative Divorce, then you will discuss which Spouse will file for the Divorce and set forth timelines in order to move forward with the Divorce Process. When the parties are not in litigation, service can be done through email or mail with the party receiving the documents signing an acknowledgement that they have been received. After the Divorce has been served the other party will file a Response.

In California, both parties are required to exchange Financial Disclosures which list all assets that either of the parties have and also list all debts that the parties have.  Each party will be required to disclose their respective incomes and list any expenses that they are responsible for. Once the disclosures have been exchanged then the parties can start to enter into negotiations for settlement.

 

What to do if your wife wants a divorce and you are served with divorce papers

 

If you have been served with divorce papers, it is important to take action immediately. You will likely have a limited amount of time to respond, and if you do not respond, you may lose certain rights or be held in default.  In California, the time to respond is 30 days after the service of the Petition for Dissolution. Once you have been served, you should speak with an attorney to understand your legal options and next steps. It is important to note that just because you have served with Divorce Papers does not mean you can not still choose to participate in the Collaborative Process or a Mediation. Plan carefully how you want to have those conversations with your spouse.

Many people believe that they can just ignore the process and it will go away. As California is a no fault state, the Courts will allow a spouse to get divorced even if their spouse does not participate in the case. They will make orders based on the statements of your spouse as to Child Custody, Support, and Property Division and will continue to proceed even if you do not participate in the case.

Review the Petition with an attorney if you do not understand the requests that are being made by your Spouse.  It is important to note that there are Automatic Temporary Restraining Orders included when filing for Divorce. Once you are served or you file if you are the Petitioner, neither spouse may leave the state with the children, they may not cancel any insurance and they are not able to dispose of property or make large purchases.  Each spouse may continue to spend money on items that are necessary for living. It is important to note that if one of the spouses runs up a lot of credit cards during the period of separation, they will be responsible for those debts and it will be deducted from any division of property.

How Spousal payments work and why you might need them

Spousal payments are often a key issue in divorce proceedings, especially for women or men who have stayed home to raise children or who have otherwise been financially dependent on their spouse. Spousal Support is typically paid by the higher-earning spouse to the lower-earning spouse and is intended to help the recipient maintain their standard of living after the divorce.

When two people get divorced, they must also become two separate households. This is where spousal support, known as alimony in some states, comes in. Spousal Support refers to the  money paid by the higher-earning spouse to the lower-earning spouse in order to help them maintain their standard of living during and after divorce.

When coming to initial agreements on Spousal Support, the goal is to maintain the status quo until such a time that the property has been divided and the household expenses have been divided.  Therefore, temporary spousal support may be higher than the support that is in the final judgment.

In California, spouses have an obligation to become self-supporting after a reasonable period of time – and for short term marriages, that’s half the length of the marriage. A short-term marriage in California is a marriage that is under 10 years in duration and a long-term marriage is a marriage over 10 years. This does mean that support will continue forever on a long-term marriage.  There are numerous other factors that the court will look at as well such as the age 5and health of the parties.

Spousal support can be a key source of financial stability for a divorcing spouse, especially if they’ve been stay-at-home parents or otherwise financially dependent on their spouse. If you’re getting divorced in California, it’s important to understand your rights and obligations when it comes to alimony.

 

My professional opinion: Obey all court Orders during and after your Divorce

 

Once you have filed for divorce, the process can take several months or even longer. During this time, it is important to follow all court orders and judgments related to the divorce. This includes obeying any child custody and visitation orders, as well as financial orders such as alimony or child support payments. Failure to do so can result in serious penalties, including jail time. Generally neither party is happy with any of the orders that are made by the Courts.  The person paying support thinks that they pay too much, the person receiving support thinks that it is not enough.  Despite the feelings about the payment of support, if court orders are not complied with, you could be charged with contempt of court.

Men going through a divorce in California often have many questions about the process, particularly when the case is in Litigation. One of the most common questions is how long the divorce will take. The answer to this question depends on a number of factors, including whether the parties can reach an agreement on all issues related to the divorce. If the parties cannot agree, the divorce may take several years or even longer. During this time, it is important for both parties to follow all court orders related to the divorce. This includes obeying any child custody and visitation orders, as well as financial orders such as Spousal Support or child support payments. Failure to do so can result in serious penalties, including jail time.

 

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It is also important to make sure that you are complying with any joint custody orders and that you are working with your spouse instead of against then in decisions that relate to the children. In California when making a ruling about custody the Code holds that custody should go to the parent that is most likely to foster a relationship with the other parent. Men going through a divorce need to be aware of all of these requirements in order to avoid any potential penalties.

 

My recommendation  for “My wife wants a divorce. What are my rights?

 

In closing, going through a divorce can be a difficult and emotional process, but remember that you have rights. These can include everything from financial support to custody of your children to the division of assets. Remember that your spouse can ask for anything in a divorce: full custody, all the assets, or lifetime maintenance. While that might feel scary and upsetting, remember that asking for something doesn’t mean she is going to get it in the divorce. You have rights, which is why choosing an attorney you trust is extremely vital to getting an outcome that you are happy with. I am here for you if you’d like a consultation.

 

Family Law Attorney, Patricia C. Van Haren has been a practicing attorney since 2011. Prior to attending law school, Patricia was a family law paralegal for approximately 20 years. In that time she acted as a Paralegal for several attorneys. For several years before becoming an attorney, she assisted couples through uncontested divorces as a paralegal and document preparation assistance. After establishing her own practice, she used all of her skills and knowledge to develop her family law, estate planning and wealth management practice.

Ms. Van Haren raised her three children as a single mother while working and attending law school at nights and on weekends. As a single parent and a person who has gone through a Divorce in her past, Ms. Van Haren understands how the divorce process can impact the future of the family. Ms. Van Haren believes that where possible issues can be settled outside of the Courtroom even in the most contentious cases. She works with her clients to advocate for them and to be able to strategize and choose which issues are appropriate for litigation and which issues are appropriate for settlement. Ms. Van Haren handles divorces, paternity and custody matters, guardianship, and conservatorship matters through mediation and collaborative law. She has offices in Torrance and Irvine and handles cases throughout Southern, Central Los Angeles County and all of Orange County. To learn more, visit her website.

Like this article? Check out, “Can’t Get Over My Ex-Wife”

 

Patricia Van Haren, Divorce Attorney

 

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