Q: We are going our separate ways. We both agree, so it probably will not get out of hand. But are there certain pitfalls we should look out for? I am not talking about impact on kids (we have none) or the emotional fall-out. I am talking about legal consequences. Also, is divorce more sensible than legal separation?
S.J., Cypress
A: Research indicates the common pitfalls of a legal nature when a couple calls it quits include: (a) not making careful enough evaluation of the tax impacts, let alone other financial consequences of going your separate ways; (b) one or the other provides an inaccurate statement of assets and/or liabilities; (c) decisions are made in the heat of the moment; (d) you hire a lawyer with whom you ultimately do not have sufficient confidence, and/or who proves to be much more expensive than you anticipated, and (e) the legal process is even more frustrating than you imagined.
You also inquired about whether legal separation is advisable, as compared to dissolution. The latter (divorce) covers all aspects of the relationship, which is being terminated. At that point, either can legally remarry. Legal separation, on the other hand, means you remain married, but live separately. You will have your property divided by agreement, and may have one or more support orders; if there are kids, then custody and visitation orders would be likely. With legal separation, either can still have the advantage of benefits to which the other is entitled, such as health insurance.
Bottom line, there are important niceties that have to be carefully reviewed before making the decision to enter into a legal separation, or “go all the way” with divorce.
Q: Is there an advantage to being the one who files first for divorce?
P.N., Manhattan Beach
A: It is not a matter simply of filing first. You want to be well prepared, and have your ducks lined up, so you are not trying to pull the pieces together as the case proceeds.
Filing first does get the show on the road, if you are concerned about initial delay. Also, once the spouse is served with the papers (including the summons), California law places an automatic temporary restraining order that can prohibit your spouse from taking the children out of state, from altering marital assets and from changing life insurance. Further, if you file first, you are choosing the court location, at least at the start (your spouse may try to challenge the venue, but you make him or her go to that effort).
Keep in mind, however, that family law is a certified specialty. Consultation with a knowledgeable attorney is strongly recommended.
Ron Sokol has been a practicing attorney for more than 40 years, and has also served many times as a judge pro tem, mediator, and arbitrator. It is important to keep in mind that this column presents a summary of the law, and is not to be treated or considered legal advice, let alone a substitute for actual consultation with a qualified professional.