Divorce Law Attorneys & Legal Services

What is a “Pro Se” Divorce?

A divorcing individual that does not hire a divorce attorney is considered to be a “pro se” litigant.

While this is permissible under the law, it is likely to leave you vulnerable to an unfavorable settlement.

Individuals frequently choose to represent themselves because they want to save money, but the unfortunate reality is that their lack of familiarity with the pertinent laws and procedures is likely to cost them much more in the long run.

In order to pursue a pro se divorce, it is essential that you understand all the disadvantages. If you are considering representing yourself, it is important that you seek the advice of an attorney.

Factors to Consider in a Pro Se Divorce

It is essential that you have a firm grasp of all the legal aspects of divorce before you continue as a pro se litigant.

Divorces can easily become complicated and a favorable settlement can be deceptively hard to come by.

Even if you and your partner are looking to settle your divorce amicably, it is important that you do not needlessly sacrifice too much.

If your case does go to court, it may be particularly dangerous to represent yourself.

An experienced attorney may be hired by your spouse, leaving you subject to an imbalance of knowledge and experience that may make it difficult to effectively present your side of the case.

What is Collaborative Divorce?

A collaborative divorce is a rather new form of ending a marriage. Developed in the early 1990s, this type of divorce relies on a resolution not based on litigation, but rather, has the divorcing spouses and their attorneys mutually agree on a divorce agreement that both sides deem to be fair.

In a collaborative divorce, both members of the couple and each of their lawyers decide to negotiate cooperatively to resolve the situation, rather than relying on litigation and court orders.

This helps the couple reach an agreeable settlement without the typical adversarial circumstances and it can lessen the trauma of an invariably difficult situation.

The final divorce terms are reached by both sides agreeing to the Participation Agreement, according to which the divorcing spouses:

• Develop settlement options
• Avoid litigation
• Ensure all discussions relating to the matters of the divorce remain confidential
• Disclose all relevant information pertaining to the process
• Are given full control over proceedings
• Identify their goals and/or interests regarding the divorce

It is also common for the Agreement to involve discussions regarding finances, parenting, and mental health.

A Cooperative Process

Since a collaborative divorce does not rely on litigation, a divorcing couple’s best interests are truly the basis of a resolution. The attorneys overseeing the process are not motivated by the urge to see their clients receive the majority of assets, properties, finances, etc. Rather, they work together to ensure that the family as a whole, if the couple has children, benefits from the resolution. Cooperation is the hallmark of the collaborative divorce process.

Collaborative Divorce Participation Agreement

During a collaborative divorce, each party signs a participation agreement which outlines the terms of the negotiations, which include:

• Discussions will be held in a constructive, fair, and non-adversarial manner
• Negotiations will focus on the best interests of the couples’ children (if any) and preserving a healthy relationship between each parent and child.
• Each lawyer will assist their client in reaching a settlement that is fair to both parties
• If one member of the couple decides to pursue litigation after the negotiation, neither of the collaborative divorce attorneys may be involved in the process

Many couples prefer to end a marriage as peacefully and collaboratively as possible, both for their own benefit and for the well-being of their children. If you wish to pursue this option, we would encourage you to consult with a San Diego collaborative divorce lawyer.

Benefits The Family As A Whole

Collaboration is widely regarded as the healthiest and most beneficial form of divorce. As it avoids litigation, which can be contentious, the collaboration also avoids potential argumentative components that can be seen in conventional divorce proceedings. The attorneys representing both parties aim to help the couple in the following ways:

• Provide assistance, both emotionally and financially
• Allow for limited financial and emotional turmoil during the divorce
• Offer assistance in addressing the needs of children, should there be any, through mutual agreements by the couple
• Keep conflict to a minimum to ensure the proceedings remain civil
• Establish a stable post-divorce relationship between the couple

Foremost, both legal counsels aim to hold a hearing that is productive, positive, and reasonable.

The Four Phases Of Divorce

A couple coming to the realization that their marriage is not working and considering divorce should be made fully aware of the steps of the divorce process and how it will affect them before, during, and after the fact.

There are four stages in a divorce that all couples deciding to end their relationship should become familiar with in order to face their new life head-on.

Accept the Divorce

Coming to the realization that the marriage truly is over maybe a shock to some people, but can be a blessing to others. If you are in the former group, helplessness and fear are common emotions experienced at this stage following your divorce. It is also common to experience thoughts of ways you may have been able to save the marriage, such as reconciliation or counseling. However, rather than concentrate on the what-ifs, it is best to instead concentrate on what’s to come.

Consult An Attorney

This is where your divorce attorney will help you. Your legal consultation will include detailed discussions regarding court or hearing procedures, proper court etiquette, reason(s) for the divorce, situations that your spouse’s attorney may use against you, etc. The purpose of the consultation is to establish goals that will assist you in the courtroom. Your attorney will definitely be an invaluable ally when divorce proceedings begin, as he/she will do everything in their power to be an effective advocate for your case.

Amicably Settle Differences With Your Ex-Spouse

The divorce has now been finalized. Assets have been distributed and visitation rights regarding your children, should you have any, have been settled. However, if you do have children, then you and your ex-spouse are forever bound through them. It’s important not to make the situation about the two of you. Instead, settle your differences for the sake of your children. Remember, if you share joint custody, your spouse has the exact same rights to see his/her children as you do.

Moving On

The hardest is over, and now it’s time to start anew. If you are the former wife, it isn’t uncommon to retain your married surname if you wish. However, if you’d like to adopt your maiden name once again as a means of moving on, then it is easier to do so in a divorce. Seeking new residence if you are the spouse who has moved out may be difficult at first, but can help you to start over. Establishing new friendships or maintaining the ones made with your spouse will also help.

Divorce Motions

Irreconcilable differences can leave a couple in a deadlock, making it necessary to have a judge determine the exact terms of their divorce settlement. During this period, a couple’s lawyers will oftentimes file “motions” seeking for the resolution of a particular point of contention.

If you are preparing for a contested divorce, it is important to speak with a skilled and experienced attorney about how to handle a situation that is pending trial. Passionate legal representation and knowledgeable counsel can help you to more fully understand your rights and to take actions that may assist in obtaining a favorable outcome. Contact the San Diego divorce attorneys of Fischer & Van Thiel, LLP, today at 858-935-6211 to schedule a free consultation.

Common Divorce Motions

A motion is a formal written request that is submitted to the court seeking a decision on a specific aspect of a case. The following are some issues that may typically be addressed by motions during divorce proceedings:

• Child Support
• Health and Life Insurance
• Restraining Orders
• Allowances
• Continuance

In some instances, a temporary solution obtained through a successful motion will be able to promote the safety and well being of all parties involved. Moreover, they may be instrumental in bringing some important issues to light. For example, motions for evidence may prompt one party or another to submit to drug tests, physical exams, or mental health evaluations.

Some people will not voluntarily participate in these examinations. Therefore, a court order may be needed to obtain the evidence necessary to prove important facts that bear upon your case. The results of the findings may affect both temporary orders as well as the final divorce settlements.

Irreconcilable Differences

Divorce statistics suggest that nearly 60 percent of divorces are sought due to irreconcilable differences. In many states, including California, irreconcilable differences are a just and accepted cause for divorce and are primarily used in no-fault divorce cases. Most irreconcilable differences are considered to be any conflict that the couple cannot or does not want to resolve in order to save the marriage.

If you and your spouse are considering filing for divorce because of irreconcilable differences, you need a qualified divorce lawyer to help you to ensure that your interests are protected. Contact the San Diego divorce lawyers of Fischer & Van Thiel, LLP, at 858-935-6211.

Sources of Irreconcilable Differences

In a case involving irreconcilable differences, neither the husband nor wife acknowledges or accepts responsibility for causing the split. This can lead to increased conflict and tension if each party insists that the other is to be blamed, resulting in a frayed and irreparable relationship. Sources of irreconcilable differences can vary significantly, but some of these include:

• Financially problems in the form of debt or spending habits.
• Broken trust due to lies or the learning of previously undisclosed information
• Emotional conflicts
• Long-distance separation
• Mutual resentment

The divorce process can be difficult on many levels, and a desirable outcome is unlikely if you do not have the advice, counsel, and representation of a skilled San Diego divorce attorney.

Multiple Divorces

Every year, hundreds of thousands of Americans make the difficult decision to divorce their spouse.

For many people, marriage and divorce are repeated patterns in their lives, and they may be preparing for their second, third, or even fourth divorce.

If you are in the process of divorcing for the second, third, or other time, you probably have many legitimate concerns about whether your previous divorces will affect your current one.

Consulting with an experienced divorce lawyer can help you to understand how the separate divorce cases may bear upon each other and to avoid committing crucial errors.

If you or someone you know is contemplating a divorce that is not your first, you know how important having quality legal representation is. 

Complications from Multiple Divorces

Unfortunately, previous divorces can affect your current one in a number of ways, but having a dedicated lawyer by your side can greatly help.

Issues such as child custody, finances, and property disputes may become more complicated with multiple divorces.

There are a number of complicated issues with multiple divorces, such as:

• Multiple alimony payments
• Vehicle and property ownership disputes
• Division of assets
• Child and step-child custody and visitation schedules
• Ownership of funds

Infidelity and Divorce

In the United States, just over half of all marriages end in divorce. Reasons for divorce can range from infidelity to incompatibility, with the former being the most cited.

Infidelity is seen by most societies as the ultimate betrayal in a marriage, and divorce is the most common result of unfaithfulness.

Statistics Among Husbands And Wives

According to one study, as many as 60 percent of husbands and 40 percent of wives are likely to commit adultery at some point in a marriage.

Nearly 70 percent of divorce cases cite infidelity as the reason for ending the marriage, with affairs lasting an average of two years.

Effects Of Unfaithfulness On The Spouse

Discovering your spouse’s infidelity can be devastating. This discovery can lead to anger and bouts of depression, and the spouse who has been cheated on may feel that the affair was in some way his/her fault.

Many couples seek counseling in an attempt to salvage the marriage. For those who are unable to, a divorce is a final option.

Effects Of Unfaithfulness On Divorce Proceedings

As California is a no-fault state, infidelity will have little to no effect on divorce proceedings. It can, however, fall under irreconcilable differences.

This means that the couple cannot reconcile or are unable to make the marriage work. When it comes to topics such as child custody, infidelity can play a role.

If the cheating spouse can be proven to be a loving and supportive parent despite the affair, the court may not take infidelity into consideration.

If the opposite occurs, that parent may lose custody rights.

Which Type Of Divorce Is Best For You?

It can be difficult for a couple to decide to end their marriage. Whatever has caused a couple to consider a divorce, however, it is best for all involved parties to know the various options available to them. Every divorce is different, and the circumstances surrounding a couple’s separation will dictate which method is best. It is important to understand how each of these methods can help either party avoid situations that can make the divorce process more difficult.

No-Fault

As the term suggests, a no-fault divorce is filed when neither party is required to prove that fault exists regarding the other spouse. Irreconcilable differences or incompatibility are often cited as causes for this type of divorce.

California pioneered the no-fault divorce in 1970. Under the law, married couples wishing to end their marriage no longer need a reason for divorce beyond “irreconcilable differences.” But what does this mean for the divorce proceedings? How will this affect the divorce settlement? For example, if there are children involved, who will get custody?

What Does It Mean to Get a No-Fault Divorce?

When you file for a divorce in the state of California, you do not have to prove that your spouse did something wrong to warrant the divorce.

In California, couples cannot receive fault-based divorces or divorces that result from one spouse committing an act that would serve as a basis for the divorce, such as adultery.

Since California only grants no-fault divorces and is a community property state, all property acquired during the marriage is divided equitably in the divorce proceedings unless there is a separate agreement regarding such matters, such as a prenuptial or postnuptial agreement.

The fault does not factor into the division of property, so it does not matter if there was a fault that caused the divorce.

Additionally, the fault does not factor into determining spousal support, so even if your spouse was at fault for causing the divorce, you may still have to pay spousal support to him or her.

(At) Fault

This form is the complete opposite of no-fault. In this scenario, one spouse will state a reason as to why the other spouse is at fault for the termination of the marriage. Such reasons may include, but are not limited to:

• Adultery
• Domestic violence
• The mental instability of one of the spouses
• The commitment of a criminal act by one of the spouses

Reasons for at-fault filings vary by state.  California is a no-fault state and at-fault filing is not an option.

Contested Divorce Lawyers

When a couple decides that divorce is the only way to remedy the dissatisfaction that has arisen in a marriage, rarely do they agree on all matters regarding property division, debt allocation, alimony, and child custody and support.

In some cases, even the counsel of their individual lawyers may not be enough to help them to reach a compromise. When a divorce case must be taken to court for a final settlement, it is referred to as a contested divorce.

Reasons for Contesting a Divorce

Contested divorces are very common as sometimes a court decision is the only way to end an ongoing dispute between the divorcing parties. Issues that might cause a couple to take their divorce to court can include disagreements regarding the following:

• Child custody and visitation rights
• Alimony and child support payments
• Division of property and debts

If you and your spouse are having difficulties reaching fair agreements in your divorce settlement, you may need to take your divorce to court. It is important to have an experienced, qualified San Diego divorce attorney on your side to help you to achieve a reasonably fair outcome.

Uncontested Divorce Legal Process

Although filing an uncontested divorce is a simpler process than a contested divorce, there are still potential legal pitfalls to watch for.

An experienced attorney can help to ensure that your rights and interests are protected throughout negotiations so that you receive a fair settlement. We can help you with all aspects of your divorce, including:

An uncontested divorce occurs when spouses work together to come to an agreement on the following:

• Spousal Support Alimony
• Property division
• Child Custody / Support / Visitation
• Conservatorship
• Mediation

A contested divorce results when any of the issues above cannot be worked out by the spouses and outside parties are required to make a decision on these matters.

When entering into an uncontested divorce, it is important to have a lawyer who you can trust to represent you throughout mediation and settlement negotiations to ensure that a fair agreement is reached.

Our responsible, committed lawyers will work diligently on your behalf to pursue a positive resolution in your case.

We understand how important a full and fair settlement is for your life after divorce and are prepared to provide the personalized legal representation that you need.

Collaborative

Collaborative divorce involves both spouses, with the assistance of their attorneys, formulating agreements and mutually agreeing to terms. Collaboration is considered to be the least expensive form of ending a marriage.

Electronic

This form is rare due to the rules set forth by certain jurisdictions. Electronic divorce is performed through the submission of an electronic form for the dissolution of marriage.

Mediation

This occurs when spouses decide to go forward without the assistance of attorneys. Rather, a mediator, who may also be an attorney, assists both parties and helps them reach an agreement.

Summary Divorce

There’s a good chance that even if you’re filing for a divorce, you’ve never heard of a summary divorce.

It’s a very particular type of divorce available in certain jurisdictions that provides for a much simpler, less painful procedure.

Naturally, because of the nature of a summary divorce, there are quite a few requirements you have to meet before you can file for it.

However, if you do qualify, it can save you a lot of time and money over a more traditional divorce. 

The Basics of Summary Divorce

Summary divorce is a divorce option offered in some jurisdictions, including California, that provides a simple divorce route for couples with no children and few assets.

Because these are usually the big arguing points in a divorce, summary divorces forgo a lot of the most difficult parts of a standard divorce.

The usual qualifications for a summary divorce are:

• The marriage must have lasted for less than five years.
• The marriage did not produce any children.
• There is little or no real property; that is, real estate.
• Combined assets are less than a certain threshold, usually around $35,000.
• Individual assets are less than a certain threshold, usually the same as the combined assets.

If you qualify for a summary divorce, you will face a lot less of a hassle than traditional divorce procedures afford.

Usually, the proceedings will be much shorter and require only a few court appearances.

If you meet the qualifications, you may want to seriously consider this form of divorce, since it is much less expensive and frustrating.

Divorce for Men

Men face particular challenges when going through a divorce. They have to deal with issues about alimony, child custody, child support payments, and property division which are similar to, but distinct from, the problems faced by their former wives.

Alimony for Men

One of the biggest issues concerning men going through a divorce is alimony, the money paid for spousal support. The concept of alimony descends from the belief that your obligation to support your spouse does not end at divorce.

While in recent years alimony has been occasionally granted to men, more often than not, men are required to pay alimony to their ex-wives.

The amount you pay in alimony is determined by a number of factors, namely:

• Length of marriage
• Amount of income
• Amount of income made by your ex-spouse
• Your earning potential

Child Custody and Child Support

Critics of the child custody system often claim that courts prefer to award child custody to the mother rather than the father.

In recent years, the nascent Fathers’ Rights movement has sought to change this perceived bias in the divorce court system.

In many cases, for the father to be granted custody, the mother will have to be proven to be unfit to take care of the children.

However, while men are seldom awarded physical custody of the children, they do have a degree of legal custody.

Legal custody is the right to have a say in the large decisions which affect the raising of the children: choosing what school the children will attend, having a say in their religious upbringing, and making decisions about the healthcare the children will receive.

In most cases, a non-custodial father will be expected to make child support payments. These payments will help provide the clothes, food, medical attention, and other needs the children have.

Property Division

When you get a divorce, all of the property that belongs to the married couple has to be divided between the husband and the wife.

Usually, this is left to the discretion of the couple, and as long as the division is considered to be fair, the courts will support it.

A divorce lawyer can help you reach an equitable division of property.

Divorce for Women

Divorce can be a difficult process for both halves of the couple seeking a split, but women face certain issues that are unique to them.

Women and men are treated slightly differently by the court, and it’s important that you be prepared for the issues you are likely to face when you begin divorce proceedings.

The San Diego divorce attorneys of Fischer & Van Thiel can help you with the unique challenges facing women during a divorce.

Child Custody and Child Support

The courts usually favor the mother when awarding child custody. As a mother, there is a good chance that you will gain custody of the children, barring certain extreme circumstances, such as drug or alcohol addictions, psychological problems, or a history of abuse or neglect.

Even if you do have physical custody of the children, your ex-husband will probably also be granted legal custody, meaning he has the right to help make decisions governing the child’s well-being, such as what schools they attend, their religious upbringing, and the medical care they receive.

If you do receive custody of the children, your former husband will probably be required to make monthly child support payments.

This money must go to the care of your children and will help cover the costs of clothing, food, shelter, medical attention, schooling, etc.

It is not taxed, as long as it meets the requirements for being court-ordered child support payments.

Alimony for Women

Alimony is spousal support, money which is paid monthly to a former spouse to maintain his or her standard of living.

Until recently, alimony was almost strictly awarded to women, and it is still far more common for women to receive alimony than it is for them to pay it.

Alimony is usually awarded based on several conditions, such as:

• The duration of the marriage. Marriages under 10 years in duration are less likely to involve large alimony payments or permanent alimony agreements.
• How much money your former husband makes, versus how much money you make.
• The financial prospects of both former spouses.

Occasionally, women have been required to pay alimony to their ex-husbands, but this is usually only in cases of a serious discrepancy in income.

Unlike child support, alimony is taxed. If you receive it, you are required to list it on your income tax forms. If you pay it, your ex-husband will have to list it.

Property Division

When you go through a divorce, all of the communal property in the marriage will have to be divided. You and your ex-husband will probably have to sit down and come to an agreement about how you will divide the property.

Usually, the courts will honor any agreement that they consider fair. 

Family Law Legal Cases We Routinely Handle Involving:

Divorce Law: Including Annulments, Contested, and Uncontested Divorces
Military Divorce Attorney: Experienced with uniques situations of Military Relationships
Mediation: Mediation encourages divorcing spouses to cooperate and avoid trial costs
Child Custody: Including Visitation, Negotiations, Modifications & Enforcement Actions
Child Support: Including Monitary Negotiations, Modifications & Enforcement Actions
Legal Guardianship: Application Preparation, Fitness Assessment, Legal Representation
Adoption: Including Step-Parent, Agency, Private, and International Adoptions
Prenuptial Agreement: We can help you draft and enforce favorable agreements
Paternity: Actions for those seeking custody rights and support payments
Legal Separation Agreement: Traditional and Same-Sex Marriages
Spousal Support (Alimony): Agreements for Spousal Support or Maintenance
Domestic Violence: Including representation for Abuse and those Accused of Abuse
Civil Harassment: We can help you seek a Civil Restraining & Enforcement Orders
Juvenile Court: Including guardianship, juvenile delinquency, and dependency matters
Marital Property Division: Representation as you divide property during divorce
Estate Planning: Including wills and probate