One of the most frequent questions I’m asked is to explain the difference between a contested and an uncontested divorce. A divorce action is a lawsuit, and just like any other lawsuit, the filing spouse makes a request of the court and the second spouse must either formally respond to that request or not. When the second spouse responds, they file what is called a “Response.” At that point, the case becomes a contested matter. If the second spouse does not file a Response, the matter is then resolved either by default or as uncontested. The uncontested solution most often occurs when both parties have already decided on how the case is to be settled, they have an agreement as to the terms, and want to avoid paying the second “filing” fee imposed by the court. Their agreement is simply incorporated into the Judgment obtained by the filing spouse. An uncontested resolution is generally the quickest, easiest and least expensive way to obtain a divorce settlement. It is also usually the most beneficial especially where there are children.
I wish I had a nickel for every time I heard the words “Yeah, I want to settle this thing, but WITHOUT LAWYERS.”
There are many possible reasons for people to say this, but two stand out above the rest: 1) they are afraid lawyers cost too much, or 2) they don’t want to chance the other side discovering the full extent of their legal rights and options that could create a greater burden for them. While the second of these is certainly not the “high road” position, it is a common symptom of divorce and those faced with the stress of uncertainty. But, while we can’t change a person’s intent to deceive, we can certainly mitigate the harm that could result.
The root of the problem with the legal system is the lack of necessary information by those going through it. The fastest and most reliable way to get this information is by talking with a lawyer. Often it takes less than an hour to learn what you need to learn to assure yourself of your rights and what needs to be done. Sometimes, these initial consultations are offered for free, as I do with my clients. Even if you decide you do not need or want to retain a lawyer to represent you, the information you glean at the onset is invaluable and often essential to a obtaining a fair and equitable solution.
Failure to seek out this information from the start actually drives up the cost and often leads to mistakes that cannot be undone later on. These mistakes can be monetary only or they can result in devastating outcomes regarding the relationship with your children. The lack of necessary information drives up costs when people do not know what to expect, when they take untenable positions that have no chance of winning, or when they loose out on an issue they would have won if it had been timely raised. Some people resort to self-help books, which is a good place to start, but it is not enough and cannot take the place of sound legal advice from an expert. The law is complicated and gets more so each year. The rules intertwine and crossover into so many aspects of our lives that it requires constant vigilance to keep up and no book(s) can possibly anticipate all the possible scenarios.
Talking to a lawyer at the earliest possible stage in the matter is the single best thing one can do to keep the cost of the matter as small as possible, and to assure a fair and equitable result. In fact, each party having a goodlawyer to help them actually keeps costs down and gets the matter resolved faster. Whether or not you need or want a lawyer beyond the initial information gathering phase is certainly up to you. And while this choice is often dictated by realities of life beyond your control, being empowered with the essential understanding of the law as it applies to your situation, at the onset, is definitely within your control.
So, in answer to “The Question?” Absolutely, Yes.
Its been said that lawyers don’t pick their specialty…their specialty picks them.
When I first started practicing I clearly remember swearing to my friends and family that I was not going to do family law cases, and if somehow I did, I was certainly not going to handle custody cases. After having interned for a Family Law attorney during law school, I discovered how heart breaking and emotionally charged divorce cases could be. I did not want to suffer the guilt and agony I would feel if my client got a bad result due to something I did or did not do when the result involved their children. So, of course, as fate would have it, family law cases became the bulk of what was coming through my door.
To overcome my concern, I found that I was working much harder on the family law cases: I would second guess myself, going over everything multiple times to be sure it was perfect; I would do extra legal research and take extra continuing education courses on specific issues; I would sit in the courtroom just to watch and learn from my colleagues. I learned how to really listen to my clients and to turn what they were telling me into guidance for what they needed. If they needed to vent their anger and frustration, I would let them, and then once they were done, I would direct them back to the problem at hand and a plan of how best to resolve it. If they wanted “Just the facts, ma’am” (to quote Joe Friday, from Dragnet – dating myself here), I would do that. Or, if they needed a safe place to cry and shoulder to lean on, I was there. I learned to trust my instincts about people and myself. After awhile, I was getting pretty good at what I did and no longer worried about taking the difficult or complex cases. My specialty had finally picked me.
Now, 25 years later, I know it was because of my reluctance to handle family law cases and the extra efforts I made, that I am the attorney I am. I have made a difference in people’s lives by being able to help them in some of the most difficult, emotional, and stressful times in their lives. I know this because I have seen them come through it, and because they have repeatedly told me so. Many aspiring attorneys go into the field of law because they “want to make a difference” in the world. A cliche perhaps, but true nonetheless. I too was one. While Family Law is not the most glamorous of legal careers, it certainly has given me everything I ever wanted from it.
The U.S. Bankruptcy Court is not something to mess around with. One particular Chapter 7 debtor found that out the hard way. In a prior divorce action, Husband agreed to pay Wife $200 a month as part of her community interest in Husbands separate property annuity. Two years later, when Husband filed for Chapter 7 bankruptcy, he sought to discharge his debt to Wife. Wife opposed the discharge. Husband then looked to alternative remedies to get rid of his obligation to Wife. He attempted to blackmail her into giving up her claim with nude photos of her sister as a child. The attempt failed spectacularly, and Husband is now serving a prison sentence for bankruptcy fraud and possession of child pornography.
Under California Family Law, it is a mandatory obligation of parties in a divorce action to formally “disclose” to each other all information about their respective assets, debts, income and expenses. Failure to do so can cause significant financial consequences to the party failing to disclose. But if there is at least some disclosure, these penalties may not apply. In the recent case, In re Marriage of Georgiou and Leslie, Husband disclosed the nature of the community asset, but concealed its true value. The parties reached an agreement based in part on Husband’s representation of the asset’s value. Over a year later, Wife learned that the value of the asset had been substantially understated. But rather than immediately pursue her remedies to have the asset divided more equitably, she waited. In fact, she waited for over two years. Had she sought legal counsel at the time, she would have learned that she only had a limited time to fix the situation. Waiting over two years was too long, and she missed out on about $1.5 million as her rightful share of the community asset. Lesson learned: Ask, Ask, Ask, and do so as soon as possible.