The below originally appeared in CorporateLiveWire’s Virtual Round Table – Family Law 2024, August 2024.
1) Can You Talk Us Through The Process For Divorce In Your Jurisdiction?
In the United States, the law and procedure regarding a divorce is state specific. I am a California attorney, so my answer is addressed to procedures in California. Basic questions and answers regarding the divorce process in California are:
What is the basic divorce process?
The (very) basic divorce process is:
- File for divorce
- Disclose finances
- Work out an agreement or litigate
- Submit final paperwork
- Receive signed judgment
What are the divorce requirements in California?
In California, one of the spouses must have been a resident of the state for at least six months in order to file for divorce, although cases can be initiated sooner for certain emergency orders and for a legal separation. Choice of filing county depends on the county of residence of one of the parties.
How long from filing until I will be divorced?
In California, there is a six-month mandatory waiting period once divorce papers have been filed and served for a marriage to be ended by a divorce judgment. Property, support and child custody matters can be addressed sooner – if resolved consensually – or later, if still in dispute. The length of a divorce varies greatly case by case. In general, the less you fight the quicker your divorce will be. Most high-net-worth divorces take one to two years to complete by settlement – and longer if by judicial decision. There are often interim matters to be decided along the way. If there are no children, and fewer property and support issues raised, the process is quicker.
Do I have to go to court for my divorce?
When it comes to divorce, court is not your only option. The majority of divorce cases resolve outside of court by settlement with the aid of attorneys representing the parties, or by opting for mediation or a collaborative divorce process. Sometimes however, a trial is necessary to reach a fair resolution of a family’s dispute, either on some or all issues. The policy of California law is to urge parties to settle as many issues as possible, before seeking a decision by a judge. It is possible to settle certain issues and “bifurcate” others, to move the process of resolving a divorce case forward, easing the emotional and financial cost on the parties.
— By Dena A. Kleeman
2) Have There Been Any Recent Regulatory Changes Or Interesting Developments?
California family law is always evolving, to address current social trends – and problems that arise from them. In California’s court system, our legislature enacts laws and a related body implements them in regulations. But our courts are very effective in construing those laws and refining their meaning.
In the past several years, our statutory changes have evolved mostly in the area of domestic violence, child custody (as related to domestic violence situations) and premarital agreements. There is also a very recent push to permit couples who have resolved, or are resolving, their case through a mediated process, to file a joint Petition for Dissolution of Marriage, to expedite their case.
In the domestic violence arena, there is a broadening of the definition of what constitutes violence, to include situations that do not involve physical abuse (but abuse as harassment through electronic means, abuse through controlling conduct, and abuse through sexual coercion). Individuals under restraining orders to prevent abuse have significant limitations on their custody rights (rights of access) to their children.
In the arena of premarital agreements, recent statutory changes (and cases decided by courts) have focused on making sure the process is a fair one, and that time is adequately given for the marrying couple to consider the legal rights they are waiving and obligations they are taking on. By, for example, a waiting period, the requirement to obtain legal advice, and other process protections.
— By Dena A. Kleeman
3) What About Noteworthy Case Studies Or Examples Of New Case Law Precedent?
New case law precedent that has brought upheaval to family law litigation in California involves new requirements for the presentation of evidence, and the use of evidence that experts can rely upon in valuations of assets, in recommendations on child custody, and on assessments of someone’s ability to work and earn a living. In short, the new requirements limit evidence that relies on someone else’s statements, or observations, pertaining to the case. An appraiser cannot testify to the square footage of real property, without properly authenticated government records of lot size/square footage. A child custody professional cannot recommend to the court a child custody arrangement based on a recounting of what a school teacher, police officer, or a nanny told them. Those individuals need to be subpoenaed and come to court. This evolution has, unfortunately, increased the cost of litigating a divorce case, in many respects.
— By Dena A. Kleeman
5) Some Of The Common Misconceptions Around Pre-Marital Agreements Are That They Set The Marriage Up To Fail And They Are Not Legally Enforceable. What Is Your Opinion Of Pre-Marital Agreements And What Best Practice Advice Would You Offer To Anyone Drafting Theirs?
I prepare many premarital agreements, and believe they have many salutary effects. Here are many of their benefits in the event of divorce or unexpected death:
- They encourage a conversation with an individual’s fiancé about his/her spending preferences (i.e. are you a saver or spender?).
- They educate individuals about how California (or his/her state of residence) marital property laws would apply to their financial affairs during marriage, to help make informed choices as to what you want.
- They allow an individual to plan for what funds the couple would like disposable to each, such as control over certain spending decisions during marriage. For example, with one of the spouses needs to save earnings for retirement; while other spouse has inherited wealth and doesn’t need that ability.
- They allow a couple to plan for flexibility in investment of joint funds, or which of the couple is free to make certain decisions about those funds.
- They are designed to avoid future disputes over the terms of a divorce (or disputes with heirs) should this come about.
— By Dena A. Kleeman
6) Can Pre-Marital Agreements Be Amended Or Cancelled To Address New Circumstances After Marriage? If So, How Often Or At What Stage Should This Be Evaluated?
Premarital agreements can be modified at any time, although both “parties” to the Agreement must agree on the modified terms, and the formalities for the modification must be followed, for example, they must be in a written agreement with notarisation. Premarital agreements can also be revoked in their entirety by mutual written consent and they effect of the revocation considered on existing property and/or support rights and benefits.
— By Dena A. Kleeman
7) Once An Individual Has Decided They Want A Divorce, Who Should They Tell First: Their Spouse Or Their Attorney?
If someone is considering a divorce, it is smart to consult with a divorce attorney in advance. The consultation is completely confidential and provides information to help an individual to make an informed choice about whether to divorce, what will be involved financially, and with respect to any children of the marriage.
That said, the decision to divorce is a very personal one – an emotional choice that has ramifications for an individual’s emotional wellbeing, that of their spouse and that of any children of the marriage. Unless there are safety concerns, or concerns that one spouse will hide or abscond with financial information, I encourage my clients to speak with their spouse about wanting a divorce, the process of “dispute resolution’ to use, initial planning for separating their households, and, in particular, how to discuss divorce with children, and prepare them for this major change in their lives.
Indeed, many couples seek information from mental health professionals to help them protect their children during (and after) the divorce process. This is a wise step.
That said, the decision to divorce is a very personal one – an emotional choice that has ramifications for an individual’s emotional wellbeing, that of their spouse and that of any children of the marriage. Unless there are safety concerns, or concerns that one spouse will hide or abscond with financial information, I encourage my clients to speak with their spouse about wanting a divorce, the process of “dispute resolution’ to use, initial planning for separating their households, and, in particular, how to discuss divorce with children, and prepare them for this major change in their lives.
Indeed, many couples seek information from mental health professionals to help them protect their children during (and after) the divorce process. This is a wise step.
— By Dena A. Kleeman
8) What Are The Main Challenges When Dealing With Complex Assets Following The Breakdown Of The Family And What Measures Can Be Implemented To Achieve A Positive Outcome?
I typically refer to a “complex asset” case as a “high-net worth” divorce.
A high-net worth divorce is not defined by a strict dollar value, but raises a host of tactical, legal, and procedural complexities. These cases often include business entities that present valuation and division issues, requiring adjunct forensic accountants, appraisers, tax and transactional business attorneys to create a winning, professional team.
High-net worth divorce cases also present asset protection strategies, out of state property, and third-party ownership of community assets that require additional procedural steps.
A high-net worth divorce often includes many types of compensation – equity compensation, deferred compensation, rents, royalties, residuals, and other future income streams, perquisites, deferred compensation that require analysis of tax attributes, and techniques to divide them in the context of a divorce case.
Dividing assets in a high-net-worth divorce takes the work of a team. Our office partners with forensic accountants, financial advisors, business valuators and licensed appraisers to ensure that our client’s best interests are protected at every turn.
— By Dena A. Kleeman
9) How Is Child Custody Usually Determined During The Dissolution Or Separation Of Marriage?
California law puts the safety of children first when it comes to making child custody determinations. A child’s ability to have frequent contact with parents is also a major consideration since California law is designed to encourage parents to share the rights and responsibilities of child rearing.
Other considerations in custody decisions include the child’s developmental stage and personality, the pattern of historical care, and the child’s unique special needs (including special educational needs).
A judge will consider how the child has spent his or her time in the past, but is not necessarily bound by the “status quo”. The court makes its custody decision based on the “best interests” of the child.
California also recognises that children may be bonded to more than one parent or caretaker. Our unique, “three-parent” statutes aim to keep children together with those to whom they are bonded.
Types of custody:
Two types of custody must be assigned when getting a divorce or in a parentage case – physical custody and legal custody.
Custody jurisdiction:
Sometimes there are questions regarding which court should hear a particular child custody case. Jurisdictional requirements are governed by both state, federal and international treaty law. Most recently, California passed legislation to protect parents and children who come to this state for gender transitional treatment. Other situations can present jurisdictional and other legal challenges when a parent wishes to move out of California.
Other considerations in custody decisions include the child’s developmental stage and personality, the pattern of historical care, and the child’s unique special needs (including special educational needs).
A judge will consider how the child has spent his or her time in the past, but is not necessarily bound by the “status quo”. The court makes its custody decision based on the “best interests” of the child.
California also recognises that children may be bonded to more than one parent or caretaker. Our unique, “three-parent” statutes aim to keep children together with those to whom they are bonded.
Types of custody:
Two types of custody must be assigned when getting a divorce or in a parentage case – physical custody and legal custody.
- Legal custody: Legal custody gives parents the right to make decisions for their child. These decisions include decisions pertaining to healthcare, education, religious upbringing, extra-curricular activities and overall welfare. Legal custody can be joint or sole, meaning that parents can share legal custody or it can be exclusively assigned to one parent.
- Physical custody: Physical custody refers to who the child physically lives with. Physical custody can be joint or sole (primary). Joint custody does not always mean an equal 50/50 split in time, however. Each child custody schedule should be tailored to the unique circumstances of the family. Popular child custody schedules vary, from alternating weeks (50/50 split), to alternating weekends (one parent has primary custody and then alternates weekends with the other parent). When creating a child custody schedule, the best interest and wellbeing of the child should be the top priority.
Custody jurisdiction:
Sometimes there are questions regarding which court should hear a particular child custody case. Jurisdictional requirements are governed by both state, federal and international treaty law. Most recently, California passed legislation to protect parents and children who come to this state for gender transitional treatment. Other situations can present jurisdictional and other legal challenges when a parent wishes to move out of California.
— By Dena A. Kleeman
10) At What Age Does The Court Consider The Child’s Wishes Regarding Visitation?
By age 14, assuming a child wishes to address the Court on custodial preference, they are permitted to do so, although their input is just one factor for the Court in making its ‘best interests’ decision on visitation. For example, a child may wish to be with a “lenient” parent, while the parent seeking to impose salutary rules and limitations on conduct is seen as the less preferred parent. Other examples include a child wishing to be with a parent who can be abusive, because the child is scared of choosing otherwise. A careful probing by the court, and ancillary professionals, is often needed to ‘tease out’ the meaning behind the voiced preference.
— By Dena A. Kleeman
11) Must A Parent Enforce A Visitation Order And What Are The Consequences For Failure To Produce The Child For A Visit?
Courts expect parents to follow orders for visitation, and enforcement can include changes of custody, or even contempt convictions and sentences (quasi criminal penalties). That said, there is a recognition that, by a certain age, a child cannot be “forced” and parents need to “encourage” the visiting. Courts use tools for this encouragement, including parental and child counselling; gradual step ups in visits; and a re-arrangement of custodial time, to help make the visitation happen. There can be, of course, limitations if a court comes to understand that the refusal or reluctance to visit is truly due to harmful conduct on the part of the “resisted” parent.
— By Dena A. Kleeman
12) At What Age Can A Child Refuse To Visit With A Parent Or Self-Emancipate?
Emancipation in California requires a child to have financial self-sufficiency (such as a minor working in the entertainment industry) and be at least 14 years of age or older. A child can also become emancipated (free from parental support and control) if they enter the military or marry).
For a child who just doesn’t want to visit, there is no set age, but, instead, there are family issues to be addressed by the courts, as I addressed above. Some judges are more pro-active than others in trying to keep children and parents in contact.
For a child who just doesn’t want to visit, there is no set age, but, instead, there are family issues to be addressed by the courts, as I addressed above. Some judges are more pro-active than others in trying to keep children and parents in contact.
— By Dena A. Kleeman
13) What Are The Main Challenges Surrounding The Breakdown Of International Families And What Considerations Will Be Made When One Or Both Spouses Wish To Relocate Abroad?
This is a very challenging area of family law. The United States is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, and we have an interstate compact, the Uniform Child Custody Jurisdiction and Enforcement Act, that contains custody and visitation enforcement provisions that govern not only across our state lines, but internationally. The goal is to honour the child custody orders of foreign nations, so long as they are obtained with ‘due process’ and are not in violation of basic human rights (i.e. against our public policy). The U.S. Department of State, as well as private attorneys, seek to enforce these international child custody orders.
But, of course, the decisions start with a court having jurisdiction making an order for child custody and visitation consistent with the best interests of the child involved. This includes permitting a child to move with a parent abroad, if that is determined to be in the child’s best interests; but putting in place visitation orders for the “left behind” parent. Various techniques have been used in California to assure compliance, including the posting of bonds, ordering “mirror” registration of the custody orders in the foreign country to which the child is moving, and charging the costs of travel for visitation to the moving parent.
But, of course, the decisions start with a court having jurisdiction making an order for child custody and visitation consistent with the best interests of the child involved. This includes permitting a child to move with a parent abroad, if that is determined to be in the child’s best interests; but putting in place visitation orders for the “left behind” parent. Various techniques have been used in California to assure compliance, including the posting of bonds, ordering “mirror” registration of the custody orders in the foreign country to which the child is moving, and charging the costs of travel for visitation to the moving parent.
— By Dena A. Kleeman
14) Has The Recent Increased Use Of Technology In The Legal Industry Helped To Expedite Proceedings Or Alleviate The Strain On The Legal System For Family Law Matters?
The use of technology has, in many instances, expedited the appearances of witnesses to facilitate litigation in the family law courts. As litigators, we have had to learn to conduct “remote trials” where witnesses testify from remote locations. Due to Covid, this was implemented quickly, although at great expense to the courts.
The strain on our family courts is still there, however, and ever-growing. Many litigants are turning to private judges (which are paid for by the parties), instead of the public court system, to expedite decision-making in their cases. Of course, there is controversy over the use of AI for legal research and briefing.
The strain on our family courts is still there, however, and ever-growing. Many litigants are turning to private judges (which are paid for by the parties), instead of the public court system, to expedite decision-making in their cases. Of course, there is controversy over the use of AI for legal research and briefing.
— By Dena A. Kleeman
15) What Are The Pros And Cons To Resolving Divorce Cases Through Alternative Means Such As Mediation Or Dispute Resolution?
Mediation process: In mediation, the goal is to find an agreement that is satisfactory to both parties. Cooperation and collaboration is essential, but this does not mean that the parties have to agree on everything initially.
Benefits of mediation: There are many advantages to mediation. Some of the top benefits include flexibility, faster outcome, reduced costs, greater control, privacy, and preservation of relationship.
Flexibility: Mediation is designed to be efficient and flexible. Instead of waiting for the assigned court date, couples schedule their sessions to fit their schedule and needs. Mediation appointments with our mediation lawyers can be conducted virtually or in-person, which also allows for greater flexibility.
Faster outcome: Want your divorce to drag on? Fight over everything. Want to speed up your divorce? Compromise. Mediation allows couples to set the pace in their divorce instead of waiting on the court.
Reduced costs: In mediation, a couple hires a third-party mediator to help work out the details of the divorce which is typically reviewed by a consulting attorney prior to signing an agreement. Even if a couple cannot settle on every issue, mediation can still be financially beneficial. Instead of litigating every aspect of the divorce, mediation allows a couple to settle on the issues they can compromise on and then litigate the rest.
Greater control: When a couple resolves their divorce in court, a judge decides the nuances of their settlement. When a couple mediates, they are able to maintain control of their settlement and walk away with an agreement that works for both parties.
Privacy: When an individual goes to court, their divorce proceedings are public record (unless the judge orders the records to be sealed). In meditation, divorce proceedings are confidential and private.
Preservation of relationships: When children are involved in a divorce, maintaining a civil relationship with the other parent is optimal. Mediation allows parties to reach an agreement that works for each individual and walk away with a working relationship.
But for mediation to be effective, each party must be able to speak freely and advocate for themselves (with the help of the mediator). If abuse is a part of the picture, mediation is not the right fit.
Mediation is a possible option at every stage of the divorce, even if you are in the midst of litigation.
Another potential dispute resolution method for divorce is collaborative divorce, in which attorneys commit to negotiating cases to settlement, only, and will not serve as the litigating attorney if the collaboration method does not result in settlement. The concept behind collaborative divorce is to keep participants focused on options for resolution, rather than fomenting and further conflict.
— By Dena A. Kleeman
