The divorce process is commonly a long-drawn-out excursion filled with fear, contention, and emotion. In this article, I will lay out the basic steps of a divorce. I will go through a logical sequence and you should recognize that it is not always in this order. Many of these concepts are similar in all states, but divorce is a state-regulated event. My discussion is very California-centric.
Choosing an attorney. A personal and/or professional recommendation is important. How do they treat their clients? What was your friend’s experience? Did the attorney take a reasonable approach or a scorched-earth approach? Beyond the attorney being self-proclaimed expert in family law, I like to see that the attorney is a Certified Family Law Specialist (“CFLS”). That said, many state bar associations do not have such a specialty.
Date of Separation. The law (California) defines “separation” as the intent to no longer continue the marriage. The objective criteria are [1] to express to the spouse the intent to end the marriage, and [2] his/her conduct is consistent with the expressed intent. Part 1 can be argued (“he said, she said”) and Part 2 can become a subjective test that is often litigated because differing dates result in different property settlement results. Earnings and assets acquired after separation are separate property—so one party claims certain assets are his/hers alone while the other claims they are marital assets to be shared.
Filing for Divorce / Serving & Being Served. Once a case is opened in Superior Court by one party who is known as the Petitioner, the other spouse (Respondent) must be “served” a Summons, and service must be performed by a 3rd party. Oftentimes a party chooses to hire a process server but they can use a friend or family member. Upon filing the Summons and Petition, the Petitioner is subject to Automatic Temporary Restraining Orders (“ATROs”). The Respondent is subject to the ATROs once served.
ATROs. These restraining orders are “automatic”. There is no formal restraining order from the court for these items (as distinguished from restraining orders where harassment or spousal abuse is alleged). The ATROs state what you are restrained from doing—what you cannot do—pending the conclusion of the divorce. They include things like concealing assets and changing beneficiaries. You can read them here on page 2 of the summons.
Property Settlement. The court’s base assumption is that all property is marital property, and in California community property. If there are separate property claims (gifts, inheritances, property brought into the marriage), they must be proved to the court. Each party is allocated 50% of the joint marital estate. One spouse may take one asset (the house) and the other take another asset (the retirement account); and some assets may be split unequally to make the total to each 50-50. Parties frequently settle their cases prior to trial. If they are unable to reach an agreement on all issues, the unresolved issues will proceed to trial. Trial is a scary experience because the parties are relying on a Judge who does not know the parties, does not care about the parties and could make a decision that, although might help one, could be devastating to the other.
Income Tax Filing. A common misconception is that a couple must file Married Filing Joint if the divorce is not final. No one can be forced to file a joint tax return. Each person can choose and, based on their fact pattern, it can be Married Filing Separate or Head of Household.
Divorce is Final!! Title to assets need to be changed in conformity with the judgment. House retitled into one name; IRAs transferred; cash in bank and brokerage accounts allocated to the right party, registration of cars corrected, etc. In addition, beneficiary designations should be changed – 401K accounts, IRA accounts, life insurance policies, annuities, bank accounts, etc. Also, your estate documents should be updated—wills, revocable living trust, powers of attorney, and advanced health care directives.
The above lays out the landscape, general sequence of events, and issues involved in a divorce. This is not intended to be specific advice for your situation, rather informational and to provide guidance as you engage a family law specialist.
Mark L Prendergast is a Certified Divorce Financial Analyst (CDFA®), Certified Public Accountant (CPA), and a Certified Financial Planner (CFP®) practitioner. He is the director of tax strategies at Inspired Financial and leads their divorce consulting practice. He has provided continuing education programs for the Institute for Divorce Financial Analysts (IDFA), CalCPA, the Financial Planning Association (FPA), the National Association of Personal Financial Planners (NAPFA), and WealthCounsel.
“I’m a problem solver and pride myself on my ability to recognize tax nuances, evaluate complicated estate and tax planning issues and provide sensible easy-to-understand solutions that fit each unique client situation. 95% of financial planning has tax implications, and most wealth management firms do not have the estate and tax horsepower that we have at Inspired Financial.”
