Avoid These Five Bits of Bad Advice When You Start Thinking About Divorce

Friends and loved ones routinely, though unintentionally, can give you bad or incorrect advice when the subject of divorce rears its ugly head. While those close to you are important to lean on in such a personal, uncertain and transitional time in your life, it is vital to speak with a skilled family law attorney to ensure that whatever path you go down, it is legally and factually correct. Doing so will help you avoid each of the following bits of “advice” that are not correct and can actually cause problems in any divorce proceeding.

1. “Don’t Be the One to File for Divorce First

In family law, the party who initiates the divorce proceeding by filing the divorce petition with the court is referred to as the “Petitioner.” The party who responds to the divorce is called the “Respondent.” The procedural advantage that the petitioner may find in the divorce proceeding is being able to choose the courthouse in which to file for dissolution; and, if the case goes to trial (less than 5% proceed to trial), the petitioner gets the first and last word in a trial.   

2. “Wait. The Inheritance Is Coming!

An inheritance is separate property. Delaying the filing of a divorce because a family member’s death is imminent, and the inheritance from that person may be significant, is usually pointless. Whether the inheritance is received during the marriage, or after the marriage, it will be and remains the separate property of the spouse who received the inheritance. The other spouse will not have any property rights to inherited money or assets.

3. “Your Spouse Cheated and Will Be Punished by the Divorce Court

California is a no-fault divorce state. This means that a spouse seeking a divorce does not need to provide a list of wrongs or prove that they have grounds for the divorce prior to initiating the divorce proceeding. As long as there is an irreconcilable difference between the spouses, a divorce proceeding can be started and concluded. Thus, although cheating is indeed a moral wrong that can cause irreparable emotional harm, the family law court will not consider the cheating spouse’s affair as a factor in determining custody of the children, distributing marital property or awarding support rights.

4. “It Will Be Over in Six Months or Less

In California, the granting of a divorce will take at least six months from the date that you as the petitioner officially let your spouse know about the divorce. There is a mandatory waiting period required by California law and no couple can be divorced (in other words, returned to single status) faster than six months. Even if the divorcing couple gets all of their paperwork completed and settles the terms of their divorce before the six month mark, each spouse’s return to “single status” will not be final until six months after the date the divorce proceeding commenced.

5. “He Started This, So He Should Pay Your Attorney’s Fees”

It doesn’t matter who decided they wanted the divorce. It doesn’t matter who filed for divorce first. Neither one of these notions has any bearing on attorney’s fees. In order to have your spouse pay for your attorney’s fees, you must provide evidence that proves your spouse has the ability to pay those fees, and that you need this contribution toward your attorney’s fees and costs. Merely stating that “they started it” will not persuade the judge to award you attorney’s fees from your spouse.

Don’t let bad advice and urban legends like the five examples here have a negative impact on your divorce.  Instead, seek legal advice early to move efficiently and strategically forward.

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