Governor Newsom’s March 19, 2020 order for Californians to “stay-at-home” to slow the spread of COVID-19 was issued in order to protect the health and well-being of the public. The obvious result of this order is that we are all at home. A lot.
Even those essential people who continue to work outside of their homes are spending substantially less time out of the house for a number of reasons:
- Everything that is non-essential (i.e. fun) is closed,
- Those masks are really uncomfortable, and
- They don’t want to get or spread a deadly virus.
At a time when families are stuck at home together with nowhere else to go, it’s no surprise that so many married couples find themselves thinking about divorce. For those spouses who are really just sick of being cooped up, stressed about finances, and dealing with their kids being home ALL THE TIME, this post is not for you. You need to find a couple’s counselor who will meet with you and your spouse via Zoom, take up yoga, google ways to occupy your children, or pour yourself a glass of wine.
This post is for those spouses who are legitimately looking for a way out of their marriage, now.
Keeping two spouses who are ending their relationship at home, together, can create a powder-keg on the verge of exploding. Face it, if you have decided you are done with your marriage, chances are being ordered to stay at home with your spouse is the last thing you want. This is especially true if you have children, who are also at home unable to escape the tension and stress of a global pandemic and their parents’ break-up.
I have good news and bad news for you. The bad news is that the Public Health Officer of the County of Riverside has ordered that all non-essential functions of the court are suspended through (at least) May 1, 2020. More bad news: divorce petitions are not among the specific limited emergency matters the court is still hearing at this time.
So what options do you have when the courts are closed and no divorce petitions can be filed? In short, not many.
California law dictates that the filing party in a divorce action must wait at least six months from the date the other spouse is served with the paperwork before a divorce can be finalized. With the courts closed to non-emergency matters, it isn’t possible to file a Petition for Dissolution (divorce), let alone serve the paperwork on the other spouse. There is no secret loophole to circumvent the cold hard truth that this court closure will delay California divorces, but here is a list of things you can do now that will mitigate the impact the COVID-19 court closure has on your divorce.
1. Do something to memorialize the date you decided to end your marriage.
When you finally do file a Petition for Dissolution, you will have to tell the court what your ‘date of separation’ was. This date can have significant importance in California because any assets/debts accrued during the marriage (i.e. prior to the date of separation) is community property and any assets/debts accrued after the date of separation is your separate property. Oftentimes, both parties agree on the date their marriage ended, but even without the stay-at-home order, it can sometimes be tricky to prove the date of separation if one of the spouses did not take some action that outwardly manifested their decision to end the marriage. Many times a spouse moves out of the marital home or the spouses begin sleeping in separate bedrooms of their shared home, creating a valid argument that the day the parties’ physically separated is the date of separation. A physical separation is not dispositive of the date of separation, but it can be a pretty clear manifestation of a spouses’ intent to end the marital relationship.
A physical separation may not be in the cards during the stay-at-home order, so taking some other action that shows your intent to end your marriage should be taken to avoid a dispute down the road. I am not suggesting you post “I want a divorce” all over social media, and every couple is unique, as is every breakup. What is reasonable for one couple, may result in hostility in another. Some ways to show your intent to end your marriage and evidence your date of separation are taking off your wedding ring, sending a text message or email to your spouse confirming your intent to end the marriage, or even retaining a divorce attorney.
All of these actions can be used to show your date of separation and may help deter your spouse from raising the date of separation as a disputed issue in your divorce.
2. Get your financial documents organized.
One of the parts of the process clients going through a divorce tend to have problems with is getting all of the financial documents and information together so that they (or their attorney) can prepare and serve their preliminary declaration of disclosure. According to Family Code § 2104, both parties in a divorce are required to serve on one another their preliminary declaration of disclosure documents within 60 days of filing a petition. The disclosures must state “with sufficient particularity, that a person of reasonable and ordinary intelligence can ascertain, all of the following: The identity of all assets in which the declarant has or may have an interest and all liabilities for which the declarant is or may be liable, regardless of the characterization of the asset or liability as community, quasi-community, or separate… [and] The declarant’s percentage of ownership in each asset and percentage of obligation for each liability when property is not solely owned by one or both of the parties. The preliminary declaration may also set forth the declarant’s characterization of each asset or liability.” Along with the preliminary declaration of disclosure, both parties also have to serve a completed Income and Expense Declaration (FL-150), and a copy of each party’s two most recent tax returns.
Any good family law attorney also serves documentation to back up the assertions made in the disclosure document. This backup documentation consists of bank and credit card statements, title documents, and any other proof of the existence or value of community or separate property. Dividing community property requires a firm understanding of the extent of that property.
Compiling all of these tax documents, bank statements, credit card statements, title documents, mortgage statements, etc. can take time. Rather than waiting until your attorney gives you the directive to compile all of this, having everything ready to go will make your life easier and will probably move you to the top of your attorney’s stack of work to complete. We like working on the cooperative client’s files first because we know we won’t get held up waiting on them to get us information or documentation.
3. Work with your spouse to get agreements on as many issues as you can.
Even during the best of times, the family law cases with stipulations and agreements are completed faster, and get heard by the court first. Even cases where the parties and/or attorneys are able to reach a partial stipulation, leaving less for the court to decide, are heard before cases with parties who can’t stipulate to the color of the sky.
The family court is going to be over-loaded for quite some time once it re-opens, and getting a hearing or trial date for anything other than domestic violence and certain child custody issues is going to take months. Parties who are able to negotiate and come to an agreement to settle their divorce matter will probably be officially divorced (i.e. six months will have passed since the petition was served) before cases with uncooperative parties are even set for trial.
Having the right divorce attorney can help make sure your best interests are being represented during negotiations with your spouse and can ensure your agreement conforms to the requirements of the Family Code.
Working on these agreements now will make it that much easier to get your agreement submitted to the court, putting you closer to the front of the line.
Consult an Experienced Divorce Attorney to Obtain the Best Result