What If We Get Stuck Mid-Divorce?

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by Robin A. DeVito, Attorney at Law, Certified Family Law Specialist

One of the most frequently asked questions by clients considering using the Collaborative process for their divorce is this: What if we get stuck? What if there are issues that simply cannot be resolved during the Collaborative process? Does court then become our only option?

The Collaborative Divorce Process can help couples work through problems in a productive way toward a resolution.

The Collaborative Divorce Process can help couples work through problems in a productive way toward a resolution, even when there are difficult sticking points.

I recently concluded a case in which every issue was complicated. It was a high income, high asset case. We were able to successfully resolve all of the issues with the exception of the amount and duration of spousal support. Each party was set in his or her own opinion, and we were unable to reach an accord.

Our solution was to sign a separate mediation collaborative agreement. The agreement allowed the couple and the Collaborative team to bring in a neutral mediator to work with us. Both attorneys representing each spouse prepared briefs setting forth the position of their client. The full team participated in the mediation process. The financial expert was able to provide answers regarding the complicated financial situation surrounding the income and needs of the spouses. The coach was available to keep the mediation calm and focused on the issue before the mediator. This method of resolution enabled the parties to retain their team and all of the work generated by that team.

This hybrid method of resolution is an alternative to abandoning the Collaborative process. It builds upon the work process up to this point, and moves forward in a positive manner. As long as both spouses are willing to continue working on their issues, it is far preferable to take whatever time necessary and bring in people who can offer help and support, rather than giving up and taking a risk by letting a third party determine your future for you. Frequently the result is that no one ends up happy. They can even feel damaged in the process.

The mediation itself was conducted by the Honorable Thomas Murphy, a retired judge working with JAMS (formerly Judicial Arbitration and Mediation Services).

Choose Your Divorce Date

Attorney Carol Severance

by Carol Severance, Attorney at Law and Certified Family Law Specialist

You chose your wedding date and you and your spouse can choose your divorce date.

Some people think the day the Judge signs your Judgment is the day your marriage terminates. But that’s not always true.  Spouses have some control over that date.

Attorney Carol SeveranceA Judgment is an enforceable order that finalizes the terms of your divorce. It’s sometimes known as a Divorce Decree. But in your Judgment, spouses can choose the date to end their marriage with some guidelines:

  1.  In California, you have to wait at least six months from the date divorce papers are served on a spouse to terminate the marriage. But you and your spouse can pick a date that is after that six month period.
  2. You have to pick a date that allows the Judge enough time to sign your Judgment before the date you select. Your attorney can help you choose that date to allow enough time.

You don’t have to pick a date. If you decide it doesn’t matter what date the marriage is terminated, the Court will just fill in the date for you after the six month period.

Five reasons why you might want to choose your own date:

  1.  Getting health insurance when you need it. If you need to get health insurance, start your health insurance on the date you terminate the marriage.  So there’s no guessing. You will know exactly the date you need it.
  2. Avoid the wrong date. If your marriage ended on your birthday, or your child’s birthday, it would not be a date you would have chosen. So you can mutually pick a date to avoid this from happening. It may not be a reason in itself, but if you are choosing the date anyway, you can avoid meaningful dates you don’t want ruined.
  3. Tax purposes. Your marital filing status for tax purposes is determined on the last day of the year. If spouses wish to file married filing jointly, they should pick a date at the beginning of the following year to terminate the marriage, so they can file married for the current year.
  4. Social Security benefits. The ten year mark is significant for social security benefits. So if you’ve been married for nine years, you might choose a date after you have been married for ten years, just to be eligible for derivative social security benefits. This may not be beneficial to all spouses, but if it is, you should secure those benefits.
  5. Immigration process. People working through the legal immigration process may wish to delay the termination of the marriage until the process is complete.

You may even decide to decide later. This means you can submit a Judgment for a Judge to sign, but leave the date open to terminate the marriage. For example, your spouse is being treated by a doctor and does not wish to switch doctors. So the spouses choose to stay married until treatment is over. If you don’t know when the treatment is ending, you can agree to decide on that date later.

Be aware there may be downsides to delaying a termination of marriage, such as liability for your spouse’s debts and accidents, or lawsuits that may expose both spouses to liability. You also are unable to remarry until your marriage is terminated.  On the other hand, if one or both spouses may benefit , you can mutually choose your own date.

By working with your spouse in a collaborative process, you can work together with your attorneys to open up more options that may be beneficial to you. This is just one more way that collaborative divorce may work best for you and your spouse.