Introduction

The first thing you need to know is that the word "divorce" is technically incorrect. Marriages and registered domestic partnerships in California are dissolved, so what you get is a dissolution, not a divorce. Still, we’ve never heard anyone say, "I’m going to dissolve you!" so we use both "divorce" and "dissolution" in this book, but you can call it anything you like outside of court.

Registered domestic partners. Starting January 1, 2005, California marriage and divorce laws apply equally to registered domestic partners. However, domestic partnership is new and acquires its rules almost entirely by reference to existing marital laws that use terms like spouse, marriage, husband, wife, and so on, without adaptation to suit domestic partners. Likewise, in this book we ask domestic partners to read with the understanding that marital terms apply to them, too, unless clearly stated otherwise.

Over 150,000 divorces are filed in California each year. When this book came out in 1971, less than 1% were done without an attorney. Today, with the help of this book and our Divorce Helpline service, nearly 60% are now done without lawyers. Californians are saving at least half a billion dollars every year in unnecessary legal fees.

Can you do your own divorce? Should you?

Yes! You can! Since this book was first published, millions of Californians just like you have done their divorces without retaining lawyers, so you can almost certainly do it too.

Yes! You should do your own divorce. Most people would be better off if they did not retain an attorney unless they have a very clear reason for doing so. The legal process -- and the way attorneys work in it -- tends to cause trouble, raise the level of conflict and greatly increase your expense. We will tell you when you should get help and how to get help from an attorney without retaining him/her to take over your case. If you can work things out with your spouse without going to court, this book is all you’ll need.

What if things don’t go smoothly? If you have trouble with your spouse or partner, Book 2, How to Solve Divorce Problems, tells you how to solve problems in or out of court, with or without an attorney. You’ll learn how to talk to your spouse, negotiate a settlement, use legal action if necessary to move your case toward agreement, and how to defend yourself if your partner takes legal action.

What "do your own divorce" means

Too many people think doing their own divorce means filling out forms and maybe getting their spouse to sign an agreement. That’s a big mistake. Divorce is not about filling out forms; it is about thinking things out, solving problems, and making sound decisions. Likewise, if your case needs a settlement agreement, having it typed and signed is not the point. The value of an agreement is in the depth and detail with which you think things through, discuss issues, and work things out between you.

A lot of people are reluctant to think things through and make decisions, and they will do almost anything to avoid talking things over in detail with their partners. This is completely understandable, given the nature of divorce, but it is something you need to do if you don’t want to become a victim of divorce. If necessary, you can get help from an attorney-mediator to help you work out an agreement.

Doing your own divorce means that you do not retain an attorney -- no one should unless they have a clear reason for doing so, but that doesn’t mean you can’t get advice and help from an attorney. Doing your own divorce means that you take responsibility for your case, your decisions, your life. You find out what the rules and legal standards are, how they apply to your case, maybe you call up Divorce Helpline for some advice, then you decide what you want, what’s fair, how to deal with your spouse, what to do next. If your spouse is in the picture and cares what happens, it means having detailed discussions -- perhaps with help -- to reach a thoroughly negotiated agreement.

At Divorce Helpline, we help over 3,500 people each year and from them we have learned why people become victims of the legal system. People often feel they can’t deal with their divorces, their partners, themselves. They feel overwhelmed, so they want someone else to take over and just do it, make it go away. The attorney says, "I’ll take your case; I’ll take care of everything; I’ll get it done for you." It sounds good, but it isn’t true. In the end, even if you retain an attorney, you will be gathering the information, making the decisions and, very likely, negotiating the terms yourself. Most people do.

What it means to "retain" an attorney—and a better idea

It is okay to use an attorney, but most people should never retain one in their divorce unless there is a clear reason for doing so. Here’s why.

When you retain an attorney, the attorney takes professional responsibility to act in your behalf -- to represent you. You are literally handing over your power and authority to act.

Standards of professional conduct require any attorney who represents you -- even one with a good attitude -- to act in ways that will complicate your case and make it worse instead of better. Attorneys tend to take cases to court quickly, even when that is likely to cause upset and make settlement more difficult.

An attorney who represents you must go to great lengths to protect himself against later malpractice claims by his own client -- you. This means doing things for the attorney’s benefit instead of yours. California’s leading family law authority advises attorneys to either get clients to waive the attorney’s responsibility or else "do the absolute maximum" in every case. Doing the maximum may or may not help you but it will certainly raise the level of conflict and it will cost plenty.

Never forget that when you retain an attorney, the more trouble you have, the more money the attorney makes. That’s hardly an incentive to keep things simple.

Our system of justice is known as "the adversary system." It began in the middle ages when trial by combat meant that whoever survived was right, and that approach to justice forms the basis of our legal system today. The attorney works in our system as a combatant, but that is not what you want for solving family and personal problems. Law schools do not require courses in counseling or communications. They teach aggressive and defensive strategy and how to get the advantage in every case. Lawyers are taught to look for problems, not solutions.

It would be nice if you could get help from an experienced attorney with a good attitude who does not want to be retained, but few attorneys will take an interest in your case unless you retain them. That’s why we created Divorce Helpline, operated by Sherman, Williams, Lober and Thompson. This is the only law firm we know of that works exclusively on divorce settlement. Instead of "taking" your case, we serve as your guide and assistant. When you use Divorce Helpline, you are still doing your own divorce because the responsibility and control of the case stays in your hands. We guide you, help resolve problems, handle the red tape and paperwork, but your case doesn’t get out of control because you are in charge.

Advantages to doing your own divorce

Getting a good divorce

Studies show that active participation in your divorce is the single most important factor in getting a good divorce. "Good divorce" means such things as better compliance with agreements and orders after the divorce, less post-divorce conflict, less post-divorce litigation, more good will, and better co-parenting.

People who take an active role generally do much better emotionally and legally than those who try to avoid the work and responsibility for solving their divorce problems. This doesn’t mean you shouldn’t get help from an attorney -- it means you should be actively involved, become informed about the rules and make your own decisions. Put yourself in charge of your case; run your own life.

It’s much cheaper

Perhaps the most obvious advantage to doing your own divorce, even with the help of Divorce Helpline, is the savings in cost. When an attorney takes your case, the initial retainer could be anywhere from $750 to $5,000, but the retainer is only the beginning. The total cost will typically be a minimum of $2,000 to $5,000 for each party for even the simplest cases, and many attorneys admit that few of their cases stay simple! An informal survey in 1987 revealed that the average cost of a represented divorce in LA, Orange County and other urban areas is about $18,000 for each party. A contested case can cost hundreds of thousands on each side!

Keeping it simple

Most people start off with a case that is either fairly simple or one that could probably become simple if it is handled right. Such cases don’t usually stay simple after an attorney is retained. Divorces tend to be fairly sensitive and it doesn’t take much to stir them up, but lawyers have a way of making almost anything more complicated, more stirred up, worse instead of better. This is because of the way they are trained and the way the system works.

When one spouse or partner gets an attorney, the other is likely to get one too, and then the fun really begins. Two attorneys start off costing just double, but pretty soon they are writing letters, filing motions and doing standard attorney-type things, just like they were taught. Now we have a contested case, more fees and charges, and a couple of very upset spouses.

In the end, you will still have to negotiate your settlement with your spouse. Over 90% of all cases settle without trial, but when attorneys are retained, settlement usually comes after the parties are emotionally depleted and their bank accounts exhausted. Why go through all that?

The moral of this story is this: don’t retain an attorney. If you do it entirely by yourself, or with the help of Divorce Helpline, there’s a much better chance of keeping a simple case simple and of reaching a settlement much earlier.

How to start a divorce—Petitioners and Respondents

The Petitioner and the Respondent. Every divorce starts with a Petition. The Petitioner is the person who first files papers and gets the case started. The Respondent is the other party. A Response need not be filed, but it is a good idea, otherwise the inactive person has little say about when or how the divorce is completed, unless there is already a written agreement. In general, the more both parties participate, the better. After a Response is filed, the divorce can only be completed by written agreement or court trial. Agreement is better.

Equality. Once a Response is filed, Respondent has equal standing and there is no legal difference between the parties or their rights. Respondent can take any legal step in our books, just as Petitioner can. Where instructions indicate "Petitioner," Respondent can substitute "Respondent" and take the same action.

The Petition. To get your case started, you file a Petition and serve it on your spouse or partner. The only thing you need to know before you do this is that you want to start a divorce. The issues can all be sorted out and resolved later. On the other hand, it wouldn’t hurt to read through Part One before you start.

Advantages to serving the Petition:

• Starts the clock ticking on waiting periods.
• Automatic restraining orders take effect.
• Helps establish the date of separation.
• Has psychological value for Petitioner and tells Respondent a divorce is really going to happen.

Possible downside: serving papers can stir up conflict if you don’t properly prepare the Respondent.

Start smoothly. Unless your partner is an abuser/controller, you will probably want to start things off as nicely as possible. An abrupt start will probably increase conflict and an upset spouse is more likely to run to an attorney who will probably make your case more complicated. So, take some time to prepare your spouse and let him/her get used to the idea that a divorce is about to get under way. If you aren’t comfortable discussing things in person, use mail or email. Let your spouse know you are committed to working out a settlement that you can both agree to and live with. Unless you are under time pressure, don’t serve your Summons and Petition until your partner seems ready to receive the papers calmly.

The Response. A Response should be filed within 30 days of receiving the Summons and Petition, but can be filed any time before Petitioner declares the Respondent’s default (chapter 17). Filing a Response is not an aggressive act. In fact, it is usually a good idea for Respondent to take part in the action, especially if you have kids or property or debts to be divided. It is easy to do. The only disadvantages are Respondent’s filing fee of about $320(see chapter 7.2), and the possibility that you might have to file a questionnaire about your case in order to avoid a case conference hearing (see page 96).

There are numerous advantage to filing a Response. If there’s no Response, Respondent has little control over when and how the divorce is completed so the Respondent feels insecure. By filing, Respondent joins the case on an equal standing with Petitioner, so Respondent feels more a part of the process, more in the loop, more confident. Experience and studies show that the more Respondent participates, the better the divorce outcome is likely to be.

Three ways to get it done

After you file your Petition, there are only three ways you can make your way to the Judgment of Dissolution: 1) by default, 2) by contest, or 3) by written agreement.

The default divorce

In a default case, Respondent is served with the Petition but does nothing. No Response is filed, so the case is completed by default, without participation by Respondent. Default should be used only if you have little property or debts, no children, and no need for spousal or partner support, or in cases where Respondent is long gone or refuses to participate. If Respondent is around and cares what happens, it is better if a Response is filed.

The contested divorce

If a Response is filed, you can complete your divorce only by written agreement or by taking the case to court and having a judge decide issues that you can’t settle. Until there is an agreement, your case is technically considered to be contested. Whether or not there is a battle and a lot of legal activity depends on how you go about solving problems and reaching agreement. If you face problems reaching agreement, read Book 2, How to Solve Divorce Problems.

Divorce by settlement agreement

When the problems are all solved and you finally reach an agreement, one of the parties files a stipulation (chapter 12.7) and steps out. The case is now uncontested and sails through. If your spouse is in the picture and you have children, significant property or debts, or you need to arrange spousal support, then you should make every effort to reach a written agreement on all issues. Look what you gain:

• You can be certain exactly what the orders in the Judgment will be.
• You can complete your case by mail and almost certainly won’t have to go to court;
• Both parties participate and the Respondent can feel confident about letting the divorce go through without contest or representation because the terms of the judgment are all settled;
• It invariably leads to better relations with your ex-spouse or partner. Where there are children, this is extremely important; and,
• You are far more likely to get compliance with terms of the divorce after the judgment.

These advantages are so important that you should struggle long and hard to get an agreement. Chapter 6 discusses written agreements in detail. Book 2 tells you how to talk to your spouse, solve problems in or out of court, with or without legal action, and negotiate a settlement.

["MAP - How to get there from here" Flowchart] omitted for online sample chapter.

Solving divorce problems

To agree or not to agree, that is the question. This is the point that divides easy cases from difficult ones. Inability to agree is almost never a matter of law -- it is about the personalities of the parties or their lawyers. The main reason for a difficult divorce is that at least one person is terribly upset -- angry, frightened, distrustful -- and this is something that can usually be fixed with patience and understanding (see Book 2). However, if one spouse is a controller/abuser, the divorce can become just another way to continue the control/abuse, and the solution could be much more difficult.

If your case might turn into a fight, remember this: it is one thing to get an order against someone, but it is very much another thing to enforce that order. Especially in cases with children, a dissolution is a change in your relationship but not the end of it. You still have to deal with each other in the future because of the kids. Therefore, in more ways than one, it pays to work things out if you can do so fairly and honorably.

If you can’t agree on basic issues peacefully, wait a while to see if things settle down. Talk to the attorneys at the Divorce Helpline because they are expert at helping people solve problems and reach agreement. Ask your spouse to call, too. Be sure to read Nolo’s famous book, Divorce Solutions: How to Make Any Divorce Better, which shows you how to reduce conflict, settle disputes, and negotiate an agreement. For more serious conflict, you can turn to Book 2, How to Solve Divorce Problems, which shows you how to take your case to court to get things settled. Send a copy of Book 1 and Divorce Solutions: How to Make Any Divorce Better, to your spouse, then try to discuss some of the subjects in them. This can get you talking about practical, constructive things. Your spouse may misunderstand what a divorce is really about. Informed people are usually less frightened, emotional and irrational.

Mediation. If you are unable to work out an agreement on your own, you should try mediation, preferably with a family law attorney-mediator who will work with both parties to help you communicate, solve problems, break through impasse and settle things fairly. Mediation is not just for friendly divorces. Angry, conflicted couples are especially in need of mediation and stand to gain the most, particularly if they have children. Mediation can be very effective, even in cases with high conflict, when conducted by a good family law attorney-mediator like those at Divorce Helpline. Unlike many mediators, if the parties can’t even agree to try mediation, they are willing to contact the other side and try to arrange a meeting. They work at their offices in Sacramento, San Jose, San Francisco, Walnut Creek, Santa Cruz, Gilroy and Roseville. They can also do telephone mediation, which can be surprisingly effective and a lifesaver when parties can’t conveniently meet in one location in person.

When you should get some help

In some situations, you can get a lot of good from a little advice. In any case, you can get peace of mind from knowing you are doing things right. A few hundred dollars for advice may not seem unreasonable when weighed against the value of your property, debts, possible tax savings, all future support payments, and the importance of a good parenting plan. You can often save more than you spend.

If you have any one of the situations listed below in your case, you have good reason to get some expert advice. Weigh the cost of getting advice against what you stand to lose if you don’t.

Situations That Call For Professional Advice

Property

• The division of assets and debts is not equal.
• Home or real estate is being kept to sell later.
• A major asset is being divided or sold -- avoiding capital gains problems.
• You aren’t sure how to value some assets.
• Stock options: valuation, division, relationship to child and spousal (partner) support.
• Separate and community money was invested (mixed together) in a major asset.
• Pension from employment during marriage -- how to value; how to divide without penalty.
• Your estate is valuable so it’s worth taking extra care, getting good advice about it.
• One or both parties are self-employed owners of a business or professional practice.

Debts

• Lots of debts; how to protect yourself from debts of your spouse.
• Either party might declare bankruptcy.
• Joint credit card or other accounts not closed.

Your spouse (what to do about these problems is discussed in Book 2)

• You can’t agree about important issues.
• You can’t get information from your spouse about assets, debts, or income.
• You suspect your spouse might be hiding assets.
• Your spouse is threatening you, the children or the marital property.

Children

• Disagreement over parenting arrangements.
• One parent doesn’t want the other to move.
• Either parent earns over $30,000 -- consider saving on taxes by arranging for family support instead of child support.
• Special needs or health problems.

Spousal or partner support

• Marriage of 5 years or more.
• More than 20% difference in incomes.
• One spouse is not self-supporting.
• One spouse put the other through school or training.
• Preschool children.
• Special needs or health problems.

Personal

• With a good income and busy schedule, you would be better off if someone else did the paperwork.
• You want to be sure you’re doing the right thing and know things are being done right.
• You don’t understand your situation or what to do about it.
• You want help and suggestions for how to negotiate with your spouse.

Who can help? How much will it cost?

Friends and relatives are the least reliable sources of advice. Accept all the moral support you can get, but when they give you advice, just smile and say "Thank you," but do not take it seriously. Also be wary of "common knowledge." If you didn’t get it from this book or a family law specialist attorney in California, don’t trust it! Just because you like or trust someone doesn’t make them right.

Legal Document Assistants (paralegals)

Non-attorneys who offer legal forms services directly to the public are called Legal Document Assistants (LDAs) and must register unless working under the supervision of an attorney or non-profit organization. In theory, you tell an LDA what you want to say on which forms, then they type them up and handle the secretarial work. In practice, they provide more guidance. Rates are anywhere from $200 to $800 for doing divorce paperwork. We introduced this innovation in legal service in 1972 and it has since changed the face of the legal map.

No particular education or training is required to be an LDA, but the California Association of Legal Document Assistants (CALDA), offers its members training and promotes high standards in education, ethics and business practices. We are a Sustaining Member of CALDA. There are many CALDA members in our Directory at the back of this book, or you can find one near you at their website: www.calda.org.

LDAs can’t give you reliable legal advice, nor should you have one prepare your settlement agreement unless they are using Nolo’s DealMaker software or closely following the example in this book. Just as when hiring a lawyer or mechanic, be careful who you hire. Ask how long he/she has been in business and check references. If you know exactly what you want and have no legal questions and no problems, an experienced and reliable LDA is a good way to get your paperwork done.

For a list of divorce services near you, look in the back of this book or go to www.nolodivorce.com/dir

Court Facilitators

Every county has a Family Law Facilitator’s office where you can get free assistance, at least with support issues: determining the correct amount, understanding rules and forms, establishing a child support order and enforcing it. In many counties, that’s all they do, while in other counties they will help you with other aspects of your case. Most offer self-help seminars. We hear that the quality of service ranges from poor to excellent, mostly depending on the availability of additional funding. Demand far exceeds supply, so it takes a fair amount of time and persistence to actually get in and get help. If you have time to spare -- or no better option -- you should go see what help you can get. The more prepared you are, the more effective their help will be. Don’t forget to take all your notes and paperwork with you when you go in. For contact information, call your clerk’s office or go to www.nolodivorce.com/links.

Lawyers

Lawyers who specialize in divorce know a lot that could help you, but, because of the way the system works and the way lawyers work, they will almost certainly create unnecessary conflict and expense if you retain one. Unfortunately, getting information and advice from attorneys without retaining them can be tricky, because they don’t really want to help you help yourself; they want to be retained to do it all.

Attorneys will frequently do the first interview for a fairly small fee, but too often they spend that time convincing you that you need them to handle your case. Hourly rates can run from $100 to $450, but $175–350 per hour is normal. Most attorneys require a retainer -- $1,200 to $5,000 is typical -- but the amount doesn’t matter because the final bill can be much higher. Few attorneys will give you a definite maximum figure for the whole job. You are doing very well if you end up spending less than $2,500 per spouse on the simplest case. The average in LA and Orange counties when both spouses are represented is well over $18,000 per spouse!

Limited representation. A small but growing number of lawyers are offering representation limited to specific tasks or portions of your case while you keep overall responsibility. For example, only to draft your agreement, or only to appear in court if you are asked to show up there for some reason, or just to file and appear on one motion. We’ve heard that some county bar associations actively discourage attorneys from offering this sort of service, but, nonetheless, it is becoming more common. If you need a bit of service from a family law attorney, ask if they offer "limited representation" or "unbundling," the two names by which this is known. Or, call Divorce Helpline: we’ve been doing this sort of thing since 1990.

Collaborative divorce. Increasingly popular, in this approach, spouses and their attorneys pledge in writing not go to court or threaten to go to court; rather, they will use negotiation and mediation to reach a settlement. If there’s no settlement, the spouses will have to get different attorneys to take the case into litigation. Ideally, the collaborative team will include some other professionals, such as a divorce coach, family counselor, child specialist, accountant, or financial planner. Collaborative divorce has a good track record and, even with all the professional services you get, it will still cost less than a court battle.

Divorce Helpline

Divorce Helpline was created to change the way attorneys practice in divorce cases and to provide expert support for people who are doing their own divorces. Divorce Helpline is operated by the law offices of Sherman, Williams, Lober and Thompson. We will not litigate (go to court) because we don’t believe in it. Instead, our expert family law attorneys work exclusively as your guide and assistant, helping you plan, solve problems, and reach a fair settlement. We offer advice, mediation, arbitration and collaborative law, working by telephone throughout California, or at our offices in Sacramento, San Jose, San Francisco, Walnut Creek, Santa Cruz, Gilroy and Roseville. Divorce Helpline attorneys are trained in mediation and communication, and are good at solving problems. We answer any questions you might have, but can do a much better job for you when we do the whole case -- the paperwork and the settlement agreement -- as well as giving you advice. That way we have all the information, not just the small bit you are asking about. When we do the whole case we often find problems to solve and ways to save money that people don’t know to ask about. Our methods have proven to be highly successful and very affordable.

You can learn more about Divorce Helpline, including rates and services, in the CD that comes with this book, or at our Web site at www.divorcehelp.com, or call 800-359-7004.

Looking ahead

As mentioned in chapter 1.5 above, you can file your Petition and serve it at any time, assuming you have arranged for a smooth start by preparing your spouse or partner to receive it. You can then take some time to make decisions and work out the details about your property, support, and kids. We discuss the basic rules of these subjects in chapters 3 through 5, then in chapter 6 we show you how everything can be wrapped up in a settlement agreement once you get things worked out.

While you are reading through the next few chapters, at some point you should jump ahead to the Judgment (chapter 18) and take a look at the Judgment and the various attachments to the Judgment that are relevant to your case. Read the language so you understand the kinds of orders that are used in Judgments so you can understand where all this information you are reading about will end up. Then you’ll have a better idea of where you are going while reading about how to get there.