Selling your house during divorce?

Selling your house during divorce is rarely easy.

Making the decision to sell your house during divorce can be a highway of despair.

Unless housing values soared and you can’t wait to cash out your equity and set flight. Then you may be popping a cork.

Happy or sad, selling your house is a serious undertaking so I’d like to share some practical suggestions that may make your decision making process easier.

1. Know your real bottom line. Real estate agents may talk a big game when asked for opinions on your house’s value.

Music to your ears?

Maybe but you won’t be certain until you know the real bottom line.

The net dollars and cents.

How much will you have left over if you keep the house?

How much will you receive if you sell the house?

You want to know precisly and objectively.

Clear and concise spreadsheets or reports are preferred.

Your bottom line in writing to revisit often gives you the best opportunity to make sound financial decisions.

2. Hire your own financial adviser or CPA to run and rerun numbers to calculate your real bottom line.

3. Get the answers to these questions if you want to keep your home.

  • Are you qualified to assume or refinance the mortgage?
  • Will you deplete your retirement, savings, investments, and/or emergency account if you kept the house?
  • Will your monthly income from all sources excluding child support and modifiable spousal support, cover all of your housing and living expenses if you kept the house.
  • Do you have funds that may be easily liquidated to cover all of your housing and living costs for a minimum of one year in case of emergency?
  • Is your work history long and stable?
  • Could you be easily and quickly reemployed if you unexpectedly lost your job?
  • Do you have/can you get disability insurance sufficient to cover your costs if you keep the house and were injured? If so, how long would you receive disability?

Those are just a few of the many practical issues to consider, there are countless more. I’ll continue to update this list as time permits.

If you’d like my help while making your decisions about selling the house during divorce, please fill out this confidential form to determine how I might serve you.

 

Is your spouse avoiding service?

spouse avoiding service

It isn’t uncommon for spouses to avoid service of the Petition for Dissolution of Marriage, Legal Separation or Domestic Partnership, Summons and/or Declaration Under Uniform Child Jurisdiction and Enforcement Act.

Some hide in their houses and won’t answer the door when the process server knocks. Others won’t give their spouses their new addresses or instruct receptionists at work to say “He/she’s not here.”

The reasons for avoiding service are varied but the most common are to prevent the commencement of the thirty day period in which the Respondent (spouse served) is required to file a Response; and to avoid the Temporary Restraining Orders set forth in the Summons, which restrict divorcing parties from doing things like changing estate planning documents or beneficiaries or canceling insurance policies.

In California it doesn’t make sense to dodge service – all it does is prolong the inevitable.

California is a no-fault divorce state so a divorce will proceed if one spouse wants the divorce. And, community property stops accruing after the legal date of separation, which occurs on the day one spouse decides the marriage is irretrievably broken as a result of irreconcilable differences.

Notwithstanding, men and women everywhere continue to dodge service, which can be a problem.

Proper service is necessary because it places the party to a lawsuit (i.e. divorce) on notice that legal action is being taken against him/her and he/she must respond.

Service also gives the court “personal jurisdiction” over people or the power to make decisions about that person and his/her assets.

So what can you do if your spouse is avoiding service, on active military duty and stationed overseas or completely MIA?

The acceptable methods for serving divorce documents for a lawsuit filed in California are set forth in:

  1. California Code of Civil Procedure sections 415.10 – 415.95
  2. California Rules of Court Rules 5.68 and 5.72
  3. The Local Rules for each County in California

Legally speaking, there are a number of service options available and a good discussion of those options on the California Court’s website. Some of your options include:

  1. Personal service
  2. Service by mail
  3. Mail with a Notice and Acknowledgment of Receipt
  4. Service by publication
  5. If your spouse is on active duty overseas or deployed at a time of war, you may ask the military authorities to serve documents. This can be done through the “duty post” or the Legal Assistance office on the military base. But the duty post can refuse service and a federal law called the Service Member’s Civil Relief Act of 2003 can put a stay on divorce proceedings until sixty days after your spouse returns stateside.

If your spouse is avoiding service here are a few practical options my clients and I used over the years to complete service.

  1. Hire a professional service company (I used Onelegal) to stake out your spouse’s home or business
  2. If you’re still on speaking terms, speak to your spouse about his/her dodging and ask if he/she will cooperate so you can get on with it
  3. Have a mutual friend serve your spouse
  4. Schedule service for a time when you know you are seeing your spouse like couple’s therapy, a school event, family gathering

Are there ways to make the service process easier?

Two options come to mind.

The first option is to refrain from telling your spouse you are filing for divorce and surprise him or her with service.

Will a surprise attack incite your spouse and make your divorce process worse? It could. It ultimately depends on your spouse’s temperament.

Angry or reactive spouses easily consider an ambushed service as a declaration of war. So you need to assess the risks of using this approach and be prepared for the possible consequences if you do.

Others are scared straight by a surprise service and fully engage in the divorce process.

The second option is to amicably discuss divorce with your spouse and together, decide who will file the Petition and Summons, who will respond and when the court documents will be exchanged and Notices and Acknowledgements of Receipt signed. This option is a good one for couples who agree or understand that their divorce is inevitable and its easier to work cooperatively to that end.

If none of your service attempts are successful or your spouse is MIA, speak to a family law attorney who has experience processing default divorces to be certain yours is properly filed and finalized.

If you are self represented (doing it yourself), the California Courts’ website has a list of the forms to be filed and steps to be taken to obtain a default judgment.

You also will find a very detailed discussion on obtaining a default judgment in The Rutter Group’s California Practice Guide Family Law by Hogoboom and King, which is available in most major law libraries.

Can you fire a divorce lawyer? Should you?

I’ve met men and women who paid $10,000s to $100,000s to attorneys they weren’t happy with.

Some stayed with their lawyers because they were scared to leave or worried that changing lawyers would drive up costs and delay cases.

Others kept thinking things would get better, but they didn’t, which is par for the course.

To these peoples’ credit, changing lawyers midstream means paying a new retainer and fees for the time it takes the new attorney to get up to speed on a case. But this doesn’t mean the overall costs of divorce will go up or that it will significantly impact the time to complete.

In fact, replacing a bad attorney can improve the bottom line with better outcomes, decreased expenses and faster resolutions.

How do you know if you should fire your attorney?

As a general rule of thumb the best way to determine if you should fire your attorney is to speak with two or three other good family lawyers (second opinions) and get the answers to these two questions:

1. Are the new attorneys’ assessments and opinions of my case the same or very similar to those of my current attorney?

2. If I continue to work with my current attorney, how will I feel after divorce if I am disappointed by the outcome?

Bear in mind that you must give the new attorneys accurate descriptions of your case and sufficient time to understand your circumstances to form a viable opinion.

If your funds are limited, I recommend hiring the best attorney you can afford to give you a second opinion, which should improve your chances of receiving sound advice.

I caution you, if you use a series of free consultations with a number of attorneys in the hopes of getting the information you need without paying for it, you’ll likely get conflicting information about your case – which will confuse you.

When should you fire your attorney?

If you’re justifiably dissatisfied with your attorney, firing as soon as possible is usually best. I say usually because firing your attorney when hearings, trials, conferences, depositions or the like are scheduled in the immediate future ,can create insurmountable problems and negative consequences.

If you find yourself wanting to fire your attorney just days or weeks before an important event in your case, you will need to decide if you should fire your attorney before or after the event.

Firing your attorney before an event like a hearing, mandatory court settlement conference, etc. could mean you won’t have representation at the hearing – you’ll be addressing the the court on your own. And you may not do a thorough job, which could lead to disappointing or devastating results.

Waiting to fire your attorney after the important event may be just as risky or worse than firing him/her before the event. If the attorney botches the event you could pay the price indefinitely.

Yes, between a rock and a hard place.

So, should you fire your attorney?

That is a question only you can answer.

But if you’re getting divorced, legally separated or dissolving a domestic partnership in California, I may be able to help. Please fill out the form below to learn how.

Where do you file your military divorce?

Divorce in the military

If your spouse is in the military, there may be three different states where you can file your “military divorce”.

They are your husband’s state of legal residency, your state of legal residency and the state where your spouse is stationed.

The ability to choose between three different states is usually an enviable option to have.

It allows you to choose the state with the best divorce laws and procedures, which can make a huge difference in the outcome of your case and the time required to finish it.

There are states that have vague spousal support laws, which could mean no support or a wild guess about support.

And there are states with clear spousal support laws, that could ensure you received some support when you could receive nothing in another.

As an example, I consulted with a client who had initiated a divorce in a state with very vague spousal support laws. My client had been married for two years to a man who injured himself shortly before their wedding, never worked a day during their marriage and bankrupted her by using joint credit cards.

Shortly before she contacted me a judge ordered my client to pay monthly support for an indefinite period of time and her husband’s health insurance premiums. After the hearing she consulted with an attorney who told her she should just agree to support her husband till his death or remarriage because that’s how things rolled in that state and court.

Thankfully a few months later my client found me and I quickly learned that neither she nor her husband were living in the state where their divorce had been filed.

And it turned out that my client’s new state of residency had very clearly established spousal support laws denying spousal support to men and/or in cases where the marriage lasted less than five years.

The new venue gave my client a get out of jail free card.

We found an attorney to file the motion necessary to move the divorce from one state to the other and terminate husband’s spousal support under the new applicable laws.

So, if you or your spouse are active military with different states of residency, carefully research the state laws in each state to determine the best venue for your case.

Pay close attention to each state’s procedural requirements for getting divorced (some state’s require a one year separation before a divorce action can be commenced) and divorce laws as they apply to each of the issues you may have to resolve in your case like, spousal support, child custody and the division/allocation of property.

Also carefully investigate any military technicalities that could effect the outcome of your divorce as a result of your choice of venue (i.e. retired pay).

How to stop a California divorce

If you want to reconcile or remain married and your spouse doesn’t, unfortunately you can’t stop the legal process in California.

Under California’s no-fault family laws, if one spouse wants a divorce the court must proceed regardless of the spouse’s opinion or wishes to remain married.

If you and your spouse have reconciled and you would like to stop your legal proceedings in California, you may be able to dismiss your case unilaterally (without your spouse’s consent) or jointly with your husband’s agreement.

Generally speaking, this is how it works:

If you filed a Petition and your spouse hasn’t been served or responded to your Petition, you can fill out the appropriate court forms and have your case dismissed.

If your spouse responded to your Petition by filing a Response or making an appearance in court, you will both have to agree to dismiss your case, which ordinarily may be done unless a Judgment terminating  your marital status or domestic partnership has already been entered.

If a California family law judge has already ordered your marital status terminated, a reconciliation will not negate the judge’s order.

So if you reconciled and wish to be married to your former spouse, you’ll need to get legally remarried.

If you bifurcated the termination of your marital status without resolving all of the legal issues in your case like the division of property, spousal support, child support, custody and the like, you will need to determine how to resolve those issues in light of your reconciliation. I recommend speaking with an attorney to assess the status of the issues in your pending divorce.

If you would like to speak with me about these or similar issues, please complete the interest form below and my assistant will contact you after I receive and review your information.