Is There Any Advantage to “Striking First” in a Divorce?

Frequently, I am asked whether it is best to strike first, that is, serve the opposition, or wait to be served. Clients want to know whether there is any tactical advantage, and whether the court will view them in any more favorable light. They want to know if there is any savings in holding off and waiting to be served. Unlike chess or martial arts where it is often said that waiting for your opponent to strike first is the best move, in family law, while there is no real advantage in terms of being given the moniker "petitioner" or "respondent," there are several other considerations to take into account—in particular, two issues that are relevant to everyone these days: time and money.

Choosing the proper venue can actually save you time, and consequently money. To illustrate, some courts are grossly understaffed with maybe one or two judges hearing 20-30 cases on a daily basis. If you are in a smaller venue, say Burbank, as opposed to downtown Los Angeles, you might find that even the best intentioned court simply does not have time to get to your matter, resulting in your worst nightmare, a continuance. Yes dear friends, continuances, which are often blamed on attorneys trying to delay things, are probably more likely the result of the court simply running out of time.

Continuances can be quite disturbing for family law litigants particularly when there are issues of extreme moment, such as in child custody disputes, hearings related to child or spousal support, or, where pertinent discovery issues prevail and you need to get orders for attorney fees and costs in order to pursue your rights. If you are in a venue which is generally well staffed (due to budgetary cutbacks and the horrific California state deficit the notion of a “well-staffed courthouse” is becoming a pipe dream) then you are certainly more likely to get your case heard in an expeditious fashion.

Venue selection is also important in terms of your and your lawyer’s commute to the courthouse. If you have an attorney you particularly like and want to hire that counsel, then it is best to know that his/her office is reasonably proximate to the courthouse that you contemplate using. That will also save you time and money. If your attorney is known to the court as someone who is prepared and competent, then that is also to your benefit. Of course the cynical out there may deliberately try and select the venue that is least suitable to their soon to be divorced ex-spouse, and I will not comment on that, other than to say, it does happen. 

What can be gleaned from all of the above is the following: if you are sure that you want to get divorced or if you are certain that you have issues that must be addressed by the court (child custody, child support, spousal support, restraining orders, discovery, etc.) then very little is really to be gained by waiting to see if the other side wants to file. If you are uncertain about what you would like to do, then you shouldn't be filing in the first place. While the old saying goes he who laughs last, laughs best, in family law it could be modified to he who files first, picks home.

If you would like to discuss your case with an experienced divorce lawyer in Glendale or Burbank, contact the Law Offices of Dabbah & Haddad, APC.

What Happens to the Family Home in a Divorce?

"Mi casa es su casa." Those of us familiar with basic Spanish immediately recognize that this endearing greeting is typically made to welcome visitors upon entering Latin homes. This cultural expression of warmth basically translates to "My house is your house." In family law, however, this expression is filled with legal ramifications; typically, during the end days of a marriage where divorce seems likely. A family home carries with it the emotions of its inhabitants, their joys, sorrows, elations, and tragedies. For some, breaking the family home umbilical cord, as it were, is too difficult. For others, their entire success and achievement is tied into their family home as a symbol of how they have thrived.

"Who gets the family home?" "Will I keep my home?" "What can you do to protect my home?” and so on and so forth, are the typical statements and questions posed to us family law practitioners. Essentially, all of these questions are really asking, "How will my property be distributed?" Sometimes it is fairly easy to determine what will happen to the family home. For instance, where husband and wife have bought the property after marriage, as a married couple, and they are both on the paperwork (deed, and bank mortgage note), the general rule will be that the soon to be divorced couple will share a 50/50 interest in the family home. Moreover, whatever equity remains in the family home, will be shared equally.

At this time, I can hear you all snickering, "Equity? Is he serious? Has he not heard of the housing crisis, subprime loans, and painful ARMS (no not your upper extremities, but those pesky adjustable rate mortgages). Doesn't he know that I refinanced and pulled out so much from my home that there is nothing left?” All right, to all of you shaking your head about equity, I hear you. Let's just suppose, for the sake of this discussion, that there is still equity remaining, or that you were one of those intelligent people who did not build a Buckingham Palace style estate, but actually had a home within your budget, with a reasonable mortgage, and that you did not consider your family home to be an insatiable cash cow.

In other words, you have equity. Now, however, you wonder what is going to happen to that equity? We have already said that the case where you and your ex have purchased the home together, the call is fairly simple. But what if you purchased the home prior to marriage, on your own, and you are the only one on title? Your initial answer might be something to the effect, "Well duh, it’s mine, and mine alone. My ex cannot claim it. I am the one bought it many years before I even met him/her." Are you correct? Not necessarily. What if you are the partner in the marriage who has been told by your ex "Don't bother coming after my home. You are not on title and you have absolutely no right to it." Is your ex correct? Not really.

Family Law courts are courts of equity (fairness). They try and do things with that fundamental fairness concept in mind. Fairness can take into account the value the community (meaning husband and wife) have had in reducing the mortgage, even if the property was clearly purchased prior to marriage. There are interesting family law cases which give rise to complicated formulas used to access what your monetary interest in a home you never purchased might be, simply by virtue of the fact that a portion of the mortgage was paid during the time you and your husband/wife were married.

Therefore, simply not being on title, or not being on bank loan documents, should not necessarily dissuade you from thinking you do not have a right to a portion of the equity in the family home. This can be an important issue to consider particularly if there are monetary issues in your case, which will require negotiation and leverage on your part. It is certainly worth your while to present your case for the family home to an attorney before naively or innocently signing away your rights to something that may have monetary value to you. Rest assured that the person owning the property is most likely well aware of your rights (whatever they are letting on to you) as they have more to lose.

While your entitlement to the family home may not exactly turn into "my home is your home," it might turn into something akin to "your home is your home, however, don't forget about me." Should you be interested in discussing your individual situation, please do not hesitate to contact our offices to schedule a consultation with one of our Glendale divorce attorneys.

The Potential Consequences of Seeking an "Early Divorce"

"I just want to be done with it," is often the first thing I will hear from prospective and current divorce clients. Typically, they want to know how soon they can get divorced. Maybe they feel that something magical will happen when they utter those anticipated words, "I am single again." Perhaps they have a partner whom they have promised to marry as soon as they legally can, or maybe they are seeking rapid closure—perhaps to buy a home, move out of state or change careers. All of the reasons stated above have their own merits, but it is equally important that the eager to be single person consider what the court will require to give you your early divorce. By “early divorce” I am referring to a divorce in advance of the parties resolving all remaining issues in their divorce.

By way of background information, typically the earliest one can even be eligible to be divorced is six months after the other side, the party served with the divorce papers, has acknowledged service of process (assuming they have timely done so and are not in default or subject to a potential default judgment). The problem is that some people believe that once they are legally divorced that they do not have any obligations to their ex-spouse, other than the child and/or spousal support obligations. This is not necessarily true. There are many things that the court will require you to maintain in place if you are the party seeking the early bifurcation (that is, divorce and restoration of single status), particularly if you are the bread winner or higher wage earner.

One common issue arises with regard to maintaining medical insurance for your spouse, who without your coverage, would be left with no medical insurance. The issue arises because once you are divorced and single status restored, most medical insurance plans, that is, the typical group health care plan, will not allow you to continue to cover someone to whom you are not legally married. So the early divorce seeker will be required to do something about this problem. Moreover, your soon to be ex-spouse will not be too eager to agree to an early bifurcation of marriage because of the insurance issue (or various other reasons for that matter), which puts you in the position of having to bring a Motion for Bifurcation of Marriage hearing, where each side makes his and her case.

Experienced practitioners opposing you will want some sort of assurance that their client will continue to be covered for medical insurance to give you your bifurcation. They may want you to provide a private plan (which is expensive) or finance COBRA (which allows your soon to be ex-spouse to stay on your group health care plan for a limited period of time while he or she explores private insurance). Generally speaking, both options are more expensive than simply allowing your ex-spouse to remain on the policy of group health care. Family Code Section 2337 requires that the insurance issue be addressed and maintained as a precondition for bifurcation.

There are a host of other concerns and ramifications to seeking an early divorce. While none of them alone should dissuade someone motivated from getting an early divorce from so doing, the issues are certainly something that you should discuss with your attorney so that you can make an informed decision. Your lawyer will know that you just want to be done with it, but there are always degrees of done, and unlike a good steak, in this instance it is better to be, pardon the expression, “well done.” 

If you have questions about seeking an early divorce, or the consequences of doing so, contact the Law Offices of Dabbah & Haddad, APC.