“What can I expect in a divorce” is the question often asked when the marital relationship has broken down and separation is inevitable. Perhaps it is the question that concerns you the most.
You may have spoken with family and friends and taken their divorce advice. You may have even consulted with an attorney or two and received general information about the divorce process. We know you’ve looked online because you’re sitting behind a computer, phone or tablet and reading this right now.
First, thanks for coming here and reading. We hope you find this article informative. We have written it for California husbands, wives and parents who are about to go through a divorce and don’t know what they can or should expect. Please don’t take it as legal advice. There is no such thing within any article. Every case and its facts are specific and unique and no divorce attorney worth a darn is going to give you advice until he or she is familiar with your specific facts.
So where are you now in the divorce process? Have you separated? Are you about to? Has the divorce already started? We know it can get confusing and, at times, overwhelming, especially when dealing with the complex emotions divorce can cause. That is exactly why we wrote this article for you. There is almost a cryptic quality to divorce where some husbands and wives step into family court not sure how they got to this point, never expecting this could happen to them and are just as unsure where they are going.
As we like to do, let us help demystify the process and what you can and should expect when divorcing.
What can I expect in a divorce with kids?
Children are great. They make our lives so blessed and also so complicated. As much as we would do anything for our kids, the reality is the children also complicate divorce, especially in contested or complex California child custody matters.
So what can you expect when you’re going through a divorce and have children?
Expectations with two good parents focused on the children’s best interest
This one is easy. If you and your spouse are both good parents and prioritize the children’s best interests above the conflicts with each other, you have already taken massive steps toward resolution of your child custody case.
In such a circumstance, you should expect that after filing for divorce, communication between you two, ideally with each of you having skilled and experienced child custody lawyers, should be efficient and no-nonsense. Please don’t try to handle such issues on your own. Even contested child custody cases can result in unintended consequences if you do not take care drafting the settlement agreement which ultimately becomes the court order.
In the communication between each of your lawyers, you should expect that the issue of joint legal custody will be worked out very quickly. The issue of joint physical custody will also be a no-brainer so long as each of you agree that you will have frequent and regular contact with the children.
This does not have to always be a 50-50 arrangement although that is the preferred custody arrangement when dealing with two other parents who have at or about equal time to spend with the children
Your respective lawyers will also, with each of your help, work out a holiday, special day and vacation schedule so that each of you can have a predictable and efficient schedule going forward.
The only place we’ve seen parents get into trouble is to leave the schedule open-ended and subject to mutual agreement on too many issues. Please don’t misunderstand us as stating that you need every detail of a physical custody and parenting time worked out ahead of time. That is not what we are saying. Instead, it is best to have the regular parenting time and the bulk of the holiday and vacation time worked out to avoid (1) misunderstandings later on and (2) potential gamesmanship just in case, no matter how unlikely, your relationship with the other parent doesn’t go as smoothly over the long run or even hits little bumps along the way.
There is a lot of value in predictability of the schedule because predictability fosters stability.
But not every case is going to be an uncontested one or one where the parents will communicate and co-parent.
What can I expect in a divorce with an uncooperative or unreasonable parent?
Such cases don’t always go to court but they do start in that direction. When you have a contested child custody case that involves an unreasonable parent, you should expect the necessity of filing requests for child custody orders immediately.
The working parent
If you are the working spouse who is trying to obtain a reasonable custody order with the children, the worst thing you could possibly do is to wait. The longer the children spend with the unreasonable parent and that parent keeps the children away from you by limiting your time with them, the more difficult it may be to get frequent and regular contact with your kids.
You should expect the need to show the other parent that you are serious about your children and you are willing to put the case in the hands of the judge to make the decision.
You should expect there will be a cost associated with this but your children are well worth it, especially if you intend to have any type of long-term peace when dealing with this unreasonable parent.
Once you have filed the child custody paperwork, you should expect that evidence will need to be gathered that you are capable and willing to care for the children.
For the working parent, this may not be always 50-50, especially if the other parent does not work. However, even in a situation where you cannot handle an exactly equal timeshare, you should not be relegated to non-overnight visitation or only an every other weekend schedule.
Good litigation tactics and good negotiation can bridge the gap even with an unreasonable parent, so long as you’re not dealing with a narcissist or a sociopath, which we will discuss more below.
What should the non-working, primary caretaker of the children expect in a custody case?
Traditionally, this parent is going to be the stay-at-home mom. Stay-at-home moms have special challenges when they are going through a divorce. One of them is dealing with a parent who wishes to use the children as leverage for numerous purposes including, most commonly, child support.
Unfortunately, California law has still not evolved and still directly correlates the amount of child support to the parenting time as part of guideline support. The wisdom of this and whether there is a better way is a discussion best left for another article. But, since it continues to be a reality today, a stay-at-home parent must be aware of what to expect when litigating a child custody case like this.
Lies are the most common strategy used by a parent who wishes to use the children as leverage in the child support case.
The lies will include exaggerating the amount of time that parent actually spent with the children during the marriage or relationship, misrepresentations regarding the other parent’s care for the children, of which we have seen many types, and unreasonable positions. A common one is demanding an equal timeshare when the parent knows darn well that they cannot handle that volume of time, they will likely just passed the children off to their family or friends to care for them just so they can artificially inflate their time and unreasonably drive up the costs of litigation thinking that they can outspend the other parent.
Fathers, in enforcing their rights, make that last mistake far too many times, especially when represented by overaggressive lawyers who sell them that they have to behave unreasonably to enforce their father’s rights.
You should expect court intervention not just about the custody issues but also about the attorney fees you will need to litigate the case properly.
You see, your greatest advantage is the fact that the other parent makes significantly more money than you and is in a better financial position then you do for the litigation.
You may consider that a weakness but, if used properly, it doesn’t have to be. If the other parent unreasonably causes child custody litigation in the divorce case and forces you to have to engage in actual litigation, California Family Code 2030 and 2032 specifically gives you the right to seek attorneys fees against that parent based on your need and that parent’s ability to pay.
In addition, you have at your disposal Family Code section 271 which sanctions an unreasonable spouse or parent for taking unreasonable positions in the case, failing to reasonably compromise and causing unnecessary litigation of issues.
Do not give in to the bullying and deception that often permeate these types of cases.
Contested child custody cases sometimes have to go in front of a judge to get a fair result. Our family law firm has done this on many cases to bring a fair conclusion and peace to the good parent’s life.
What can I expect in a divorce against a self employed spouse?
The major difference between divorcing a self-employed spouse and one that is a W-2 employee, is that a self-employed spouse has a greater opportunity to hide income or fail to accurately report it.
What you should expect when divorcing a self-employed spouse is more due diligence in evaluating his or her income. This typically involves the retention of a forensic accountant and evaluation of the self-employed spouse’s controllable cash flow and income.
The word controllable cash flow can be confusing and it is sometimes a lazy way of stating what the real analysis is, which is the income available for support.
You should expect that several options will be in front of you when divorcing a self-employed spouse.
- You will potentially have the option to hire a jointly agreed upon forensic accountant to do the evaluation of the self-employed spouse’s income and possibly even the business valuation. This is not our preferred choice unless the income that you’re dealing with is not a high one and the business does not have a large value.
- Each of you can retain your own respective forensic CPA. Under such a circumstance, the spouse who is not self-employed will need the cooperation of the self-employed spouse. Do not expect that that will always be forthcoming and in situations that it is not, formal written discovery may be necessary to obtain information and, if the self-employed spouse continues to be uncooperative, court intervention is not uncommon.
- Once the income analysis is completed, your respective divorce lawyers can then communicate regarding the calculation of support which includes, in child support cases, the guideline amount as required by California law and, in spousal support cases, either the computer program for temporary support or an evaluation of the Family Code 4320 factors for the permanent spousal support number.
What should I expect if I am the self-employed spouse going through the divorce?
There isn’t a lot of difference in what we wrote.
When you are the self-employed spouse, you will likely still have to put the business through a forensic accounting to determine both cash flow as well as a valuation of the business. The two do often go hand in hand.
We discuss the valuation of the business process, below.
The thing you have to be most careful if you are the self-employed spouse is to ensure that the information used for support purposes is accurate. If you are like most spouses who run your own business, you probably don’t completely understand the financial ins and outs of it and every accounting and bookkeeping aspect of it. That is why you have a bookkeeper or CPA to help you right?
If you run your business with a clean set of books, this should be easy.
If however you are operating the business and running some personal expenses through the company, correctly deciphering which ones should be added back can be a time-consuming and expensive process.
The experience of a divorce lawyer as well a forensic accountant is very helpful here.
Do not be surprised if your spouse exaggerates such things and tries to claim that you make a lot more money than you actually do.
What should I expect in a divorce that involves a home or a business?
Many couples that go through a divorce are homeowners. The first issue is whether one spouse will move out of the house during the divorce. They also don’t know what to expect because there’s confusion as to whether or not the house will be given to one spouse or the other or sold. These issues can get even more complicated when dealing with a house that does not have significant Equity, if any equity at all, and each spouse still want the house.
There are no hard and fast rules regarding a divorce that involves a home. Simply put, the court can order the house sold if neither parent can afford to buy the other parent out or order a buyout if one parent really wants the house.
You should not expect that the court will deal with such issues at the outset of the case. Unless you and your spouse can come to an agreement regarding the disposition of the house, courts do not deal with property issues, absent emergencies and other limited circumstances, until the end of the divorce case. Temporary orders are really designed for custody, support and attorney sees. However, there are exceptions and one of the more common ones is when the house is under threat of default or foreclosure.
Whether the court deals with it at the end or whether you come to a settlement, you should expect that you and your spouse will need to negotiate who gets the house or, if you do not agree, who intends to buy the other one out.
If the house is going to be sold, it’s usually pretty simple. Unless there are Family Code 2640 reimbursement claims that result from a separate contribution toward the family residence or there are other separate property issues related to the house, the division of the house upon sale simply involves escrow, the proceeds set aside for the parents and a division of those proceeds.
In cases that involve a buyout, whether you are the one buying out or the one being bought out, special care must be taken to ensure that the parent being bought out is removed from title as well as the loan obligation.
This can happen in many ways and is beyond the scope of this article although a discussion with our experienced family law attorneys will go a long way in helping you explore your options and which one makes the most amount of sense for you.
The business valuation in the divorce
What can you expect when dividing a business in a divorce? The issue becomes similar to that of dealing with the self-employed spouse. It is always our recommendation that a spouse who is being bought out of a business or a spouse who is buying the other one out retain a forensic accountant to do a business valuation.
The necessity of the forensic accountant is simply to determine what the business is worth and what a proper buyout amount should be.
The issue becomes complicated when dealing with a business that may not be entirely community property.
You should expect that the forensic accountant will need information provided to him or her so that the accountant can properly evaluate the business and this information includes the business’ profit and loss statements, balance sheets, internal financial documents, bank statements and related documents. If a spouse who owns the business is not cooperative, you should expect court intervention will be necessary.
If you are the spouse who is a business owner, in addition to the need for a forensic CPA, you probably want to protect the business during the divorce. In addition, you should look at the issue of whether or not it makes sense to buy your spouse out for the maximum 50% value of the community if you are also going to be paying spousal support. Think of it this way – if you’re going to be paying spouses support to your soon-to-be ex spouse, you’re going to be drawing money away from the profits of the business to do so. Does it make financial sense to do that and also pay 50% of the business’ net worth at the same time?
Fortunately, California law has recognized that this form of double dipping is not always fair and special consideration should be taken in such situations. That doesn’t mean you can completely avoid or terminate support but it may mean that you can mitigate the support or mitigate the buyout so that you are not left scratching your head as to how you can afford to do both.
While many of these cases do settle, spouses on each side should expect that a trial may be necessary to resolve these issues. Especially in cases where you are dealing with a spouse who is devaluing the business or is engaging in other misconduct, on the one hand, or, if you are the business owner, you have a spouse who has taken unreasonable factual and legal positions regarding the value of the business as well as his or her rightful interest in it, you are not relegated to having to agree to whatever your other spouse wants.
While settlement is of course preferred, if you two cannot settle, you should expect that issues will be litigated through the California divorce process, discovery will be completed, business valuations will be done and ultimately the case will proceed to trial.
What can I expect when divorcing an abusive spouse?
The expectations that come with divorcing an abusive spouse vary considerably depending on the facts of the case. A spouse who has continued to engage in physical abuse of the other spouse or the children will generally be both unpredictable and very difficult. That is because spouses who abuse their wives, husbands and/or the children rarely recognize the destruction that they are causing to both the family unit as well as the emotional toll that their behavior brings.
You should expect when divorcing an abusive spouse that there will likely be a need for domestic violence prevention act restraining orders. If the domestic violence is of a recent origin and there is a present need for protection, the need for a restraining order becomes more immediate.
In situations where the domestic violence is not as recent and immediate protection is not necessary, you still need to be vigilant about protecting the children from ongoing abuse.
Look at it this way – separation from the abusive spouse may protect you because the spouse will not be with you, especially alone, to hurt you. However, your children do not have such a luxury if your spouse is going to get parenting time, especially significant parenting time, with them. In such situations, the issue of domestic violence should be brought to the court’s attention when fashioning any child custody order. Family law judges, especially those in Orange County, are sensitive to domestic violence issues and do follow the law in situations where there is evidence of domestic violence or a finding of it in the case.
To read more about the impact of domestic violence on California child custody cases, read the preceding linked article.
Domestic violence also has an impact on spousal support in the sense that it is one of the factors the court is required to take into consideration when evaluating support pursuant to Family Code section 4320. How is this applied? You should expect that the court will be less willing to award spousal support to a spouse who has been the perpetrator of domestic violence. While it may not completely eliminate spousal support, especially in longer marriages, it can have an impact on the amount and/or the duration.
If the spouse who needs spousal support is the victim of domestic violence, the court will more likely grant support and could also take into consideration a greater need for spousal support for such a victim, especially if the need has been a result of the serious physical or emotional toll that the domestic violence has had on the victimized spouse.
What can I expect in a divorce when faced with false allegations of abuse?
False allegations of abuse, as we have said many times before, is just as bad as actual abuse. When a parent makes false allegations of child abuse or a spouse makes false allegations of domestic violence, they are showing themselves as reckless and malicious and willing to do whatever it takes to, from their perspective, win.
These types of spouses and parents often suffer from serious narcissism and their own serious psychological problems because they are willing to declare under oath something that they know has not occurred just to harm the other spouse or parent.
There is very little negotiation with such parents. Our divorce lawyers take a very aggressive stance against such parents. Do not confuse the word aggressive with recklessness. While a lot of lawyers call themselves aggressive, they are more akin to barking dogs than intelligent advocates.
Effective representation sometimes needs a lawyer who is willing to push the case to a hearing and conduct the necessary discovery as well as not tolerate any nonsense from the other parent or the other parent’s lawyer, to achieve a just result. Justice is not always the end result of a divorce case but when dealing with false allegations of abuse, the stakes are very high. A finding of child abuse against a parent can have serious and long-term impact on not only the relationship between the parent and the children but also potentially the viability of that parent ever enjoying frequent and regular time with the children.
You should expect the litigation process to take hold and you should make sure that you are represented by an excellent family law lawyer in such cases. You should expect that you have to give your complete attention and cooperation to your attorney because if you do not take your own case seriously and do not prepare yourself to properly defend against the false allegations against you, you may find yourself unprepared when the matter finally proceeds to court.
The good news is this. California law helps you when you have shown that the false allegations against you are knowingly made.
When dealing with false allegations of domestic violence, the court has the power to monetarily sanction the other parent and, in a case that involves children, even take custody away from that parent.
When dealing with false allegations of child abuse, the California statutes are specific. California Family Code section 3027.1 specifically states
If a court determines, based on the investigation described in Section 3027 or other evidence presented to it, that an accusation of child abuse or neglect made during a child custody proceeding is false and the person making the accusation knew it to be false at the time the accusation was made, the court may impose reasonable money sanctions, not to exceed all costs incurred by the party accused as a direct result of defending the accusation, and reasonable attorney’s fees incurred in recovering the sanctions, against the person making the accusation. For the purposes of this section, “person” includes a witness, a party, or a party’s attorney.
What should I expect when divorcing a narcissist spouse?
What you should expect when divorcing a narcissist is similar to what you would expect when divorcing and abusive spouse.
We have written very informative articles about the subject of divorcing a narcissist.
Our first one, called divorcing a narcissist without sacrificing your rights, was designed for the lower income spouse and what impact we have seen divorcing a narcissist can have in such a situation. In that article we talk about the financial abuse that is prevalent in those types of cases as well as the gamesmanship that occurs in a child custody context.
Our second article about divorcing a narcissist was designed to help the higher income parent when a stay at home parent uses the children as leverage or, even worse, engages in parental alienation or conditioning of the children.
Got questions about your specific divorce and expectations?
If you have any questions for our experienced family law attorneys, please contact us at our Orange County office. We offer an initial, free 30 minute consultation which we can conduct by phone or in person.