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Wednesday, September 30, 2009

Divorce - Self Representation vs. Attorney

Q: My wife of 15 years said to me, “enough of this”. Our separation has been amenable enough—we mutually care for our 16-year old son.. and we even worked out all the “messy stuff” (property, mortgage, inheritance, etc) while living separately for 3 years. We are ready—should we get a divorce on our own?

Signed: T-Man--Testing the Waters.

A: Dear T-Man:

Your question evokes more than a “toe-tipping” into the waters—it is more like the swirling eddies of multiple crosscurrents. Of course, you and your wife will have to make the emotional decision of whether to split for good, but I can tell you that just because you may live and act like you are not married, does not make it legally so.

The dissolution of a marriage is a technical legal proceeding that requires court intervention and approval. Think of it as breaking a contract or promise, so the court must review all the terms of the “breach of contact”, which of course typically involves issues such as child custody, visitation, distribution of community property assets and debts, etc.

So, if you decide to get a divorce, let me offer you a very brief description of what to expect, followed by three tips.

Step One: Play the song “Going to the Chapel ‘cause I’m gonna get Married”, backwards. It sounds like this…”Going to the courthouse ‘cause I’m gonna get divorced”. The only way you can be legally divorced in Sonoma County is to show up at the new Family Law Courthouse with $350 bucks in hand (filing fee) and a fistful of legal papers. The legal papers are quite complicated but can be found on the website of the Sonoma County Superior Court.

Once you file, you will then need to hire a process server (or the Sheriff) to “serve” your soon-to-be ex. Once the other party is served, he or she has 30 days to file an “Answer” to the first pleading. Wait. We are not done. Then the parties must file a more detailed document, termed the “Marital Settlement Agreement”, which in essence contains all the “stuff” that you think you agreed upon. This Marital Settlement Agreement is then attached to the court’s Judgment. You are not divorced until the Court’s Judgment is entered into the court record.

Now, don’t get cold feet or overwhelmed by this process. If you do decide to do it on your own, you will be in the majority. It is estimated that 75-80% of family law litigants in Sonoma County represent themselves (called “Pro Se” or “Pro Per”). How long will it take? If you do it right, maybe as little as 6 months. You see, if all the papers are in order from the get-go, the court has the jurisdiction to terminate the marriage six months and a day from the first filing.

Do not fear, oh great adventurer, though. Here are three “free tips”:
1) Tip #1: Check out the Family Law Facilitator Self-Help Center, located at 3055 Cleveland Avenue, Santa Rosa. 707-521-6545. The Center has drop-in appointments (bring a bag lunch—you’ll be there awhile) or I believe you can make an appointment. Volunteer attorneys and legal assistants will guide you through the complicated paper process. They will not, however, appear with you in court, negotiate your terms of agreement, etc.
2) Tip #2: You can always hire a reputable private attorney. Find one that emphasizes family law. Most offer a 15-20 minute free consultation so you (and the attorney) can determine if it is a good fit. Of course, this option could be more of a white water ride—fun, exciting, but expensive!
3) Tip #3: You can also hire a “Document Preparation Service”. The papers are prepared by an experienced attorney for a flat fee. One service that comes to mind is “Legal Eagles”. Call 707-526-1460. (And in the spirit of full disclosure, I must inform you that this service is operated by an attorney who shares the same professional office space with me).

It’s your call and your wife’s call. Enjoy the ride!

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