Ask the Divorce Doc – Q&A

Legal Disclaimer: The information you obtain at this site is not, nor is it intended to be, formal legal advice. Reviewing this website does not create an attorney-client relationship.

Please send your questions to alison@lemonadedivorce.com
Answers to the most frequently asked questions will be posted here. I look forward to hearing from you.

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Should I Try Marriage Counseling?

Dear Divorce Doc,

My husband and I are still together but having a hard time. He suggested we try marriage counseling but I’m not sure I want to do this. I’ve had friends who went to marriage counseling and then ended up getting divorced. It seemed like the counseling made their marriage end sooner. What do you think I should do?

-Sarah

Dear Sarah,

Sometimes if a marriage is ready to end, it does turn out that the subject comes up in counseling and the end result is the break up of the marriage—but that doesn’t mean the counseling caused it. This just means it was too late to save the marriage, or one spouse had already made up his mind and wasn’t willing to work on the marriage. I still think it is worth pursuing counseling because you and your husband may be in time to work things out, and counseling is the perfect forum to attempt this.

Furthermore, even if your marriage ends, being in counseling together is advantageous because you have a place to work out the details of the split. Some of the friendliest divorces I’ve seen were done with the help of a family counselor. The spouses worked out many issues, including the property division and parenting issues, with the help of a therapist and this saved them from getting caught up in litigation. So for all these reasons, I encourage you to pursue marriage counseling. I hope it brings the results you want.

-Alison

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The Honeymoon of the Divorce

Dear Divorce Doc,

My husband and I split up recently. I’m the one who asked for the divorce. I don’t want to hurt him more or start fighting over the legalities, but I would like to get things moving. Right now we are being nice to one another. What should I do?

-Janet

Dear Janet,
In some divorces, I’ve seen what I call “the honeymoon of the divorce.” You may be in this stage. This is a window of time—often the first few months after separation—when everyone is more sad than angry. In fact, there can be great clarity at this time because neither person has been overly influenced by lawyers or friends, there are often no new girlfriends or boyfriends in the picture, and no one is being driven by the extreme anger than can develop later. I’ve seen couples resolve their legal matters fairly and with kindness when they are in this stage. (Unfortunately, there is no stage like this in divorces where there has been infidelity.)

If you think you are in this place as a couple, I would talk with your husband frankly. Explain that you want resolution so you both can stop worrying about the money issues (and the custody issues, if you have children) and tell him about this window of opportunity. If he doesn’t feel ready, back away and give him more time. If he is receptive, come up with a concrete plan (e.g., agree that you will each consult with a lawyer and then sit down together to divide everything up, or agree to meet with a mediator).

-Alison

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When to File for Divorce

Dear Divorce Doc,

My husband just told me he wants a divorce. Should I file divorce papers right away? Is there an advantage to filing first?

-Isabel

Dear Isabel,

Regarding whether there is an advantage to filing first: If you both live in the same county, it generally makes no difference who files first because California is a “no-fault” jurisdiction — i.e., you can divorce without claiming that your spouse or partner did something wrong. However, there may be a strategic advantage in being the first to file and serve if you and your husband live in two different counties or states. The case will be handled by your county Superior Court if you file first, versus the Superior Court in the county/state he lives in if he were to file first.

Assuming this is not an issue in your case (most spouses live in the same county), then let’s go to the next question: When should you file for divorce? (Is it necessary to file right away for other reasons?) There is no simple answer that applies to all cases. Sometimes there is no reason for couples to file right away and it can actually be counterproductive to take formal legal steps. If you and your spouse are making progress resolving issues on your own, filing right away could be seen as a hostile gesture that could push you into a legal battle. However, in other situations, you can lose key legal rights if you wait to file.

The only way to know whether you are going to lose key legal rights is to have a brief consultation with a family lawyer. In an hour or two, a family lawyer can review your case and determine relevant issues, such as child and spousal support, custody, how to manage and protect your joint assets while you are negotiating a final settlement, and whether there are tax advantages (or disadvantages) to being divorced by the end of the year. Educating yourself about your legal issues will allow you to make the right decision, rather than acting out of fear or ignorance.

To provide further information about this issue, I’ve posted a detailed article called When to File for Divorce or a Court Hearing: General Guidelines (in Alison’s Divorce Toolbox) Also on this same subject is The Importance of Choosing the Right Divorce Path (also in Alison’s Divorce Toolbox). I think you’ll get your answer from reading these articles and from a brief consultation with a family lawyer. Good luck!

-Alison

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    Unless otherwise noted, all articles and essays published on this website are copyrighted work of Alison Patton. To request permission to reprint or use these works for any purposes other than personal use, please contact alison@lemonadedivorce.com.