ACFLS
State Bar of California
AVVO
Santa Clara County Bar Association
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3 Common Questions Regarding Divorce

Filing for divorce can be tricky and often leave the spouses involved with a laundry list of questions regarding how to navigate through the process unscathed. Although certainly not a complete list, below are 3 questions that clients often ask us during the dissolution process.

#1: I Filed for Divorce, can I Take my Spouse off of my Health Insurance Plan and/or car Insurance Policy?

The short answer is no. When either spouse files for divorce, there are automatic orders that get set in place upon both parties. These are known as “Automatic Temporary Restraining Orders” or “ATROs” for short. The ATROs are contained on the second page of the Summons that gets filed with the Petition by the party who first files for divorce (also known as the “Petitioner”). Part of those ATROs includes orders that neither party may change the beneficiaries of any insurance or other coverage, including life, health, automobile, and disability that is held for the benefit of the parties or their minor children. Removing or changing any such policy without the other parties’ advance written consent or an order of the Court can result in sanctions (which can come in the nature of you being forced to pay the other party’s attorney’s fees and costs). Even if your spouse has the ability to obtain insurance through their own employer, you still are prohibited from changing their current coverage under your plan. Of course, as the ATROs state, if your spouse agrees to the change then you may absolutely remove them from your insurance policy. Similarly, if the Court makes orders allowing you to do so, then again you are permitted to make changes to your policy. The ATROs are a good example of why you should ensure that you read everything on any Court document with which you are served in your dissolution proceedings.

#2: I Filed for Divorce and the Process is Just Moving too Slow. I Want to be Single Again, What can I do?

Depending on the circumstances of your case, the actual dissolution process can span several months, or in some cases, several years. During this time, it is not uncommon to want to speed things up but feel unable to do so due to the myriad of issues that can arise. It may be the case that you and your spouse simply cannot agree who gets the house and trial isn’t being set for several months in the future. Or, you may find yourself in the thick of a custody evaluation and the recommendations and report won’t be ready for several months. In those cases, sometimes it makes the most sense to bifurcate the issue of marital status. This allows the Court to terminate your marital status now and deal with the remaining issues incident to your divorce later. By terminating marital status early, you are simply asking the Court to legally divorce you from your spouse so as to restore you both back to your status of single. Once that is done, you are able to continue working toward resolution on all the other aspects of your case. For a detailed discussion on the ins and outs of terminating marital status early, please refer to our article on Bifurcating Issues.

#3: My Spouse Refuses to Work Even Though They are More than Capable of Getting a Job. Now I am Stuck Paying Him/Her Spousal Support While They Stay Home. I Need my Spouse to get a Job, how can I Achieve That?

This can be very frustrating for a spouse who is paying support. Depending on the facts of your case, it may be appropriate to ask the Court to order the non-working spouse to comply with a seek work order and/or partake in a vocational evaluation. By asking the Court to order your spouse to comply with a seek work order, you are requesting that your spouse be ordered to look for a job. In order to have the Court order this, you must file a Request for Order with the Court asking these orders to be made. The Court will then set a hearing on your request and decide whether it is appropriate to make such orders. The standard seek work order, when ordered by the Court, requires the unemployed spouse to apply for 10 jobs per week and register with at least 5 temporary employment agencies. As part of these efforts, the spouse ordered to comply with the seek work order, must keep a written log of all efforts he/she makes to find employment. The log must include the name, address, telephone number, and e-mail address for any application made. The log also must include the date the application was made, when any interview took place and the results of the application (i.e. whether or not any follow-up was made, if an offer was made, etc.). In other words, the log must be detailed and not simply say “I applied to ‘ABCcompany’ on January 1, 2018”. Then, after each month that party must provide the other spouse and/or their attorney with copies of the job search logs. The purpose of keeping these logs is to allow the other party to see whether or not the unemployed spouse is truly making an effort to find employment. If the unemployed spouse does get a job, then he/she must notify the other party within 48 hours and provide the name and contact information of the employer as well as the rate of pay. However, if the unemployed spouse does not get a job, then the logs may be used as evidence by the other party to show that diligent efforts are not being made by the unemployed spouse and as such, can be a basis for the Court to ultimately impute income to that spouse when calculating child and/or spousal support.

Another potential avenue is to request the Court to order your spouse to comply with a vocational evaluation. This can be particularly helpful when you have a spouse who rarely or never worked during the marriage. If ordered, your spouse will meet with an expert who will ask your spouse questions about their education, work history, interests, etc. The expert then prepares a report detailing all of this information and provides an opinion as to your spouse’s ability and opportunity to earn at a certain level. For example, your spouse may have previously worked as a substitute teacher early on in the marriage but stopped working after the birth of your children. He/she may tell the vocational evaluator that they are still interested in the education field. Therefore, the vocational evaluator will take that information and run job searches for available teaching jobs for which your spouse might qualify in the surrounding school districts. The evaluator will then provide all of this information in their report and opine as to what he/she believes your spouse’s earning ability is based on the different job opportunities discovered. Again, this can be very helpful for you when arguing to the Court that your spouse has the ability and opportunity to earn but simply is not making the efforts, and therefore, he/she should be imputed income.

Here at Mello & Pickering, LLP we can help you navigate through your divorce case. With 35+ years combined experience, we know how to assist clients in answering all of the questions that arise.

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