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Here are some frequently asked divorce questions and the answers I’d typically give to them. Bear in mind that in real life things are complicated. These questions can’t be answered with confidence without learning a great deal of background information, finding out what the client wants to achieve, exploring tactical and strategic alternatives, and identifying and considering the legal issues presented. These answers should be considered tentative and subject to change as the case unfolds.
We’d likely turn to money first. Are there liquid assets? Where are they? Are bank and brokerage accounts in both names or in only one? The point here is to make sure, if possible, that you have funds available to weather the coming storm, and to prevent your spouse form incurring debts that you’ll be liable for. Once we file the divorce petition, automatic orders take effect prohibiting you from unilaterally closing accounts and transferring funds. We may tell you to immediately withdraw half (or maybe more) of all the money in all the accounts and put it in a new account in your name only. We’ll also tell you to cancel joint credit cards. This can cause considerable yelling and screaming from the other side, but it’s essential, particularly when you are the low earning spouse.
This is pretty straightforward. We should file your petition tomorrow morning along with a motion for a temporary custody order, and tomorrow afternoon request an immediate restraining order prohibiting the removal of the children from the County. The restraining order will go into a law enforcement database accessible by police and sheriffs. A violation will mean jail and contempt of court. Most people will obey the restraining order once we serve it on them.
This is the flip side of No. 2. The answer is also pretty straightforward, but it’s not the answer you want to hear. We would probably tell you to stay here and file here. California will retain jurisdiction over the children until they’ve been in another state for six months. If you take the kids to Alabama on the pretense of visiting the grandparents, your spouse will most likely wise up when you’ve been there for a few weeks, file a petition for divorce here, and obtain an order compelling you to return the kids. Although you can’t be forced to come back with them, you undoubtedly will. After that it’s going to be difficult to get an order allowing you to move away and take the kids with you, but that’s another story.
There’s nothing straightforward about this one. We would fight to get you sole custody. However, there are many degrees of mental illness, and courts resist depriving parents of their children and vice versa. The test is always the best interest of the child. The court will want to know whether the mental illness of the parent poses a threat to the child’s well-being sufficient to outweigh competing considerations. We would ask the court for a custody evaluation by an expert who would assess the mental illness of the parent from the viewpoint of the risk it poses to the child’s health and safety. We would also challenge the evaluation if it turns out not to be what you want.
By Stan Prowse
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