No One Ever Gets Divorced at The Right Time
Five Benefits of Filing For Divorce Sooner Rather Than Later
If you don’t know the comedian Louis C.K. get to know him. He is one of the funniest in the business. As a divorced father of two girls aged 7 and 4 his take on this tragic but common scenario is both funny and touching.
Recently, my friend and fellow attorney Evan Sussman wrote a blog post on why filing a divorce earlier rather than later makes sense. And Louis C.K. just did a bit on his show (on the FX network) about the fact that no marriage ever ends at the right time. Instead, they go on for “years in which the spouses and the kids are in misery.” It just sounds sad when I write it, but then I am not Louis C.K. and it’s certainly true. If there’s no hope, you need to start the dissolution process.
Here are the five points Evan makes in his post on the benefits of early filing.
- Emotional Benefit – If your marriage is over, the sooner you file the divorce action the sooner you can move on in your personal life. (I would add to this that the courts are clogged and broke and it takes a fairly long time to get a dissolution proceeding completed if the couple have children and community property assets. But, by seeking court order separating the issue ofdissolution of the marriage and reserving the property division issues you really can move on with your life. )
- Financial Division of Property – In California, property is valued as close as practical to time of trial.[Family Code §2552(a)] If you are the spouse that has the higher income and or business, this may be a better time for you to have a divorce because assets generally will be valued less today because of the poor economy.
- Early Date of Separation – In California, after the date of separation all of the parties’ individual earnings and accumulations are their separate property. [Family Code §771]. When a party files for divorce and takes active steps to proceed with the divorce, i.e., by serving the other party, and participating in litigation, that conduct generally clearly establishes a date of separation. The date of separation is a critical date in a family law matter, because it will determine the assets, debts and length of a marriage of a couple.
- Ten Year Marriage Mark: If your marriage is approaching the ten year mark and you are the spouse with the higher income, then if you do not file a divorce before the ten year mark of your marriage, there will be a presumption that your marriage is of long duration. [Family Code §4336] What this means is that it will be more difficult to terminate support and the court does not have to terminate support after one half the length of the marriage.
- Division of Retirement Benefits – In California, retirement assets, such as a pension benefits are generally divided based on the time rule. The time rule is holds that the community property ratio is as follows: the numerator is months of employment between the dates of marriage and separation. The denominator is the length of employment including military and parental leave. Again, the shorter the length of your marriage, the less of your retirement you will have to share with your spouse.
Many emotional reasons exist to resist filing for dissolution. Divorce is often devastating on children and depending on how the parents behave it can permanently alter their character. But, staying together for the kids is a good theory and generally a bad practice. Why? Because parents who stay together “for the kids,” usually fight in front of the kids. Living separately and behaving civilly toward your spouse is the second best scenario after a functioning family.