What Are your rights after filing for Divorce

Graves: Welcome to Legally Uncensored. I am your host, Demetria Graves, and today we have a special guest, attorney Padideh Jafari, a highly experienced family law attorney in Los Angeles and Orange County, which is special because Demetria rarely goes to Orange County. Attorney Jafari holds over two decades of legal experience, graduating from Southwestern University School of Law. She has also taught at NYU and Southern California Institute of Law. So, welcome, Attorney Jafari.

Jafari: Thank you so much for having me.

Graves: You’re so welcome. Tell us a little bit about yourself that I didn’t mention here.

Jafari: Yeah, I mean, I’ve been a divorce attorney for over 20 years. I almost can’t believe I’m saying that—time sort of flies when you’re in this business. Yes, I’ve taught at NYU and Southern California Institute. The greatest joy is really to teach people what we know. I’ve taught community property, family law, and that’s probably one of the greatest rewards—to teach. I have my law firm located in Los Angeles, and in Orange County, and we service Ventura County and Riverside County, so I’m all over the place.

Graves: Do all those counties, just out of curiosity, still allow remote appearances?

Jafari: Yes, most of them do, although I’m sort of old school, as I’m sure you are. We like to make those appearances because you never know what’s going to happen in the court hallway as you’re speaking to your client or opposing counsel. A lot of things can settle when you’re face-to-face.

Graves: Right, agreed. So today, I have you here because I wanted to talk to people—talking about educating—about what happens between the gap, right? When I say gap, I mean the time right before people file for divorce, while they’re going through the divorce, and then clearly after, because a lot of people don’t know what they can and cannot do. Number one being the house—some people feel like, “I want him or her to leave my house.” What are your thoughts on that?

Jafari: Well, legally, I mean, here’s the thing. Because I do a lot of social media as well, I always tell clients, before you file, do a pre-divorce consultation with me because there’s a lot of things you can do before you even file to get your documents in order and sort of be thinking about how you envision the divorce going and what your goals are at the end of all this. We know in California it takes at least six months to get legally divorced, but we also know that it’s usually between one and a half to two and a half years, so that’s a long period of time. So what I always suggest is: You’re not divorced yet, you can keep some cash, because you’re not divorced yet. Figure out as far as schooling—what school do you want to put your children in—do all of these things prior to filing. We have a lot of women clients who have never even had their own bank account, or bank card for that matter.

Graves: Yes, I was going to say credit cards.

Jafari: So these are the things that we sort of coach them legally because they haven’t filed yet. Once you file, you know that there is an automatic stay. Once you file the summons and you serve it on your soon-to-be ex-spouse, there is a stay, so you can’t really do anything. Courts understand though, that you still have to pay bills out of the joint account; you still need grocery money, you still need to pay the mortgage, the car note—all those things. But it’s not like you can go in there now and withdraw $10,000.

Graves: No, not once you file, like you said.

Jafari: Right, so that’s where the gap happens. That’s why the pre-divorce strategy is such a brilliant idea, but of course, it doesn’t always work out that way.

Graves: That is correct. So I’m going to ask you a lot of questions that happen within the gap, in the space where a lot of people may not have talked to one of us before they’ve gotten to this point. The first one is: “I don’t want him or her in this house.” So what do you say to someone that didn’t tackle this prior to filing, and now we have our automatic stay?

Jafari: Right, I mean, we actually have a case like that right now where the husband and wife—husband filed, we represent the wife—and they have three kids, and they’re both stuck in the house because there isn’t enough income. Actually, our client is an attorney, and Dad was a stay-at-home Dad, and now he’s starting to work and get back into the job market. So she’s sort of pulling out her hair, saying, “What do I do? I can’t really leave because my soon-to-be ex-husband can’t afford the mortgage, but at the same time it’s not the best situation.” So this is how I approach it—and I don’t know if you probably do it differently—if there are any allegations of domestic violence, to me, that is like a hard stop. It’s like, “Okay, one of you needs to leave,” because we do not want that to escalate, especially when there are children involved and they become part of that whole toxic dynamic. So if there are no allegations of physical abuse, sexual abuse, financial abuse, or harassment, then you’re pretty much stuck in the house with your spouse. And so right now, in this case, he’s staying and sort of living on the couch, she has the master bedroom, and then all the children have their own bedrooms.

Graves: Right.

Jafari: So yeah, it’s a sticky situation. One of the things that I said to her was, “Let’s put the house up on the market,” because we know that that also takes time. So I was able to secure a broker for her, and she has to do some things with the house—get it cleaned up, get it to market as soon as possible.

Graves: Well, a couple of things to your point, right? Number one, we are in Southern California, so it’s not like you can go and get an apartment for $1,200 a month anymore. You’re looking at at least $2,500. And sometimes, what I’ve heard from clients, that can be more than their mortgage. So a lot of people are sometimes financially forced to remain in the same home. And in terms of selling the property, both parties have to agree to that once the divorce has been filed. And I’ve seen as a strategy, sometimes someone might say, “Nope, I don’t want to sell it,” because that extends the amount of time that they have somewhere to live, sometimes bill-free. So of course, they don’t want to move because that means they’re going to have to find a place to live and then start financially supporting themselves. So the house sometimes can get very, very sticky. But to your point, I agree—if there is domestic violence, we have to figure something out. And in that case, the court can order someone out of the house, but I’ve seen that go both ways. So if you order someone out and they are the breadwinner and there are no orders for that person to pay the bills, what happens?

Jafari: Right.

Graves: Then you’re back in court trying to get orders to make sure they pay the bills. Sometimes, by that time, things are 60 days, 90 days late, so it kind of spirals out of control. But there are times when the court can make orders for that party that has been—it’s called a kick-out order—they’ve been kicked out of their residence. But then it makes the divorce sometimes very, very, very difficult to navigate because now they are totally upset because they’ve been kicked out of their residence, paying the bills, and have little resources for themselves. So it gets very, very, very spicy, I like to say.

Jafari: Yes. I do suggest, though, if you do have a situation with domestic violence, that in the order, especially—we can do this in California—put “mortgage payment paid by whoever has been paying the mortgage payment” because you want to make sure, to your point, that when you go back to court, at least those three months have the mortgage paid. And we want to make sure, as far as, you know, what’s the word for it… We don’t want to ruin anyone’s credit in this process because if you ruin someone’s credit, then they can’t go and rent something. So these are all the things that a good attorney or seasoned attorney thinks about. It’s not just, “Okay, let’s kick out your spouse,” but then what happens with the mortgage payment and things of that nature.

Graves: Very true. Another very, very sticky topic that comes up more than I would like is the health insurance, right? So we’re in the gap again. Someone has already filed, there’s a stay, meaning you have to basically keep everything as is. And so what happens—and I think this is a gray area here—is someone would say, “Oh, I have open enrollment now, so I’m not going to keep my spouse on my health insurance.” What would you say to your client if that happens?

Jafari: I mean, if I had a dollar for every time I heard that over the course of 20 years… So the reality is that, once again, once that summons is filed and served on your soon-to-be ex-spouse, you cannot take them off your health insurance. You absolutely cannot do that.

Graves: But Attorney Jafari, it’s open enrollment!

Jafari: I mean, I understand that, but this is the law. And so I tell my clients, “We’re going to do everything according to the law because if we don’t, and let’s say your ex-spouse gets into a car accident or has a slip and fall or something of that nature, or gets cancer, then you’re really going to be in trouble because you’ve kicked them off of their health insurance—with no recourse to them.” So I understand, but this is what I tell my clients: Just because you filed doesn’t mean you’re divorced yet. And so I’m always feeling like I’m walking them off the ledge, right? But I think it’s our job as their attorney to make sure that they’re doing everything legal. And listen, if they can afford their own health insurance, then yeah, that would be a conversation to have with opposing counsel and say, “You know, so-and-so also works. Can she get or can he get his own health insurance?” And most opposing counsels are like, “Absolutely not,” but at least it’s a conversation to have.

Graves: Right, and a conversation to make sure you put in writing, right? Because you don’t want a situation where you said, “Well, they said it was okay,” and you have no documentation to back that up. I say, “Don’t let your emotions get you in trouble,” especially in the divorce space. If you’ve been covering that spouse on health insurance, let’s just continue to cover them. Once the divorce is final and open enrollment comes up again, you can remove them, but for now, let’s keep it as amicable as we possibly can and let’s not get ourselves in trouble. Right? Because there is a stay, and if you remove your ex from health insurance, to Attorney Jafari’s point, if something happens, you can be on the hook for that. You might be responsible for paying your ex whatever fees they incurred because you took them off health insurance. So we don’t want to create extra problems during this process, so I would err on the side of caution because some people believe, “Once it’s open enrollment, because there’s an option to take them off, you may not have to.” I don’t even play those games. I just keep it as is until the divorce is final.

Jafari: Right.

Graves: Which brings me to my next point. I don’t want to die during this process, and they’re the beneficiary on my life insurance, right?

Jafari: So if it’s during the process of divorce, then you know you can’t—again, you can’t take them off, right? Of life insurance. So just keep them on, you know, try not to die in the process. And then what you could do, and this is something that we tell our clients, then you could give the life insurance to your children if they’re over 18. Otherwise, just—yeah, don’t do anything that’s like funny business. We call it funny business where you think that the other side isn’t going to find out, and then they find out, and now you’re in hot water because you did something that was illegal.

Graves: What I say to protect your interest as well is update your trust. If you have an individual trust, you can update it to reflect that, “Hey, I’m in the middle of a divorce. Should something happen, it was not my intent for this person to be the beneficiary—this person should have been.” So that becomes an issue later for the probate court, but as the divorce goes, do not change beneficiaries if there is not a written stipulation for both of you to do so. Another no-no, big no-no once the case has been filed: Do not move out of the state of California with your children. If you read the documents, it specifically states you are not to remove the children out of California. Sometimes, let’s say you have a scheduled vacation and you all agree that that would be a possibility, that’s one thing. But I’ve seen it with my own eyes when someone has tried to move—they’ve even been gone for six months—and the court will order them to come right back. And not only do you have to disrupt whatever you have set up, but now your credibility is a little tainted because you are already not following court orders. What is your take on relocating without a court order?

Jafari: Yeah, I mean, that’s absolutely a no-no. You know, the thing about—with children, and a lot of our clients have children, is that one side is going to be doing the pushing and pulling, right? And they say, “Well, I’ve been the primary custodian, I’ve been taking care of the children,” and now, maybe, you know, sometimes they want to move when they have a significant other, which I know we’re going to get to that point later. And so the thing is, like you said, you absolutely cannot move unless there is a stipulation, or we file for a move-away, right? And so, at that point, the court has to sort of balance the interests of you moving away from the other parent or staying where you are, and really, the court has jurisdiction until the child is 18 or 19 if they’re still in high school. So that’s a long period of time.

Graves: Right.

Jafari: Another issue that I see, and sometimes I feel like this is to be spiteful, but if a kid is in private school—granted, finances do get a little strained during this process—but they want to automatically pull the kids from private school, although the children have been in private school the entire length of the marriage. But I think people do a little Google research, and they see that private school is not mandatory, and so they start pulling kids from, you know, what they’ve known for years. What is your take on private school?

Jafari: I mean, I agree with you. Under the law, really, they don’t have any—they don’t force them to pay for private school, right? So one parent can say, “I’m no longer paying for this.” But, you know, again, that’s a conversation to have with opposing counsel. Obviously, you can make a motion to the court, but you have to kind of wait—can you still afford private school? Because really, I understand what you’re saying—sometimes it is spiteful, but other times it’s like, “I literally cannot afford half of the private school.” And, you know, private school is so expensive these days, right? So really listening to your client, making sure that what they’re doing is not out of spite, it’s a genuine concern for their, you know, what their income now looks like, and seeing if the other party would be gracious enough to pay for it.

Graves: Right. You’re talking about the reasonable client, right? I’m talking about the client that just goes and unrolls the kids out of private school and puts them in public school. The way you described is the right way to do it. Let’s have a conversation. Do our finances make sense? Can we still do this right now? There are laws that say that each party can pay in proportion to their income, correct? So if your spouse makes more than you, then they might have to pay more. Or if you make more, you might have to pay more. So all of that should go into the discussion. But during this gap period, the purpose is to try to keep things as stable and together as we possibly can while we work through what’s going to happen in the next stages. So pulling your kids right out of private school without having this discussion, now that you understand what the gap period is, is not in their best interest. And I think it increases the animosity when we don’t really want to do that.

Jafari: Right, and you know, our law firm—and I’m sure your law firm is the same—we are child-focused. So we tell our clients, “You’re going to move on at some point, maybe get remarried, she’s going to move on, he’s going to move on, but the child is the one that really suffers in the middle.” And so we want to make sure that the child has the most stable—like, their new normal is as stable as possible. And if you’re doing that, think about how your child feels. Now they’re in a different school, they’re in a public school, which I’m not putting any judgment if it’s better or worse, but they’re in a different school, making new friends, and their parents are going through a divorce. So make sure that you put your child at the center of every decision you make, and then you won’t make a wrong decision.

Graves: That is true, that is true. And you bring up a very good point, right? We’re talking about the gap and keeping things as stable as possible—that’s even more so for your children, right? The more you can keep them stable, the better, and the less traumatic impact they will have. And I see a lot of parents now keeping the children in the house, and they are alternating residences. To me, that is really child-focused. And to that end, you do have to have the financial resources to do that. But more so, what we’re talking about is more so for children. The more stability, the better. Which brings me to—I hate when this happens—when one party removes the other from an account because it’s their account that they had, and now the other party doesn’t have access to financial resources. What is your take on that?

Jafari: Yeah, I mean, that one’s a tough one because we’ve had clients with this situation where they’ll say, “How do I even pay attorney’s fees?” Right? Because they’re no longer on the Wells Fargo, Bank of America account. And so it becomes very difficult. Now, what I said originally, which is that summons document that is filed, says “Do not under any circumstances—you’re restrained from taking money in and out of your bank account and credit cards and all this stuff.” But we do know in practice that happens. And so really, you don’t want to be doing this because you can get sanctioned by the court, and that becomes really ugly for you, right? Because you lose credibility with the judge when you do things like that. And I’ve seen this happen, you know, so I say, yet again, like, do not let your emotions drive this process. You want everyone to have the access that they need to navigate the dissolution. It will not be forever. And once you start doing that, then it’s costing you more money in the long run because then attorneys are involved, and the court might potentially get involved. So it really doesn’t help that one party doesn’t have the financial resources that they need.

Graves: Right.

Jafari: But back to your original point about talking to an attorney prior to all of these things happening so there is a plan in place for what financial resources you will have access to or what you’re going to allow access to. I have seen people separate accounts in separation—that’s not technically a violation—but we need to talk about how that’s going to happen. Is someone going to get a new account? Are you going to keep the joint account to pay bills from? Are you going to pay your kids’ expenses through the bills? And are there limits to those accounts? So, to your point, the more you can talk about these things prior to getting into this gap period, I think the better off we are.

Jafari: Right, and I think you’re absolutely right. I mean, those pre-divorce consultations don’t happen frequently.

I wish that they would because, you know, just like when you get into a marriage, you plan, right? There’s a lot of planning that goes into a marriage. So, you know, you get your dress, he gets a tuxedo, you get the venue, and there’s a lot of prep. But I feel like when people come to us for a divorce, there isn’t a lot of prep. Sometimes they don’t even know what credit cards they own or the other person has. Sometimes they don’t know about the business, like if the husband or wife has a business. And so they’re like, “I don’t know how much the person makes,” and you’re like, “But you were married to them for over 10 years.” And so, to your point, I wish that more and more clients came to us pre-divorce filing. But, you know, and hopefully these podcasts that you’re doing will open up that discussion.

Graves: Right. I agree with you, and that’s why we’re here—so people can learn and spark the conversation about what’s to happen. And you can even have that pre-divorce conversation with your spouse if you’re amicable enough. You both can sit down and say, “Hey, this is what we’re going to do before we get started.” Because now you know about the gap and what that means and the pause divorce puts on everything, basically. So you can have that conversation with your spouse and say, “Hey, why don’t we sell the house? Why don’t we live within five miles of each other? You pay these bills, I pay these bills.” That way, you’ve done a lot of the legwork, and you make it easier for us and way more cost-effective in the long run.

Jafari: Yes.

Graves: So another big topic—I don’t know how people do this in the gap—but some people find love again, right? And they want to introduce new significant others. What advice do you give your clients that found love again?

Jafari: Well, it’s funny because this just happened yesterday. I was in a meeting with a client, and he said, “You know, I’m kind of dating someone, you know, for the last three or four months, but I was afraid to tell you.” And I said, “Listen, don’t be afraid to tell me.” But I said, “What I don’t want to happen is I don’t want this new significant other to get pregnant because you’re still married, okay? I don’t want her to get pregnant. I don’t want to ever see her in court. Do not bring her as your emotional support. I don’t want to see her.” And I said, “Just take it slow.” I have a motto: Only fools rush in. Do not rush a second relationship right on the heels of your divorce, right? Because you need time to basically figure out what you did wrong and what went wrong and your part in it. And so I say, “Take as much time getting to know the person.” And he kind of laughed. He’s like, “You know, I’m not afraid of anyone.” He’s a big guy too. He’s like, “But I was afraid to tell you this, but I’m like really excited.” I’m like, “Of course you’re excited because this new person is validating all the things that your ex invalidated about you.” Right?

Graves: Right.

Jafari: So I said, “It’s good to have, you know, that support. Go to dinners with her, go to movies with her, do fun things, but don’t take it seriously, and I don’t want to see the person.” And so, I’ve actually had early on in my career—the reason why I say this is because I actually have had clients bring their new significant other to court. I’ve had situations where the new significant other was way more involved than the person that I was representing. And to me, that is frustrating because you are basically shoving this person into a space that they don’t fit right now. And to me, especially if your ex-spouse is not over the situation, it’s definitely going to drive the tension and the animosity and drag the process longer than a lot of us would want.

Graves: Right.

Jafari: It is my recommendation that, like you said, the dating is light during this period because, like you said, you need to work through what you need to work through. You still have your children that are working through this, your ex-spouse is working through this—it’s really, really hard to fit that person into the puzzle. And please don’t have them come and start questioning me in the process—that really chops my chives.

Graves: Yes.

Jafari: Well, I’ve had them sort of for emotional support come to a meeting, and I’m like, “They’re sitting outside. They’re not going to be in the conference room with us,” you know? Because also that destroys confidentiality, you know, attorney-client confidentiality. So it’s tough because you can see them being giddy about it—new relationship, especially if they’ve been in, you know, sort of these narcissistic, difficult relationships, and now they found maybe someone that understands them and is giving them that support. So, like you said, light dating is okay. And then also, be careful not to introduce them to your child because, you know, your child is going to go home and tell Mom and Dad, “You know, guess what?” And so, I’ve had that situation where, you know, my client will say, “You know, Johnny is now saying that there’s a Susie in the mix,” you know, or whatever. And I’m like, “What?” And so, again, it just heightens all the emotions. And what we’re trying to do is try to just have everything status quo. And I say stoic—we’re going to be stoic through this whole process. There are not going to be too many high highs and low lows, and we’re just going to get this process over with, and then you do whatever you want.

Graves: And what I’ve seen with some children, because they’re just not ready yet, they won’t want to go over there if they know, to your example, that Susie is always going to be at Dad’s house or Jeffrey is always going to be at Mom’s house. They don’t want to go because kids sometimes don’t have the language to tell us, “I’m not ready for this. I’m not ready to form these new relationships.” And another thing that is a huge no-no, please don’t have them call your new significant others Mom and Dad. Please—that just creates so much unnecessary drama. They can call them Mr., Ms., whatever, but let’s keep the Mom and Dad for Mom and Dad. Some children down the line may want to call them Mama Susie or whatever it is, but not in this period that we’re talking about. And I agree with you. I would say just keep the kids out of it for now until we get further down the process.

Jafari: Yes, that’s great advice.

Graves: So as we’re wrapping up, it goes fast, right?

Jafari: Yes.

Graves: What is some of your—you know, some advice you would give someone—you’ve kind of done it already—but they’re coming into this space, they don’t really know what to expect. Speak to that person.

Jafari: You know, for us, we’re seasoned attorneys, right? So for me, what we do at our law firm is we do something a little bit different. I have a psychology background, and so we really want to make sure that the client is a good fit for the firm and we are also a good fit for the client. And like we were talking before we started recording, not every client is a good fit for a certain firm. And so we take that into consideration because we don’t want to be three months in and find out it’s not a good fit. So we really try to ask, “What are your goals? What are you trying to achieve?” If at any point, you know, they’re trying to make sure that they take the child for themselves or exhibiting just crazy behaviors like that or territorial behaviors, especially towards the child, that’s just not the type of client that we’re going to accept.

And so we know—actually, this is funny—the other day I asked my husband, I said, “Is marriage a contract or is it a covenant?” And he said, “I feel like what’s going to happen is anything I say is going to be used against me.” And I said, “No, what is it?” And he said, “Well, for our marriage, it’s a covenant, but for other people, it might be just a contract.” And so when you come into a law firm for the first time, we look at it as, unfortunately, a contract. And just like you have a business partner that you no longer agree with, and now you have to dissolve that business, it’s the same way for divorce attorneys. We think, “Okay, this is a contract that needs to be dissolved. So do you own a house? Who gets the house? Do we sell the house? Who sees the children? Who has primary custody? Who has joint custody? Do you want joint custody? Business—we have to deal with that.” So really, we view it as a contract, but I also am empathetic to my clients. So I give them a little bit of the psychology background, and I say, “I want you to start reading books. I want you to start healing in this process and get to your recovery at the end of this.”

Graves: So if you’ve been following the podcast, you know, for one, I think you should always start the process with a prenup. Because like I said in another podcast, this is a contract, right? And most things we do in our lives are contracts. So I think there’s something to be said to talk ahead of time—what happens if the contract is broken? Even if you don’t get a prenup, start having that conversation. It doesn’t mean that you want to get a divorce. It doesn’t mean that you hate your soon-to-be partner. It just means that you’re having the conversation. And then what we’ve talked about during this entire process—before you even get into the gap, please have a conversation with your spouse about what you’re all going to do during that time. And if not with your spouse, with counsel, so you kind of know what to expect, what’s going to happen during that period. And then finally, to make this process as amicable as possible. It doesn’t help either one of you to fight your way through this process. So you were the best person to talk to about this because I feel like we have very, very similar practice styles.

Jafari: Yes.

Graves: And you were right—we were talking about potential representation, and kind of, I don’t work with everybody. And sometimes if an attorney is on the other side, and I know it’s just going to be constant daily fighting, I’m not doing it. Especially as seasoned as we are, we no longer have to do that, and I don’t. But I am so grateful that you took time out of your day to come and sit with me. Can you tell people how to find you—all that great stuff?

Jafari: Yeah, I mean, we’re also big on social media these days. I remember when I started my practice over 20 years ago, it was the Yellow Pages. (Laughs)

Graves: (Laughs) They’re laughing because that’s what it was.

Jafari: That’s what it was. And so now everything’s social media—so, Jafari Legal on Instagram, TikTok—I have a lot of funny videos on TikTok. And then also, the website is JafariLegal.com. And yeah, this has been a pleasure. And anything we can do to educate the community, because not every client can obviously afford us. Some clients have to file pro bono or file in pro per, so anything that we can do, definitely reach out to us, and we will try to help.

Graves: Thank you, and that is essentially what we try to do here at Legally Uncensored—is give you as much information as we possibly can for your healing journey and, of course, for your legal journey. So as usual, thank you so much for listening to Legally Uncensored. I am your host, Demetria Graves. Don’t forget to follow us on all social media platforms as well. And until next time, thank you.