The California divorce process can be a confusing mess of legalese, rules, procedures, and forms. It’s easy for one to make mistakes and get lost in this seemingly endless process. Knowing what is required can give you peace of mind and the ability to make wise decisions that will be in the best interests of your needs and those of your children. While each case is unique, there are certain steps that everyone looking for a dissolution of marriage must take in order to move through the process successfully. We at San Diego Family Law Attorney wrote this guide with the intent of showing you where divorce cases go from the start to finish, what you should expect and mistakes to avoid.
Preparing for Divorce
Divorce comes with lifetime consequences and it’s a decision that should be made with serious contemplation and consideration. It’s important to first ask yourself whether you’ve done everything possible to repair your relationship, why you want a divorce, and whether you are really ready for a divorce and its unpleasant side effects.
When preparing for a divorce, an attorney can play a critical role in helping you understand your rights and obligations. What you decide on at the beginning will dictate the path, set the tone of your case, and determine the final outcome. Therefore, it’s important to ensure that you get as much information as possible about the how to protect yourself and what to except in the divorce process. Planning for your divorce is always a good idea and we recommend you to take some paramount action before filing.
- Copy important documents related to your income, assets, debts, and expenses such as credit card statements, auto insurance policies, mortgage statements, retirement account statements, tax returns, paycheck stubs, bank account statements, and life insurance policies. Also, move these and other documents such as your passport, birth certificates, Social Security Card to a safe place.
- Change password to your cellphone, iCloud, computer, and social media. The new password should be nothing your spouse can guess.
- Record a video of the contents in each room in your home, as well as those in the safe.
- Check your credit before you file for divorce to know what your credit report looks like and what debts exist. This will help you properly plan financial future.
Instead of blindsiding your spouse with divorce papers, carefully plan out the ideal time to start a conversation and let your spouse know of your decision.
Steps to the Divorce Process
Step 1: Filing for Divorce
To file for divorce, you must be a resident of the State of California and the county you intend to file. The divorce process starts with the filing of Summons (FL 110), Petition (FL 100), and related forms. If you have minor children, you’ll also be required to file a UCCJEA (FL-105), detailing your children’s residences over the past five (5) years. You’ll file papers with the family law clerk’s office at your local courthouse.
The Summons (FL 110) is a mandatory form meant to notify the other party that you’ve filed for divorce and they have a period of up to thirty (30) days to respond. You’re the Petitioner and your spouse is the Respondent. Both parties are subject to restraining orders which refrain from actions such as applying for passports on behalf of their children, transferring or disposing of property, creating a no probate transfer or changing beneficiary on any policies.
Petition (FL 100) on the other hand is a request for divorce. It lists factual information about the marriage required before divorce can be granted. The list will provide residency information and statistical information such as the date you got married or separated as well as your general position on the issues surrounding your divorce. Divorce issues are in five general categories:
- Spousal support
- Child support, custody, and visitation
- Debt allocation
- Property division and
- Attorney fees
The UCCJEA (FL-105), which is the Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act, is another mandatory form that allows the judge to make sure that there is jurisdiction to make orders pertaining custody and visitation. The children must be residents of California for the judge to make these orders. Also, the UCCJEA (FL-105) also clarifies whether or not there are other orders on custody and visitation already in existence from other cases such as a juvenile or guardianship matter.
Step 2: Serving the Divorce Papers
Once you have filed the Summons, Petitions, and the UCCJEA (if you have minor children of the marriage), the petitioning spouse (petitioner) will then be required to serve a copy of the documents to the non-petitioning spouse (respondent). The original documents will be left at the clerk’s office. Serving your spouse means giving them a notice that a case has been opened and there are Standard Family Law Restraining Orders that he/she is subject to. Proper service adheres to stringent requirements and plays a critical role in ensuring the divorce process moves forward.
The papers must be physically handed to the respondent in person. Some individuals chose to have an adult family member of or friend deliver the papers but this is only acceptable if the individual of choice has no interest in the case. You can alternatively choose to hire a professional process server. Important to note, the minimum waiting period (under California Family Code 2339) of 6 months does not begin until service happens. Once the papers have been served, your spouse has 30 calendar days to formally respond by filing a Response (FL-120) and a UCCJEA (FL-105), if applicable. The server must fill out a Proof of Service form, which is required for the divorce process to begin.
Step 3: Responding to the Divorce
When someone is served with divorce papers, the thirty-day countdown begins. If you’ve been served, it’s paramount to carefully review all the documents, especially those concerning the Standard Family Law Restraining Orders. These orders come into play the minute you’re served and you cannot defend your ignorance. In addition, you only have a 30-days timeline to respond failure to which the petitioner has the option of pushing through with the divorce without your input.
If you’re the petitioner and your spouse fails to respond, and the divorce is granted, it does not automatically mean that you’ll get everything you want. For instance, issues of child custody must be decided based on the children’s interests, and if the judge believes what you want is contrary to that, you’ll not be granted the custody. The court may also decide not grant spousal support even if you ask for it. The court must also follow child support guidelines which must involve the other partner providing their necessary information.
Responding to the divorce does not require you to also make a divorce request and does not mean that you agree with your spouse’s requests. It’s meant to allow the judge to protect your rights and hear your side of the story. As such, it’s paramount to ensure that you do not miss the deadline. The formal Response (FL-120) the Respondent, also gets the same opportunity to provide residency and statistical information involving the date of marriage and date of separation, as well as your general position to the five divorce issues.
There is a mandatory fee when you respond to the divorce and is known as first appearance fee. You’ll need to bring the papers to the family law clerk’s office at your local courthouse. The original will remain with the clerk and you’ll get a copy and serve your spouse with a copy. You’ll be required to complete and file proof with the court to show that you served the petitioner.
Step 4: Temporary Orders
Temporary orders can be requested at the during or after the divorce petition. The is no strict timeline on the orders given as they remain in effect until other orders or a judgment is given. The judge will hear your temporary order case 8-10 weeks after you file the petition, and you should, therefore, plan accordingly. For instance, if you know that you need any kind of financial support, don’t wait until you have no coin in your bank account before filing. Plan ahead and make well-educated decisions based on what’s best for you, your children, and your family.
To obtain temporary orders, you’ll need to file a Request for Order (FL-300) form, in which you’ll give a list of issues brought before the judge, including spousal support, child support, child custody, visitation, and attorney fees. You also have the options to pick as many issues as you’d like. Also, you’ll be required to explain to the court what your requests are and why you’re making a request for these specific orders. This statement is called a declaration and describes the facts of your situation. Tell the judge exactly what you want, be honest, and easy to understand.
Once you’ve filed, you’ll be given a date and time for your hearing. The law requires you to serve your spouse with this document at least 16 court days before the hearing. Weekends and public holiday are not included. If you’ve been served, you’ll start by filing a form called Responsive Declaration to Request for Orders (FL-320), which will give you a list of issues brought before the judge. You’ll also get a chance to make your own requests that fall outside the general issues listed. However, if you change your mind about going to court because you and your spouse have reached an agreement, you’re required to write up your agreement into a formal court. It becomes an order when the judge signs and approves it.
Step 5: Financial Disclosures
There are four forms that are filed in a financial disclosure: FL-140, FL-141, FL-142, and FL-150. Financial disclosure involves a set of mandatory forms and other documents that list out all income, expenses, assets, and debts. Also, you’ll state who owns each asset or debt, provide a rough value for each item, and when the property or debt was acquired. Completing financial disclosures can be tricky and tedious, but your lawyer will help you understand what is required of you.
The preliminary declaration of disclosure must be filed within 60 days of filing the initial paperwork; within 60 days after filing the Petition (if you’re the Petitioner), and the Respondent must file within 60 days after the Response. Financial disclosures must be filed and served no later than 45 days before trial according to Family Code 2104. You can also request an extension of the period.
Step 7: Discovery Process
Discovery is the formal request for obtaining information from your spouse. You have up to 60 days before trial to obtain discovery. Discovery comes in many forms, with the most common ones being:
- Request for production of documents: a formal legal request for documents such as medical records, tax returns, paycheck stubs, and bank records.
- Interrogatories: your spouse gets to answer written questions under penalty of perjury (oath). The questions can either be the common questions asked in divorce cases or specific questions that only concern your spouse and your situation.
- Request for admission: written statements under penalty of perjury that require your spouse to admit or deny certain documents to be genuine or certain facts to be true. To make requests for admissions helpful, it’s always great to use them in conjunction with interrogation.
- Deposition: an out of court proceeding that involves your spouse being questioned by your lawyer in front of a court reporter (stenographer). The stenographers take down everything that is said. Your spouse’s attorney is also present.
Step 8: Settlement
A good attorney will help you and your spouse resolve as many issues as possible without going to court. Settlement involves coming to an agreement on all issues related to the divorce and ultimately having a full resolution. The final judgment will be based on the terms of your agreement. Therefore, you must explain what you’ve agreed on every issue.
Settlement outside of the courtroom has a great financial advantage from a cost versus benefit point of view. For instance, if a dispute is about $30,000, it will not make sense to spend the same amount in attorney’s fees. A settlement ensures you get almost the whole amount that you will recover from the dispute. However, it’s not a good idea to go for a settlement that is inconsistent with the best interests of your children or that significantly compromises what you want out of the process.
Step 9: Trial
If settlement can’t resolve a case, the divorce will be finalized by a trial. You’ll get a trial date after all other settlement options have failed. One or both spouses can request a trial, but in some cases, the judge will set a trial even if the parties do not request for it. In some cases, separating (bifurcating) some divorce issues from the others can help in achieving a settlement. For instance, the issue of the date of separation can be bifurcated in order to help resolve debt and property issues. Bifurcation can help save a considerable amount of time and money.
Divorce trials are decided by a judge, instead of a jury. During a trial, those who can testify include the parties (spouses), expert witnesses, and lay witnesses. During the trial, you can expect procedural issues, an opening statement, testimony, and closing arguments.
Step 10: Post-Judgement Issues
Once the judgment on your divorce case is made, you’ll receive a copy from the court with the judge’s signature on it. Also, in addition to that, you’ll receive a separate form known as the Notice of Entry of Judgement. Receiving these documents shows that the divorce is final. After that, you’ll have the freedom to refinance property, obtain your own auto insurance and health insurance, transfer title of your property, change vehicle titles, change your name, and close or separate joint bank accounts.
Each divorce case is unique, and not all divorcing couples will go through all the steps listed in this guide. Some steps are mandatory, and to ensure a fair outcome for you and your family, it’s imperative to understand what is required of you. San Diego Family Law Attorney understands that this is a difficult time, just ensure you take care of yourself and please contact us for legal counsel and representation. Call us at 619-610-7425.