In California, divorce is not a quick act that one can complete almost immediately; but instead, it is a process that can take numerous steps to finish. And, normally, even after the filing and other steps are completed, there will still be a 6 month waiting period before the divorce can be finalized.
At San Diego Divorce Attorney, we are intricately familiar with every legal step and requirement of the divorce process, and we know how missteps along the way can have negative impacts on issues like division of marital property, spousal support, child support, child custody/visitation, and more. And we also know how to prevent such missteps and protect your rights and those of any minor children involved.
To learn more or for a free initial consultation, feel free to contact us today by calling 858-529-5150.
We have divided a typical California divorce process up into 10 steps to better analyze it and present it to you. Here are the 10 steps and what you need to know about them.
1. Filing the Petition for Divorce
The first step, which initiates the divorce process in California, is when one spouse files a petition for the dissolution of the marriage. And hand in hand with this is the serving of a "summons" to the other spouse that notifies him/her of the filing.
Once filed in the Superior Court of the appropriate county (either where the petitioner lived while married for the last 3 months or where he/she moved after the separation), the court will assign a case number to the petition. However, there is also a filing fee of over $400. (One can apply for a fee waiver if he/she can't afford the fee.)
The divorce papers are usually served to the other spouse personally, but not by the filing spouse or a friend or family member. Instead, a registered server will normally be used by your attorney to serve the papers, which ensures no denial of their being served or served properly will hold.
If personal service is not feasible, it is possible to serve the divorce papers by mail; but then the other spouse must sign are return an included form as an "acknowledgment of receipt."
Within 30 days of being served the petition and summons, the other spouse must have responded.
2. The Response to the Served Petition
An official response form is to be filled out by the served spouse. He/she must sign it and file it with the court. And a filing fee is also required to file this response form. The response must also be served back to the petitioning spouse, normally by mail.
If the petitioner did not correctly or completely fill out the petition or if some error or omission occurred in the response, an amended petition or response form must be filed to correct the mistake. And this can be quite complex and slow things down considerably, which is one reason why divorce attorneys are relied on to prevent such mistakes.
If the respondent fails to respond to the petition in time, and the petition was properly served, a "default process" is triggered. A default hearing will be held that must first of all prove that the papers were all legally filled out and served; and the divorce and matters like alimony, child custody/visitation, and child support can proceed without him/her. But that doesn't mean the judge will necessarily give you everything you want, just because the other spouse defaulted.
And if a spouse's default has been "taken," it is still possible to reverse that default if action is taken soon enough, with the help of an experienced lawyer.
3. Request for Temporary Custody/Support
A request for temporary custody of a child and child/spousal support can be filed in conjunction with the petition for divorce or only after the petition has been served. The respondent can also file such a request with his/her response form. In this case, there is no real time limit; there is more flexibility.
The request for custody, visitation rights, or support must be spelled out in specific terms on a number of required forms; and the basis for such requests must also be specified. And that means that an income/expense declaration must be filed along with any request for child or spousal support.
You must disclose your income and expenses on the forms; lying on these forms or hiding income will constitute perjury. Don't think that a false statement on the declaration form will escape notice or that it won't have any real consequences if detected. It's simply not true that "everyone lies on these forms and it isn't really enforced anyway," no matter how popular that myth may be.
The request order will then be packaged all together and served to the other spouse. At that point, the served spouse is given notice of a hearing date. You and your spouse will be given a chance to come to a settlement on child custody and visitation issues before the hearing, but if you can't come to terms, the court will have to intervene and make these decisions.
4. Response to the Temporary Custody/Support Request
After a spouse has been served a temporary custody/support request, he/she must file a response and provide a number of written declarations in response to those made by his/her spouse. This is the served spouse's chance to indicate in essence a "counter request" on custody, visitation, and support issues. And the responding spouse must also include a declaration of income/expense and other evidence to back up his/her requests.
The response must be filed in accordance with strict deadlines; and if you miss the deadline, the court will be able to ignore your response and any counter-claims and counter-requests made therein, if it so chooses. Don't assume a late response will "get by." And that's why you need a diligent, experienced attorney helping you to file these forms correctly and in a timely manner.
You can also ask for a "continuance" if you're not yet ready to respond to the request for temporary custody/support. But you'll need a good reason for such delay to get it approved.
Initial child and spousal support calculations are often done by a computer program. But that is not going to go unchallenged and likely not unadjusted to some degree when it comes to more permanent support. Plus, the information entered into the computer will affect the output, and that information might be disputed in the temporary request and its response.
Finally, a petitioning spouse might file for emergency child custody in a special hearing based on allegations of child abuse or domestic violence. And there can also be requests for one attorney fees to be paid by the other spouse if one is unable to afford them; but responses can challenge those requests as well.
5. The Evidentiary Hearing on the Temporary Request for Custody/Support
If you are the petitioning spouse, you and your attorney need to show up in person at the evidentiary hearing on the request you filed for custody and support. If you fail to do this, the judge will likely deny your request. However, it is sometimes possible to "appear by phone" or to qualify for a rare exception.
It is possible that both spouses will manage to settle issues before the hearing date and come with a settlement in hand that the judge must simply review and approve. But, otherwise, both spouses will have to testify at this hearing.
The length of the hearing will vary greatly with the complexity of the case. And the presiding judge will ask the attorneys involved for an estimate of the time frame to assist in proper scheduling. Most hearings will take around 3 hours or so, but some can take 5 hours or longer, and some are only half an hour or less.
The judge may rule then and there orally at the hearing's end; but he may also mail the ruling to each spouse's lawyer instead.
6. Issuance of Declarations of Disclosure
Each spouse must issue a declaration of disclosure form to the other spouse, listing all of the marital and separate property, income, debt, and expenses. You must serve a preliminary declaration of disclosure to your spouse within sixty days of filing the petition. And your spouse must do the same within 60 days of receiving the petition for support. But there are often extension requests for this preliminary disclosure declaration.
Once you have completed the whole declaration disclosure package, it must be served to your spouse. He/she must also do the same. And both servings must be recorded at the court.
It is important that all income, assets, debts, and other financial matters be fully disclosed before a settlement so that "community property" can be rightly identified, valued, and divided, according to California law.
If you or your spouse fail to serve the declaration of disclosure; or, if the declaration is falsified, incomplete, or misleading, this can make the divorce process more slow and difficult. And it can lead to legal repercussions down the road, if such failures to exchange proper declarations of financial disclosure are not corrected.
The discovery process is a requesting and exchange of information between both spouses during a divorce process. Discovery might involve a series of questions to be answered or documentation to be produced.
Discovery is not an optional part of the divorce process. Answering all legitimate questions and complying with any reasonable document requests is mandatory. And requests for written admissions of particular facts can also be mandatorily made, so long as those facts are indeed true and relevant to the divorce proceedings.
Responses to discovery requests are made under penalty of perjury if untrue. And if either spouse refuses to answer legitimate discovery questions, it can lead to legal consequences and even attorney’s fees charged to you by the other spouse's attorney for having to chase down the answers to the questions.
8. Expert Testimonies
In some divorces, there will be recourse made to expert witnesses. These might be hired by one of the spouses, appointed by the court, or an expert witness that both spouses seek out for advice.
Child custody evaluators, accountants, vocational examiners, and real estate appraisers are all common types of expert witnesses in divorce cases.
The expert testimonies of these witnesses and their research and interview work can help the court decide on a number of important issues, such as child custody and visitation, the amount of community and separate property in the marriage, or the earning capacity of a particular spouse.
9. Reaching a Settlement
Most divorces and the other issues they involve can be settled by mutual agreement of the spouses out of court. It still takes intense legal assistance to come to such an agreement and ensure it will be approved by the judge, however.
If most issues can be resolved without judicial intervention, the divorce process will be faster, less expensive, and less turbulent. After all of the preliminary disclosures and petitions and responses, the culmination of it all would be to make a settlement resolving issues still in dispute.
A mutually agreed upon mediator (or a court appointed one) may have to assist in getting both spouses to a legally viable settlement. But if all else fails, some issues at least could end up being decided in court by a judge instead of being worked out by the spouses and their lawyers.
10. The Divorce Trial
If one/both spouses request a trial, or if one of their attorneys or a Family Court judge requests one, then things will not end with an out of court settlement.
Both spouses will normally be required to appear personally at the trial. You will want to prepare with your lawyer considerably before giving testimony in such a trial. Often enough, trial dates are delayed in divorce cases via continuance requests, but sooner or later, the date arrives, and you have to be ready. A good attorney will ensure that you are.
Note that whether the judge delivers his/her ruling verbally in court or only mails it to each spouse's lawyer varies.
Contact Us Today for Assistance
At San Diego Divorce Attorney, we can help protect your legal, financial, and child custody/visitation related issues during the entirety of the divorce process.
We have served many others in San Diego and Southern California with experienced legal advice and representation during a divorce proceeding, and we stand ready to assist you and protect your rights as well.
For a free, no-obligation consultation, contact us today by calling 858-529-5150.