This article will provide an overview of the divorce process (more properly referred to as “dissolution”). The general process is the same, whether the divorce is amicable (uncontested) or litigated (contested). The contested divorce will generally involve more extensive discovery, court appearances, and usually a trial.
The person (aka party) that initiates a divorce proceeding files a petition with the proper court. This will generally be the court within the state and county within which they have lived for 6 months (state) and 3 months (county). That party will be referred to during the process as the petitioner.
The petition and other necessary documents are then served on the other person. Service of these documents cannot be done by the petitioner. Once service of the petition has been completed, the mandatory six-month waiting period in California begins to run, and the party served now has 30 days (by personal service) within which to file a response. This party will be referred to during the process as the respondent. If the respondent does not file a response within the 30 day period, the respondent could be defaulted. Once the petition has been served on the respondent, the court will have jurisdiction over the parties.
Within 60 days of filing the petition, the petitioner must prepare and serve his/her preliminary disclosures on the respondent. Preliminary disclosures consist of several documents and have the purpose of providing to the other party a full disclosure of all material facts and information pertaining to all assets and debts in existence at that time, whether such assets and/or debts are community or separate property. This is a requirement set forth in the Family Code (sections 2100, et seq.) in order for that party to comply with their fiduciary duties to the other spouse. Within 60 days of filing the response, the respondent must prepare and serve their preliminary disclosures. Both parties are required to comply fully with the disclosure requirements even if they are both aware of all assets and debts in existence. In the event that either party sought in the future to set aside a judgment, the court might require the parties to provide the financial disclosures in order to assess whether there was a failure to disclose or inadequate disclosures.
Some parties may choose to conduct additional discovery, such as serving form interrogatories, demands for production of documents, taking depositions and so forth. Whether these discovery methods are elected depends upon the attorney’s judgment based upon the complexities involved, the adequacy of the disclosures, and whether additional information is needed that is not apparent in the disclosures. In the case of uncontested divorces, the parties may be ready to conduct settlement negotiations after the disclosures have been completed.
Often during the divorce process, the parties may need court orders to resolve issues until the divorce is ready to finalize. These would be referred to as temporary orders because they last until further order of the court or until the entry of the final judgment. The issues usually pertain to child custody and visitation, support, attorney fees allocation, restraining or injunctive orders, and so forth. Some cases may never see the inside of a court room. Other cases may be in court on a regular basis.
There are only two ways to resolve issues in any legal proceeding. Either the parties come to agreements and those agreements are reduced to writing and submitted to the court, or the court makes orders on some or all issues. There are several mechanisms that can be used to help reduce the amount of court appearances, and thereby help reduce to the overall cost of the divorce process on the parties. The parties can discuss matters between themselves; the parties and their attorneys can conduct settlement meetings and/or correspondence; the parties can utilize assistance of mediators, outside professionals such as joint experts, private judges or arbitrators, therapists, etc.
Any issues not resolved by the methods discussed above are resolved by trial. The trial process is instigated by submitting a form to the court that informs the court that a trial is being requested. Upon receiving this form, the court will schedule a trial setting conference. Only the attorneys will attend the trial setting conference. At the trial setting conference, the attorneys will choose dates for the mandatory settlement conference (if requested) and/or the trial date. Sometimes the attorneys or the court will not schedule a trial date until it is determined that the mandatory settlement conference proves unsuccessful.
A family law trial does not involve juries. The judge will make final decisions (rulings) on the issues put before him/her. The trial will usually be the conclusion of the divorce process.
If you have additional questions concerning the matters discussed in this article or any other issue pertaining to family and matrimonial law, you can reach our team by calling 949-345-1621 or by completing a short online contact form. Flexible appointments are available by request.