The Divorce Process and Roadmap
Every family law and divorce case is unique, but they all have some common basic steps to begin the process, to have temporary orders made and ultimately to obtain a final judgment. At Law Offices of Michael E. Finein, I’ll take the time to discuss the specifics of your case and tailor the process to meet your needs and goals.
Following are some of the basic steps in the divorce process, but remember every case is unique, so your case will almost certainly have more and different steps that you need to consider taking and the steps may need to be taken in a very different order.
The First Steps
Consultation: Your first step is to contact least two experienced family law attorneys for consultations to get preliminary information on your rights, how to protect your interest and how to prepare for your divorce.
Preparation: You want to be prepared to start the divorce process. Discuss this with the attorneys you consult with and please refer to the How to Prepare for Divorce section of my website.
Petition for Dissolution: You fill out your Petition for Dissolution and a Summons and then file them with the court. You should consult with an attorney to determine in which county you should file. There is currently a court filing fee of $435 to file your Petition. If needed you can request a fee waiver from the court.
Divorce Will Take At Least Six Months
There is a 6 month waiting period to actually terminate your marriage which starts from the date you have your spouse served with the Summons and Petition. Please be advised, you are NOT divorced automatically at the end of the 6 month waiting period. You must obtain a Judgment of Dissolution from the court in order to terminate your marriage.
Automatic Temporary Restraining Orders: When you file for a divorce and serve your spouse, automatic temporary restraining orders (commonly referred to as ATRO’s) go into effect. The ATRO’s are listed on the second page of the Summons. Make sure you read and understand the ATRO’s as there are potential penalties for violating them.
Serving the Petition and Summons: You need to have your spouse personally served with the Summons and Petition. You cannot serve your spouse, it has to be another adult. The person who serves your spouse must sign a Proof of Service of Summons which must be filed with the court.
Response to Dissolution: Your spouse has 30 days from the date he/she is served with the Petition and Summons to file and serve their Response.
Requests for Orders: As soon as you file for your divorce, or at the same time as filing for the divorce, you can file motions to ask the court for temporary orders, including, but not limited to child custody/visitation, child and/or spousal support, attorney fees, and property orders.
Your First Hearing
Short Cause Hearings: When you file a Request for Orders, you will be given a hearing date on the short cause calendar. Your Request for Orders must be served on your spouse. Your spouse has an opportunity to file a Responsive Declaration with the court and have you served. Short cause hearings are generally 15-20 minutes in length. At the hearing both sides will have an opportunity to present their case to the judge. In most instances, your motion will be decided at that hearing and the Court will make orders, so you want to make sure you clearly communicate the facts supporting your position to the judge.
Child Custody Recommending Counseling: If you are requesting custody/visitation orders, both parents must participate in mandatory Child Custody Recommending Counseling. Your mediation appointment with the Family Court Services Child Recommending Counselor is extremely important. The Counselor’s goal is to have the parents reach an agreement on custody and visitation. If you cannot reach an agreement, the Counselor will write a report and make recommendations to the judge for custody and visitation. In most cases the judge will follow the Counselor’s recommendations.
Financial Disclosures: California Family Law requires both spouses to complete and exchange financial disclosures and file documentation with the court that they have been exchanged. You cannot get divorced until this step has been completed. The required financial disclosures include an Income and Expense Declaration and a Schedule of Assets and Debts. Properly completing your financial disclosures is a critical step in your divorce and must be completed carefully. Each spouse has a fiduciary duty to the other to completely and accurately disclose financial information which includes a duty to update each other when financial information changes.
Discovery: Depending on your case, in order to best pursue your rights, you may need information or documentation your spouse did not provide in the financial disclosures. Both parties have the right to formally request information and documentation from the other party. The party responding to the discovery requests must do so under penalty of perjury. You can demand this information in a number of ways including, through written questions (Interrogatories), demands for production of documents, requests for admissions and other means including taking your spouse’s deposition. You can also subpoena your spouse’s financial records if needed.
Settlement or Trial: There are only two ways to complete your case. Either you reach a settlement or you have a trial on any outstanding issues. If you reach an agreement with your spouse on all issues, you can file a Judgment that contains the terms of your agreements which will become the orders of the Court.
Settlement Conference: If you have not been able to reach an informal settlement with your spouse you can request the Court set your case for trial. The Court will schedule you for a court Settlement Conference before setting your case for a trial. If you cannot settle your case at the Settlement Conference, your case will proceed to trial.
Trial: A trial is a full evidentiary hearing with live witness testimony and admission of evidence under the California rules of evidence. The judge will issue a decision after hearing all testimony and considering all of the admissible evidence. The judge’s decision will become a Judgment and the orders of the Court in your case.
Final Judgment: A Final Judgment disposes of all issues in your case, including property division, support, child custody and visitation, attorney fees and termination of marital status. Your case is not completed until a Judgment has been submitted to court, approved by the court, filed and entered.
Qualified Domestic Relations Orders: A Qualified Domestic Relations Order is an order telling a pension plan administrator how to divide the pension plan, including how much each spouse should receive and when.
Post-Judgment Orders: In many cases you may need post-Judgment orders to enforce or modify the orders contained in your Judgment.
Please keep in mind, the above basic steps are only a very general guideline of the divorce process. The steps required in your case will vary.