Procedural Steps Of A Contested Divorce
There are generally five (5) steps involved in a divorce and they are summarized as follows:
- Processing Of Paperwork:
The first step in preparing for a divorce is the processing of the paperwork. This generally includes preparation of the initial pleadings, including, without limitation the following:
If you are person initiating the divorce or the “Petitioner,” we will file a Summons [Family Law] and Petition-Marriage/Domestic Partnership; OR
If you are have already been served with the Summons and Petition and you are thus the “Respondent,” we will file a Response-Marriage/Domestic Partnership within 30-days of the date on which you were served a copy of the Summons and Petition in order to prevent a Default from being entered against you.
Following our first meeting, we generally prepare all necessary paperwork in order to either initiate the processing of a divorce or respond to the Petition for Dissolution. Once filed, the pleadings are served on your spouse.
If you are the Petitioner, the six-month clock starts ticking [“Waiting period”] once the other spouse is served with your Summons/Petition. If you are the Respondent, the six-month clock started ticking when you were served. In CA, your marital status may not be terminated until six-months elapse from the date of service of the Summons/Petition. Stated another way, the earliest your divorce can be final is six-months and one day from the date of service of the Summons/Petition.
The purpose of the six-month waiting period is to encourage reconciliation between spouses, and if in fact reconciliation occurs during this period, please contact our office and we will see that all paperwork is stopped. Additionally, if you would like a referral for counseling to work on your marriage, we will be happy to refer you to qualified counselors.
- Request Temporary Court Orders:
After the initial pleadings have been filed with the court and served on the other party, the next step is to prepare, file and serve a “Request for Order” which is a request for the Court to establish or modify certain orders. Generally, included in the Request for Order, is a request for the Court to address issues, including, without limitation, the following:
- Child Custody
- Child Visitation
- Child Support
- Spousal Support
- Attorney’s Fees and Costs
When the Request for Order is filed with the court, the court will give you a hearing date, generally within about 30-45 days, depending on the court’s calendar.
If you have a child that is age 14 or higher, and the child wishes to testify and tell the Judge his/her preference regarding custody and visitation, please let me know so that I can include this in our Request for Order.
The purpose of the Request for Order hearing is to maintain the status quo, to ensure that the children and the supported spouse have sufficient financial resources to meet the necessities of life, and to achieve a balance between the households of the standard of living.
The third step involved in a Dissolution of Marriage is generally the discovery phase. Discovery means that you are trying to learn certain facts or obtain certain documents that are relevant to your case from the other party. There are two types of discovery, formal and informal.
- Formal Discovery
There are several formal discovery mechanisms, including, without limitation, the following:
- Form Interrogatories
- Special Interrogatories
- Demand for the Production of Documents
- Request for Admissions
- Deposition Subpoenas
A deposition is usually conducted in a conference room or the offices of opposing counsel, and a court reporter is present. At that time, I will be asking questions of your spouse for the following purposes: Secure information; solidify testimony so it may not be changed at future hearings or trial; obtain necessary documentation to adequately present your case; and evaluate witnesses.
- Informal Discovery
Informal discovery is also instrumental in a divorce proceeding.
Family Code section 2100(b) provides: “Sound public policy favors the reduction of the adversarial nature of marital dissolution and the attendant costs by fostering full disclosure and cooperative discovery.”
An example of informal discovery is sending your spouse or the attorney for your spouse a letter requesting certain documents i.e. a recent mortgage statement.
Another example of informal discovery, and by far the most important, is the Preliminary Declaration of Disclosure.
Family Code section 2104 requires each party to serve on the other a “Preliminary Declaration of Disclosure” which includes, in pertinent part, the following:
- A completed Schedule of Assets and Debts [a list of all of the assets that the party may have an interest in and debts that the party may be liable for, regardless of the characterization of the asset/liability as community, quasi-community or separate];
- A completed Income and Expense Declaration with the required attachments [two (2) months paystubs or if self-employed, a current Profit and Loss]; and
- Tax returns for the past two (2) years.
Finally, Family Code section 2104 requires Petitioner to serve the Preliminary Declaration of Disclosure within 60 days of filing the Summons/Petition and Respondent to serve the Preliminary Declaration of Disclosure within 60 days of filing the Response.
The Preliminary Declaration of Disclosure is mandatory, and the Court cannot and will not finalize your divorce until both parties have exchanged it and filed proof that they did so with the Court.
A Final Declaration of Disclosure is also required under Family Code section 2105 unless it is waived.
- Formal Discovery
- Settlement Discussions:
The fourth step involved in a Dissolution of Marriage is Settlement Discussions. Generally, by the time the first three (3) steps are completed, the emotional involvement of the parties and conflict level have greatly decreased.
Therefore, the parties are now ready to determine issues in the case with more objectivity. At this point, we will formulate a settlement offer for the purpose of resolving the case in total. If our settlement offer is accepted, or amendments thereto are agreeable to all parties, a settlement agreement will be prepared. No offer of settlement will be made without your knowledge.
The settlement agreement essentially indicates which assets and debts will be allocated to Husband and Wife respectively. It will address the issues of custody and visitation, together with support and all other matters. The settlement agreement is filed with the Court and will become a binding court order.
The fifth step involved in a Dissolution of Marriage is Trial. At this point, any issues that have not been resolved by agreement will be determined by a Judicial Officer.
When a matter proceeds to trial, attorney’s fees and costs increase exponentially, and often, even when you are scheduled to appear on a certain date and time, the Court on its own motion continues the case due to an impacted calendar or other matters that take precedence, or you start the trial and ultimately have to return again, but not for another month because that is the court’s first availability.
Therefore, it is important to understand that if you and your spouse cannot reach an acceptable compromise and you prefer to have a Judge make the determination for you at the time of trial, your case will inevitably be prolonged much longer than desired, and along with the financial drain on your resources, you will likely experience the concomitant mental, emotional and physical toll that an unresolved matter engenders. However, depending on the facts and circumstances of the case, trial may be necessary to effectuate a fair and equitable division of your estate or determine custody, visitation, child support, spousal support, and/or attorney’s fees.
The procedures described above outline the general steps in a contested divorce proceeding. If in fact you feel this matter is able to be settled from the very beginning, our office encourages sending out a settlement letter soon after the initial pleadings have been filed and served upon the other party. This provides the other party with an opportunity of addressing the issues in a constructive approach aimed at expeditious settlement. This has the obvious advantage of saving attorney’s fees, costs and emotional distress to both parties. If you feel that you have inadequate information with which to make an offer of settlement, it is wise to wait until after the discovery phase before making an offer of settlement.