San Diego Divorce Process
The Divorce Process: What to expect
How is a divorce started?
The divorce process starts when one spouse files a request (“Petition”) for dissolution of marriage or domestic partnership. Other than issues of jurisdiction (the appropriate court for filing), the petitioning spouse (“Petitioner”) does not gain a legal advantage simply by being the first to file. The Petitioner must serve the other spouse (“Respondent”) with the Petition. The Respondent has thirty days to file a Response.
What happens next?
A divorce is not automatically finished by the court. Instead, California law requires both parties to inform each other about all income, assets and debts through a “Preliminary Declaration of Disclosure”. The purpose of this law is to help make sure all community property and debts are divided and distributed during the divorce process. Disclosure is very important because one party’s failure to fully disclose his or her income, assets or debts can be considered by the court at subsequent hearings.
What if I need support?
Throughout the divorce process, a party may request a hearing for the court to make orders for temporary child support, spousal support and the payment of debts. These requests are made through a “Request for Order”. As with the Petition (or request) for dissolution of marriage, the responding party is served with a copy of the Request for Order and given an opportunity to agree or object to the requests through a “Responsive Declaration”. The judge may grant (in whole or in part) the requests, or deny the requests, at the hearing.
My spouse and I cannot agree on how to share our children, what do I do?
If you and your spouse cannot agree on a parenting plan for your children, you should file a Request for Order requesting a hearing for the judge to decide an appropriate parenting plan. The court will order both parents to attend a free, court-sponsored mediation session with Family Court Services (FCS). The County of San Diego is called a “recommending county,” which means that, to the extent parents are unable to agree on certain aspects of a parenting plan, the FCS mediator provides a report to the report which contains any agreements, as well as the mediator’s recommended solutions for areas of disagreement. This report is reviewed by the judge at a hearing after the FCS mediation date. During the hearing, the judge will listen to each party’s agreements or disagreements with the FCS mediator’s recommendations. The judge then makes orders to establish a parenting plan.
How is a Divorce Finalized?
Throughout the dissolution process, the parties may work out agreements regarding spousal support, child custody, child support, and the division of the community assets and debts. To the extent that the parties cannot agree about these issues, a trial will be held, at which time the judge will listen to the evidence and arguments of both parties and then make the required orders. The parties’ agreements (if any) and the trial court’s orders, are recorded in a document called a Judgment. The court then processes the Judgment and determines the date on which the marital or domestic partnership status ends.
How long does a California divorce take?
There are two aspects to this question: a) how long does it take to complete paperwork for a divorce? and, b) how long after the Petition is filed is the marriage terminated? Parties may complete their divorce paperwork in a single day, provided they are properly coached and prepared with the necessary information. Even if all of the paperwork is properly and completely filled out, the marriage will not be terminated until after the mandatory “cooling off” period is completed. This period is six months after the Respondent was formally notified (“served”) with the Petition.
After a Judgment is finalized (“entered” by the court), can it be changed?
Any portion of a Judgment may be changed if the parties agree. Additionally, orders regarding child support, parenting time and spousal support may also be changed after a Judgment is entered. Other terms of a Judgment, such as division of assets, debts and retirement savings are generally not modifiable unless there are circumstances involving a party’s misconduct during the divorce which results in the Judgment not equitably dividing the marital assets and obligations.
It is extremely important that a Judgment’s contents to be well thought out, with specific, clear and complete language. Often, parties without attorneys do their best to phrase the Judgment, but only later when problems arise, do they realize that the language in the Judgment is ambiguous, inconsistent or vague. Such Judgments are sometimes unenforceable because judges may use only the words in the Judgment to interpret it.
Leigh A. Kretzschmar is an experienced and qualified attorney who has drafted hundreds of Judgments containing the details necessary to clearly set forth the intended division of assets and debts, the resolution of complex property issues, spousal and child support, and child custody issues.