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.
First, you must understand that you are entitled to be treated fairly in all court proceedings. This is called “Due Process”. So, what is it? “Due Process” is a set of rules in the court system which is designed to make sure that the rights of every person are protected. In other words, the government (state or federal) may not order you to do something, or not do something, unless you have first had a meaningful opportunity to participate in the legal process. This right is so important that it is part of the United States Constitution (Fifth and Fourteenth Amendments). The result is that no governmental entity can arbitrarily deny your rights to life, liberty, or property.
For civil (including divorce and child custody proceedings), you are entitled to “procedural” due process. In the most basic form, “procedural due process” means that every person in a civil or criminal court proceeding is entitled to an opportunity to be heard and a decision by a neutral decisionmaker. How does a judge make sure that you have an opportunity to be heard? First, the judge will determine if you had timely notice of the orders requested by the other party in your case. “Timely” notice requires two things: a) that you received all documents the other party filed for the judge to review; and, b) you received these documents ahead of the hearing according to the deadlines set by specific California laws. If these two things happen, then you will have a meaningful chance to file opposing documents for the judge to consider; and/or, time to prepare to speak to the judge during the hearing.
What should you do if you did not have timely notice? Even if you were served late (no timely notice), it is critical that you attend the hearing to report to the judge that you did not have “timely” notice. If you do not know, or do not understand, California laws which define the deadlines for service of documents, be sure to research on the internet, contact the Court’s free legal services, or contact an attorney.
What if you received “timely notice” but still will not have an “opportunity to be heard” because you do not have time to prepare, or to hire an attorney? If so, you must still attend the hearing to tell the judge why you did not have enough time to prepare for the hearing. If you are not comfortable talking to a judge, you must hire an attorney. Why? Because the judge is required to find that you had a meaningful opportunity to be heard if you received timely notice, unless you explain what that is not true in your case.
These are just the primary principles of due process. If you feel you were denied due process, or that you were not fairly treated in court, be sure to contact an attorney right away because there are timelines to challenge a judge’s decision based on denial of due process.
This question arises most commonly in child support cases or adoption proceedings. Termination of parental rights can only occur through a court order. A parent may choose not to exercise the rights of being a parent (like parenting time); but, a parent cannot voluntarily avoid the rights of being a parent (like the obligation to pay child support). So, if you are trying to avoid child support or a very problematic relationship with a co-parent, it is unlikely that the Court will allow you to voluntarily terminate your own parental rights.
If you are a parent who wants to terminate another parent’s rights, then there are few limited circumstances which are a legal reason to terminate parenting rights. Virtually all of these situations arise through an adoption proceeding. The “reasons” include abandonment, neglect or cruelty, the other parents suffers from disabling alcoholism, addiction/abuse of controlled substances, or moral depravity (untreated, uncontrolled sexual abuse, etc.); felony conviction of such a nature which presents a danger to the child, medical determination of developmental disability or mental illness which deprives the parent of the ability to care for the child; or, mental disability.
If any of these circumstances apply to you, hire an attorney or contact the Court’s self-help resources to determine the documents and pleadings your local court will require to consider your request. It will be necessary for you to serve the other parent with all of the documents that you file in court for the judge to read and consider.
This is such an important issue, and the standards are very high, you are well-served by contacting an attorney to go through your particular situation to see if termination of parental rights is legally possible.
California law gives a responding party thirty (30) days to respond to a Petition for dissolution of marriage, or to a Petition to Determine the Existence of a Parent/Child Relationship. If you do not file the proper pleading to respond to the Petition served on you, you will be in “default” (which means failure to respond). After a default, the other party may submit additional papers to the court to request that the judge finalize the case with that person’s requested orders. The Judge is limited to the orders requested in the documents originally filed with the court.
If you cannot file the response pleadings within the thirty (30) days, and you cannot hire an attorney to do this for you, it is critical that you promptly contact the other party and ask for a brief extension. If you do not file your response pleadings within the thirty (30) day and the other side will not agree to an extension, be prepared to file papers with the court requesting that the court set aside a default if the other side requested it.
As a general rule, parents are permitted to arrange their own child care/babysitters during their own parenting time. However, if that parent’s judgment results in an injury to a child, or if there is a history that the girlfriend negligently cared for a child on a prior occasion, the court may limit or prohibit who may care for a child in the parent’s absence.
That being said, there is a caveat – a caution: if a parent consistently is absent during that parent’s custody time for reasons other than work, then a judge may consider the other parent’s request for a “first right of refusal”. This right means that you would be required to contact the other parent if/when you are not available during your custodial time for several hours for reasons not related to your work. “Several” hours is usually eight (8) or more consecutive hours. You should feel free to go out for a movie and dinner, complete projects or errands, and other activities.
This has been a very common problem for quite some time, particularly as texts and email has become the primary means of communication, along with social media. Fortunately, in 2020, the California legislature enacted a new provision under California’s Domestic Violence Prevention Act (“DVPA”). This new provision is referred to as the prohibition against “coercive control”. The problem recognized by prohibiting “coercive control” tactics under the DVPA is that non-physical abuse may also result in a hostile, or hostage-like, experience for the victim. Many abusers hide behind the fact that they did not physically assault the victim to avoid restraints under the DVPA.
First voiced by Dr. Evan Stark in 2007, “coercive control” occurs when tactics of coercive, threatening words, along with other domestic violence tactics such as intimidation, isolation and be-littling are used to control the victim, eventually leaving the victim believing that he or she has no ability to get out of the situation. It is very important to note that such tactics occur in relationships between opposite-gender couples, same-gender couples, regardless of whether they live upper class, or middle-class lifestyles. “Coercive control” occurs in all types of relationships.
The new Family Code section under the DVPA, Section 6320, states that “disturbing the peace of the other party” is coercive control which “destroy[s] the mental or emotional calm” of victims; and, accordingly, is appropriate grounds for issuance of a restraining order. The person asking for the restraining order must submit evidence to the court to prove that there is “a pattern of behavior that in purpose or effect unreasonably interferes with a person’s free will and personal liberty.”
Family Code section 6320 specifically refers to certain types of behavior which is prohibited:
(1) Isolating the other party from friends, relatives, or other sources of support.
(2) Depriving the other party of basic necessities.
(3) Controlling, regulating, or monitoring the other party’s movements, communications, daily behavior, finances, economic resources, or access to services.
(4) Compelling the other party by force, threat of force, or intimidation, including threats based on actual or suspected immigration status, to engage in conduct from which the other party has a right to abstain or to abstain from conduct in which the other party has a right to engage.
In most cases, the Court will look for a pattern of actions, called the “totality of circumstances”, which establish by a preponderance of the evidence that the abuser intended, or did, exercise some form of “dominion and control” over the victim.
So, the answer to this question is whether or not the judge in your case comes to the conclusion, under the “totality” of your circumstances that (what you consider to be) abusive texts and emails amount to an intent to exercise “dominion and control”, whether they destroy mental peace and calmness, whether they amount to harassment (due to frequency and nature of content), or whether they are simply annoying.
This type of claim under the DVPA is a hard case to prove. You are well advised to consult with an attorney before filing this type of DVPA request. You certainly do not want to educate the other party about how far they can go before crossing the line in a DVPA matter.
Maybe. California’s statutes and case opinions create a complicated set of guidelines for judges to sort through before granting or denying a request to move a child away from his or her current residential area. You should first understand that move-aways are very hard decisions for the courts because, often, the move is so far away that maintaining the existing parent-child relationship with the non-moving parent will be very difficult, particularly for younger children.
There are three common scenarios when this question comes up in Family Court before trial: 1) when you have already been awarded sole legal and physical custody as a temporary order; 2) when the other parent has already been awarded sole legal and physical custody as a temporary order; and, 3) when no temporary court orders have been made.
If judge already awarded you sole legal and/or primary physical custody, the court starts with the idea that the prior decision should be followed. However, you should also realize that it is easier for the other parent to overcome the prior order because pre-trial orders are intended to be temporary, or short-term, orders.
If the other parent was previously awarded sole legal and/or primary physical custody, the above analysis applies. However, you will still have a full and ample opportunity to prove to the court why the move-away you are requesting is in the children’s best interests. This is the legal standard for all initial custody orders made by the court.
When no judge has previously made a child custody and visitation order, then the judge “starts from scratch” (known as a de novo order). In this circumstance, both parents are on the same legal footing, assuming that neither parent has any issues with substance abuse, domestic violence, mental health or other issues which interfere with good parenting and good judgment.
Due to the complexity of move-away cases, before and after trial, it is highly recommended that you seek out the advice of an attorney, particularly if you have difficulty understanding legal phrasing and language, or trial procedures.
Yes. Both parties are required to declare all assets and debts on a “Preliminary Declaration of Disclosure”. This requirement applies to all assets and debts - whether belonging to one party, or both parties. Family Code section 2101 states that each party must provide to the other party an “accurate and complete disclosure of all assets and liabilities in which the party has or may have an interest…and all current earnings, accumulations, and expenses”. The Court has set up specific forms parties are to use for this Disclosure. Assets outside of the state of California are called “quasi-community property”; but, must be declared because one or both spouses “has or may” have an interest in this property.
A restraining order is granted under California’s Domestic Violence Protection Act (“DVPA”). Your spouse’s conduct must include an imminent threat of physical harm to you (or your children) or amount to “coercive control” which “unreasonably interferes” with your “free will and personal liberty.” If you are experiencing conduct from a spouse (or a live-in partner), you may request a Temporary Restraining Order, which will be effective immediately upon service to the restrained person, assuming the conduct is prohibited under the DVPA. At the same time that the court issues the Temporary Restraining Order, a hearing date will also be set to allow both you and the restrained person to testify about the problems. If the judge finds that you are credible and that the restrained person’s conduct is prohibited under the DVPA, the judge will issue a long-term (“permanent”) restraining order for up to three years. If the restrained person violates the Restraining Order, he or she may be subject to contempt and/or extension of the permanent order.
Often, hiring an attorney to represent the person who is asking for the restraining order is very helpful because he or she will make sure you do not have to directly deal with the offending party. If you are the restrained person, hiring an attorney can be very helpful in making sure that only proper evidence is considered by the judge; and, that your side of the story is completely and properly submitted to the judge.
Possibly; but, only in very limited circumstances. If your spouse funds the trust fund using “community” funds (marital assets) during marriage, then you are entitled to a reimbursement of your share of those marital assets. If, however, the spouse funds the trust after division of marital property in a divorce proceeding, then yes, the trust was properly funded. Often, when this happens, the parties will “offset” one asset for another. For example, let’s say that $10,000 of wages earned during marriage were used to fund the trust, and, there is another community savings account with $20,000. In this circumstance, you are entitled to $5,000 from the trust fund and $10,000 from the savings account. Are the two of you required to evenly split both assets? Or, are the two of you permitted to “offset” these assets. In this circumstance, you may equally divide both assets; or, the two of you may agree that you will receive a total of $15,000 from the community savings account, and your spouse would receive the entire trust fund ($10,000) and the remainder of the community savings ($5,000), for a total of $15,000.
Consulting an attorney often helps parties settle cases because of the experience the attorney brings to brainstorm these types of solutions, making an expensive trial unnecessary.
Maybe. Whenever a court issues a court order for child custody and visitation in California, the custody order usually contains a notice that the moving parent must provide the other parent with notice of the intent to move at least 30 days prior to the move. This requirement is found in California Family Code section 3024. Many counties, like San Diego, expand this notice to 45-days.
If your ex was granted sole legal and physical custody by a judge as a temporary (before trial) order, then the legal standard to oppose the move is a little better: “best interests of the child:. In these circumstances, the frequency and extent of parenting time actually exercised by the non-moving parent is very important fact for the judge. An attorney experienced in this topic, which has many, many complicated, and sometimes, contradictory opinions issued by California courts, will educate you about which cases (and which factors) are most important to your case.
On the other hand, if your ex was granted sole legal and physical custody at the end of your divorce, then the legal standard (amount of evidence) may increase, making it easier for the ex to get the court’s permission to move.
In all cases, however, the extent of the non-moving parent’s actual involvement with the child(ren) is key – not labels such as “primary” physical custody. Put differently, the court wants to know and understand your child’s experience with each parent, not adult descriptions of a parenting schedule on paper.
Consulting with an attorney to help you set forth the most important information for your situation may well mean the difference between your success, or your losing, a move-away case. This is very important because, at some point after a move-away is granted, your current court may no longer agree that it should make custody orders, forcing the non-moving parent to litigate custody in the new residential area.
This is a very common question and concern. The chances of losing a house in a divorce which was a home in your name alone depend on your ability to continue to maintain the mortgage payments after the divorce. However, the mortgage payments may have to be larger so that you are able to buy out your spouse’s community interest in the house. How can that be if the house is in your name alone?
This is a complicated area of divorce, and one that does not make sense to a lot of people. Often, the only way to sort out the various resolutions is to contact an attorney who can talk you through the various laws on this topic. For example, it is possible that the marriage (the “marital community”) earned an interest in the home’s equity because mortgage payments during the marriage were paid with earnings of a spouse during marriage. In other situations, the home is in one spouse’s name only because the other spouse had poor credit, or was not working. When this occurs and the home’s equity substantially increased during marriage, the owner-spouse may not be able to afford the mortgage plus the buy-out, and the result is that the house must be sold. This may be considered “lost” in the divorce. You should contact an attorney early in the divorce so that you are aware of the different outcomes based on your particular circumstances.