What Is the Divorce Process From Initial Petition Filing, to Requests for
Temporary Orders, to Judgment and the Conclusion of the Case?
My goal is to empower and introduce you, the legal consumer, whether before
you have your initial consult with a competent divorce attorney whom you
select or, in the unfortunate event that you feel you must traverse the
court landscape of relationship-endia as a self-represented party, to
the the basic procedures and remedies that are available to you once a
decision is made to file a marital dissolution. If you know more about
the process you will likely be a better (if a slightly obnoxious) client
and the lawyer you choose will have a more informed and realistic client,
and these things will overall have positive consequences for you. If you
know the divorce procedures and must represent yourself, your odds on
any given skirmish may be vastly improved. That is my hope, anyway.
Caveat: I do not encourage people to represent themselves in their divorce
case, for many reasons. These include the high emotional reactivity of
most people who are faced with the sudden and often unexpected extinguishment
of whatever familiar status quo you've assumed would continue to regulate
your life, the challenge and time investment in attempting to understand
the nuances and complexities about your legal rights and remedies, and
generally the powerlessness of being caught in an adversarial system where
it feels like nobody is listening to you; not the judge, maybe not your
lawyer; sometimes not your children; and certainly not your spouse. California
family law is way too complicated! My belief is that only in amicable
decoupling's, where the assets to be divided are relatively simple
and straightforward, and where conflict is moderate to low, should you
go it alone. It can be difficult or impossible to unring the bell where
critical mis-steps are made. I can cite scores of examples of how people
who later sought me out often arrogantly or naively thought they could
handle their matter, only to blow themselves up in ways that threatened
to echo financially, or relationally with children, for years to come.
Your choices right now are fraught and important - if you've found
yourself here because you've encountered unexpected difficulties or
unfortunate outcomes, you know what I mean.
If you need a simplified overview of substantive financial rights as a
result of your marriage, please visit this blog. We have scores of articles throughout this site dealing with more complex
situations, including dozens of tips and how-to's, accessible through
our on-board search engine at the upper right of each page,
our FAQs, our
California Family Law statutes and court rules pages, our
Family Law Form Library which offers exemplar pleadings on a number of subjects, our Blog Categories
at the left panel, and so much more.
We are nearing 2,000 pages of articles and while we do our best to make
finding them easy, you may need to nose around a bit to get what you need
to learn. Please, please, please understand that this blog is simply an
overview to familiarize you with the basic stuff!
Commencing the Divorce: Filing the Petition and Automatic Temporary Restraining Orders
In California family law there are dozens of pre-printed forms that have
been generated by the (our State-level) Judicial Council, some of which
are mandatory and must be used and others which are discretionary, and
may be used, so long as you provide substantially the same information
that they set forth in another acceptable pleading. Many are contained in our
Family Law Forms Library.
Preparing and Filing the Petition for Dissolution
Contrary to popular belief, other than as to the emotional implications
between you and your spouse, there is no negative consequence in family
court from being the "Petitioner," the person who initiates
the dissolution proceeding, as opposed to the Respondent. The Petition
for Dissolution is Judicial Council form
FL-100. There are boxes to be checked, and information to be filled out, and
what you place in the Petition is very important because you are setting
a jurisdictional menu of the relief you are asking the Court to grant
you - you are also giving notice to the other party of what you are requesting,
and procedural due process requires you to notify that party what you
may want the Court to do. For instance, unless you are a higher-earner
and reasonably expect that will also be true, you will want to check the
box that requests spousal support and another that requests attorney fees.
In all cases you will want to check the box that requests the Court to
terminate jurisdiction to order you to pay spousal support to them, even
if that is not what you really want or expect. You will also need to list
and identify what you contend is your separate property, and what you
believe the community property consists of. Going through each box is
beyond the scope of this blog. The power of the Court to give you what
you request is limited by the information and requests set forth in your
Petition. If you screw it up and fail to check a box, or circumstances
change later that result in your now wanting or needing relief that you
did not initially request, you must amend your Petition and then check
the applicable boxes in that. You have an automatic right to file an Amended
Petition once as a matter of right, so long as the other party has not
yet filed their Response; once they have filed their Response, you can
only file your amended Petition upon a Stipulation that is filed with
the Court allowing you to do so, or you will have to file a Motion to
Amend seeking an order allowing you to make the amendments which will,
except in extreme situations involving a huge passage of time or some
prejudice to the other party, be granted.
The Petition must be accompanied by a Summons,
FL-110, that is issued by the clerk of the court when the action is filed. The
Summons and Petition together with a blank
Response form FL-120, must be personally served upon the other party unless they are willing
to sign a Notice and Acknowledgment of Receipt, in order to give the court
jurisdiction over them. You cannot, yourself, properly serve any document
in a divorce case where the other party doesn't receipt for it in
some fashion. Any person who is over the age of 18 can sign a proof of service.
The other party has 30 days from the date of service to file their Response
(which can be served upon you by mail). However, if they don't file
it within 30 days, nothing further happens unless and until you request
entry of a default. Filing a Request to Enter Default is not a good idea
where you are trying to remain amicable and maybe negotiating a settlement,
but may be appropriate where the other party is realistically not expected
to be participating in the proceedings. Playing gotcha timing games is
a waste of everyone's money and resources, because the other party
can move to set aside the default - at least within the first six months
after it was filed, per
CCP section 473, and for a longer period if a claim is made that they were never really
served and that someone, you or your process server, is attempting to
falsify the claimed service of the summons and petition.
Automatic Temporary Restraining Orders (ATROS) - Family Code Section 2040
A divorce summons sets forth certain automatic temporary restraining orders per
Family Code section 2040 which become effective, as to you, the moment you sign
and file your Petition. They become effective as to the other party the moment
they are served. These restraining orders prohibit a range of financial
activities except in the "ordinary course of business" directed
to, essentially, destroying or concealing or borrowing against community
and separate property assets. They expressly permit you to liquidate accounts
to pay to divorce counsel. Violating ATROS may constitute a breach of
fiduciary duties, and subject the violator to penalties and sanctions.
We've written scores of articles about
fiduciary duty issues, and you may want to read
Part 1 of this series. Again, this is a simplistic overview and there is so much more to learn,
and we've laid it all out if you have the time and energy to click
around our site!
What Are Preliminary Declarations of Disclosure?
Within 60 days of filing the Petition, the Petitioner is required to serve
upon the other party a Preliminary Declaration of Disclosure (PDD), per
Family Code section 2104. Again, you will find dozens of articles about
PDDs on this site. This is an important document relating to fiduciary disclosure
obligations that are a key to California matrimonial law. Likewise, within
60 days of filing their Response, the other party is required by section
2104 to serve their own. The PDDs do NOT get filed with the Court! After
all, they contain highly personal information that you don't want
the public to know about. Instead, what gets filed with the clerk's
office is the Declaration of Service of the PDD. This is the
Requests for Pendente Lite (Temporary) Orders
Once a case has been filed, or together with the Petition (or Response)
when they are filed, you are free to seek a wide ranging series of orders
that run the gamut from
temporary spousal support,
child support, control of property, specific (non DV)
restraining orders that go beyond the ATROS, and basically anything else that is necessary
to protect people or property. These used to be called OSC's and now
they are known as RFO's -
Requests for Orders. As with the Petition, the boxes you check and the relief you ask for
in your RFO sets the "menu" for what the Court is asked to decide
and issue orders concerning. The due process rights of the other party
requires that the Court not exceed the scope of what you yourself raised.
The party who opposes the RFO requests must themselves draft, file, and serve an
FL-320 Responsive Declaration stating their position on the issues raised by the moving party. That
Responsive Declaration cannot seek relief outside the menu of what the
RFO paperwork requested. For instance, if the other party just checked
the boxes for child support, the responding party cannot raise the issue
of attorney fees. Those must be raised by an independent RFO request filed
by the responding party.
Depending upon the congestion of your local county court, a hearing will
be be set anywhere from 21 days to months for a hearing on your RFO. If
child custody is involved, a
Child Custody Recommending Counselor (CCRC) mediation session will be set on the next date open and available for that department of
the court; this can be weeks down the road but before the RFO hearing
itself. The goal of CCRC mediation is that the parent's themselves
some up with a mutually acceptable parenting plan that will become a court
custody and visitation order. In some counties the CCRC department must
provide a Memorandum to the Judge, which the parties also receive, setting
forth the parties' positions and the evaluators observations and recommendations.
In other counties they are not required to communicate with the Court
about how the session went, whether or not the parties reach an agreement.
An RFO involving requests for money, and in particular child or spousal
support and/or requests for a contribution to attorney fees, much be accompanied
by an Income and Expense Declaration - the
FL-150 Judicial Council Form. That form requires certain documents to be attached to it (like paystubs
and cash flow statements), or that you bring some to the Court hearing
(like tax returns). Requests for spousal support require additional optional
forms, or your supporting declaration must hit the same notes and present
the same evidence as the forms mention, and specifically that includes
Judicial Council Form FL-157. If you are seeking attorney fees in a marital dissolution, you most use
- or address the same information in your declaration - as what is contained in the
FL-158. Basically both these forms address
Family Code section 4320, which is the key California statute for addressing judgment spousal support.
Want to learn about filing and service deadlines affecting RFO applications?
What Happens After Temporary Orders Issue?
My experience is that there is a lot of turmoil and upset up to the hearing
on RFO requests, because one or both parties are butt-hurt and resentful
as Hell. All of their support people have told them their (perceived)
experiences and what they think they know, and the litigants have a heavy
investment in these sometimes narcissist views. Often, this requires that
the parties have the Court step in and rule, and thereby to realistically
reset the parties' expectations. The good news is that in 90% of cases,
once you get past this point, people tend to settle down and accept the
inevitable or at least a fair market approximation of it. Though not all,
to be sure - and those others are the ones who reflexively spend tens
of thousands of dollars on attorneys, to their own obvious detriment.
The intransigent ones are the people you read about in our
new important case blogs. Funny, a bunch of them are self-represented attorneys. LOL, go figure!
But most cases become amenable to settlement sometime after these orders
issue, though not all.
Besides the Declarations of Disclosure, which also include a
Final Declaration of Disclosure per
Family Code section 2105,
et seq. (unless waived), where further and more detailed information about community
and separate property assets and obligations, and community opportunities,
must be disclosed, medium to high conflict cases will require"discovery" to be conducted on a whole set of differing potential levels. Again, we
have dozens of articles about those processes. This made lead to further
RFO motions, or
motions to compel forthright answers to any number of questions - like those relating to
Mediators and Temporary Judges
In some counties, like Los Angeles especially, the trial courts are sick
and tired with being bothered by crazy rich and/or narcissistic people,
and basically take the position that those folks who can afford it should
be forced into a mediation, or to hire temporary judges. Which is a good
thing for the litigants, in so many ways, including access to justice
that dedicates a retired expert judge or lawyer to their case. Most of
those cases resolve, eventually. I highly recommend retired judge,
Hon. Gretchen W. Taylor, as someone you might want to consider - who has a spiritual and holistic
foundation in helping complicated dissolutions reach fair resolutions.
Temporary judges are given the authority to act as Superior Court judges,
and their rulings are just as binding as that of a government employed
bench officer. Mediators, however, are only advisory and no one can be
forced to settle in
Requests to Set and Mandatory Settlement Conferences
But, in any event, if the only method of resolution is through the Court
inspired and controlled adversary litigation template, or if you cannot
afford fancy mediators or temporary judges, the next step for a case that
apparently cannot be settled is to file a Request to Set the Case for Trial.
This will trigger the court clerk to assign a mandatory settlement conference
(MSC) date, where you will be required to go to court and meet either
with a voluntary settlement officer or a judge, possibly the judge on
your case but more likely another one at the same courthouse.
If this opportunity to settle the case fails, then you will finally get
a trial date assigned to you, sometime down the road.
Court Trials, Marital Settlement Agreements or Stipulated Judgments
So, either you two are going to reach an agreement when one or both of
you are exhausted or broke, or you are going to trial. Marital Settlement
Agreements (MSAs) or Stipulated Judgments or the two ways that an enforceable
settlement gets reached. Otherwise, you are headed for a costly court
trial - which higher asset-ed parties sometimes want to force in order
to starve the out-spouse out. If the latter is what you or the other party
wants, I've just written a
3-part series on the basic overview of Appeals if it turns out badly.
But, and this is true, if you need to really have a divorce court trial
to resolve your issues, you are a "one-percenter"! In all likelihood,
you opted out of the system on one of the earlier stages discussed above
when everyone became more or less realistic. That is my hope for you, anyway.
Good luck out there! Please give us a FB like if we earned it - this tells
us what you want us to write about!
Author: Thurman W. Arnold III