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 form FL-141.
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, attorney fees, child custody, 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.
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 hidden assets.
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 mediation.
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