The Divorce process in California, an overview

The Divorce process in California, an overview

The case is initiated by either husband or wife [it usually makes no difference legally or strategically who files first (unless your filing for emergency orders)]. The person to file first is called the Petitioner, and the other party is the Respondent. One of the parties must have resided in California for 6 months, and in the county where the petition is filed for 3 months, prior to filing of the petition.

The case is commenced with the filing of a petition and a summons. The petition is a form which contains the statistical facts of the marriage [date of marriage, date of physical separation; general list of separate and community property; list of minor children of the marriage]; the statutory reason for the divorce [irreconcilable differences]; and a request for relief [the dissolution of the marriage; possibly support, attorney fees and division of debts and property].

The court returns what are called, endorsed, filed copies of the summons and petition bearing a court stamp showing that the papers have been filed with the court, the date they were filed, and the assigned case number.

The petitioner then has the Respondent served [usually handled by the attorney who hires a process server], and once served, the Respondent has 30 days to file a response, unless the respondent is granted an extension of time to file the response. Where it is likely that the parties will be able to work out an agreement (or are in agreement) resolving all issues, it is common to grant the Respondent an open extension while the agreement is being worked out.

If there are issues of spousal and or child support, or child custody and visitation, it is common to file a Request to obtain temporary orders on these issues while the divorce case is pending. Thus, one can obtain support and establish custody and visitation right at the beginning of the case. When such orders are sought these papers are served along with the petition and summons.

Although the court can grant the judgment as soon as the parties have reached an agreement as to all issues and have filed all required paperwork, the parties cannot be restored to their status as single persons until the court has had jurisdiction over both parties for six (6) months. The six month period begins on the date that the Respondent is served with the summons and petition. [and NOT on the date that the papers are filed]

If the parties cannot settle all the issues, the case will be set for various pretrial court hearings. Most courts set status conferences dates, sometimes called a "Case Management Conferences," or just Status Conferences." At these hearings, the court finds out where the case is at procedurally, and may require certain discovery to be completed by a certain date, and often requires that the parties and attorneys meet and try to work out a settlement prior to the next hearing. It is not uncommon for the court to schedule further status conferences, to review what progress, if any, has been made with respect to the court's prior directives.

Thereafter, if the parties have been unable to work out an agreement, the case is usually set for a court settlement conference. The attorney must prepare, file and exchange detailed settlement conference statements setting forth the issues and contentions, prior to the hearing. Sometimes the court will actually sit down with the parties and attorneys, but often the parties and counsel are required to meet at the court to discuss settlement and then report to the court the status of the negotiations. On the other hand at the settlement conference the court will often reveal some opinions on the issues, in the hopes that those opinions will facilitate a settlement.

Whether the parties can work out an agreement or not, each spouse must complete and exchange detailed financial disclosures [including an Income & Expense Declaration, and a Schedule of Assets and Debts].

If no agreement is reached the court will set the case for a trial before a judge. Most Bay Area Family Law courts require detailed (and thus expensive) pretrial briefs and declarations which set forth the expected testimony and a list of the exhibits to be used at trial, served and filed a week or so before trial. Any exhibits or witnesses not included in the pretrial briefs and declarations are excluded from use at the trial.

Sometimes the court will issue its ruling right at the end of the trial [with one of the attorneys writing up the judgment], but more often, the court takes the case under submission and issues a written judgment some days or weeks later.

If  you have further questions regarding divorce and related issues, please contact Martin "Jamie" Elmer, family law attorney in Berkeley, California, at (510) 644-2411 or by email, for a free initial consultation.