What to Expect in DISSOLUTION OR DIVORCE
The following is a summary of the process of your dissolution and terms that you will hear throughout your divorce action. It is important that you contact the office if you have any questions. In order to meet your needs, we need to know your needs. Communication is necessary.
DISSOLUTION: In California a divorce is called a Dissolution of Marriage. The purpose of filing the Dissolution is to obtain orders dividing your property, custody orders for your children, orders for child support, orders for spousal support and to terminate your marital status. Until you marital status is terminated, you are not single and you cannot remarry. The soonest time that your marital status can be terminated is six months from the date one of you is served with the Petition. However, marital status does not automatically terminate after six months as the court must grant a Judgment terminating your marital status.
NO FAULT: California is a no-fault state. This means that either party can obtain a Dissolution or Divorce for any reason even if the other party objects.
PROCEDURE: To begin the Dissolution process, a Petition for Dissolution must be prepared and served on the other party who will then need to file a Response unless you have a complete written agreement. The Response must be filed within 30 days of being served with the Petition. In some cases, an Order to Show Cause may need to be filed to obtain temporary orders for custody, visitation and support before trial. The Order to Show Cause must be served on the other party who must then file a Responsive Declaration to Order to Show Cause.
AUTOMATIC RESTRAINING ORDERS: Once you have signed the Petition for Dissolution or been served with the Petition for Dissolution, you must comply with the automatic restraining orders on the Summons. These automatic restraining orders prohibit you from removing the children from the State of California, canceling or changing insurance and disposing of property. Please read them carefully. If you violate these restraining orders, you may be in contempt of court. Your spouse must also comply with these restraining orders once they have been served with the Petition for Dissolution. If you are in a position where you have an opportunity or need to sell property; there is a change in some property; or, you have an option to sell or trade property, please contact our office immediately so that we can advise you on how to proceed.
DOMESTICE VIOLENCE: If there has been domestic violence, then you may decide to proceed with additional restraining orders. Please contact our office if there has been physical, emotional and/or verbal abuse so we can determine if domestic violence restraining orders are appropriate in your case.
ORDER TO SHOW CAUSE: An Order to Show Cause (OSC) can be filed to request a hearing from The Court for orders. It normally takes six to eight weeks to get a hearing date for these orders. Usually the orders are for custody, visitation, support and attorney fees. The OSC will contain a Declaration that sets forth the facts that support your side of the story or why The Court should give you what you ask. If the OSC is for custody and visitation, you will attend mediation prior to the OSC. This office provides our clients with information on the mediation process. It is recommended that you make an appointment to discuss mediation in more detail. If the other party has already filed an OSC, a Responsive Declaration must be prepared and filed which will also contain a Declaration that sets forth the facts that support your side of the story.
INCOME AND EXPENSE DECLARATION: If you are filing an Order to Show Cause or a Responsive Declaration to an Order to Show Cause regarding child support, spousal support or attorney fees, you will need to file an Income and Expense Declaration. At the Mandatory Settlement Conference and any trial where the court will determine child support, spousal support or attorney fees, you must provide an Income and Expense Declaration to the court. You will be required to provide a completed Income and Expense Declaration (I & E) and to update your I & E repeatedly throughout your case. In order to complete your I & E, you will need your last twelve months income, your tax returns for the last two years and your pay stubs for the prior two months. If you are self-employed, you will also need to provide a recent profit and loss statement. The court rules require that an Income and Expense Declaration needed for a hearing, conference or trial be no more than 90 days old. If your circumstances or income has changed within the 90 days, you are required to file an updated Income and Expense Declaration.
DECLARATION OF DISCLOSURE: You will need to complete a Declaration of Disclosure and update this Declaration as any information changes. The Declaration of Disclosure will include a Schedule of Assets and Debts where you will list the property you own in detail. The Declaration of Disclosure will also include an Income and Expense Declaration. The Declaration of Disclosure is not filed with the court but is served on your spouse. The Family Code of California provides that you and your spouse must disclose all of your assets and obligations. If you fail to disclose the assets truthfully and fully, any Judgment can be set aside and the court may order sanctions against you. The Declaration of Disclosure should be updated regularly as information is discovered or material facts change.
DISCOVERY: Discovery is used to obtain information about your property, your spouse's income and any retirement benefits. Form Interrogatories, Request for Production of Documents, Subpoenas, and Depositions are types of discovery.
MANDATORY SETTLEMENT CONFERENCE: After discovery has been completed, an At-Issue will be filed which, in essence, tells the Court that this matter is ready for trial. The Court will then set a Mandatory Settlement Conference Date (MSC). The purpose of the MSC is for the parties and their attorneys to attempt to resolve all of the issues concerning division of property, payment of debts, support and attorney fees. If there is not a complete agreement, the second objective is to agree on as many items as possible so that those items will not need to be presented to the court for decision. As an example, if an agreement cannot be reached on who will be keeping the residence, an attempt to agree on the value of the residence or the amount owed on the residence as of the date of trial would be made. If a complete agreement is not reached, the court can schedule a specially set Judicial MSC with a Judge. At the specially set MSC, the Judge will attempt to resolve all issues and may set your case for trial on the issues that are not resolved.
TRIAL: Once your case has reached the trial stage, it means that you have been unable to resolve some issues and it is necessary for the court to make the decision. Evidence must be presented to the Court to support your position on the issues. This may require professional appraisers, certified public accountants or other witnesses and even testimony from you and/or your spouse.
TAXES: It is highly recommended that you speak with your accountant or tax preparer about the tax ramifications to you personally before you enter into a settlement agreement or proceed to trial on the property issues.
WILLS AND TRUSTS: If you have a will or a trust, you should review your Will and Trust with an attorney to determine what will need to be done with the Will or Trust in your Dissolution. At the conclusion of your dissolution, you should review the beneficiaries of your life insurance policies, bank accounts and retirement benefits.
TRANSFER OF PROPERTY: Once the Court makes an order, the parties are responsible for complying with the order. If one party is awarded a specific vehicle, the other party should sign off on that vehicle and the vehicle must be transferred into the name of the party who by court order is to receive it. If your spouse is awarded a vehicle in the court order, you must make sure that the proper notice of transfer is filed with the Department of Motor Vehicles. Until this is done, you are personally liable if your spouse should be involved in and accident. The same is true in the transfer of real property. If the court orders one spouse to receive the property the other spouse should sign an Interspousal Transfer deed transferring the property on receipt of any compensating payment.
FAILURE TO COMPLY WITH A COURT ORDER: Until a court order is modified by the court, you must follow the orders. If the other party is not following the court orders, you can enforce the orders either through the court system or with the assistance of law enforcement. If the other party will not follow the court order for visitation of the children, you can take a certified copy of the court order to the police department and ask them to assist you in exercising your visitation time.
HEALTH INSURANCE: If you are currently covered under your spouse's health insurance, it is important that take steps to insure that the coverage continues. An OSC can be filed to insure that your spouse continues to maintain the health insurance coverage for you and/or your children. The court will order that the insurance be maintained until the termination of your marital status. After the termination of your marital status, you may be eligible for continued coverage under COBRA. You should speak to the health plan directly to determine the benefits and the cost of the COBRA conversion upon the termination of your marital status.
RETIREMENT BENEFITS: Retirement benefits that are acquired during your marriage are also community property and may be equally divided between you and your spouse. Often a retirement or pension plan requires a Qualified Domestic Relations Order (QDRO) to divide the benefits.
REPRESENTATION: In California you are not required to have an attorney. If you do not have an attorney you are called "pro per" which means that you are representing yourself. If you are representing yourself, you will be held to the same standard as an attorney. It is highly recommended that you meet with an attorney to discuss your particular issues even if you chose to represent yourself. If you have further questions, please contact our office.