Divorce in California: The Legal Process, Your Rights, and What to Expect
245
Divorce in California: The Legal Process, Your Rights, and What to Expect
245eBook
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Product Details
| ISBN-13: | 9781938803857 |
|---|---|
| Publisher: | Addicus Books |
| Publication date: | 06/01/2013 |
| Series: | Divorce In |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 245 |
| Sales rank: | 561,253 |
| File size: | 1 MB |
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Divorce in California
The Legal Process, Your Rights, and What to Expect
By Debra R. Schoenberg, Jennifer L. Knops
Addicus Books, Inc.
Copyright © 2013 Debra R. Schoenberg and Jennifer L. KnopsAll rights reserved.
ISBN: 978-1-938803-85-7
CHAPTER 1
Understanding the Divorce Process
The process of ending a marriage or registered domestic partnership often creates a feeling of utter chaos and a sense of despair. Understanding the process for dissolving such relationships, which is functionally identical for both same and opposite sex, can bring some predictability and, in turn, a sense of comfort. The outcome of many aspects of your divorce may be unknown, increasing your fear and anxiety. But there is one part of your dissolution that does have some measure of predictability, and that is the dissolution process itself.
Most divorces proceed in a step-by-step manner. Despite the uniqueness of your divorce, you can generally count on one phase of the dissolution process following the next. It is also helpful to understand that obtaining a divorce is a process that unfolds over time. Just realizing you are completing stages and moving forward with your divorce can reassure you that the process will eventually come to a conclusion.
It is also important to note at the outset that the emotions of the parties, more than the applicable law, drive much of the divorce process. You are strongly encouraged to apply your intellect and reasoning to the decisions that you make as you proceed, and to refrain from letting the hurt and pain that may follow relationship endings to guide you. Leading with common sense will undoubtedly expedite resolution of your case, and you will look back on this experience as one that you handled with grace.
Developing a basic understanding of the dissolution process will lower your anxiety when your attorney speaks of depositions, motions, and going to trial. The object of this book is to provide you with that understanding, to reduce your frustration with the length of the process, and to increase your awareness of the steps necessary to conclude your matter. These pages will support you in preparing for what comes next. Most importantly, understanding the dissolution process will make your experience easier.
1.1 What steps are taken during the divorce process?
The divorce process in California typically involves the following steps.
If you are initiating the divorce:
• Obtain a referral for a lawyer.
• Schedule an appointment with an attorney.
• Prepare questions and gather necessary documents for an initial consultation.
• Meet for an initial consultation with an attorney.
• Pay the attorney a retainer and sign a retainer agreement.
• Provide requested information and documents to your attorney.
• Take other actions as advised by your attorney, such as opening or closing financial accounts.
• Attorney prepares the summons and petition for dissolution for your review and signature.
• Attorney files the summons and petition with the clerk of the court.
• Attorney serves the summons and petition on the respondent.
• If interim relief (such as temporary child support, spousal support, or attorney fees) is appropriate, attorney prepares motion papers for your review and signature, files with the court, obtains court date, and serves pleadings on respondent.
If you have been served with divorce papers:
• Obtain a referral for a lawyer.
• Schedule an appointment with an attorney.
• Prepare questions and gather necessary documents for an initial consultation.
• Meet for an initial consultation with an attorney.
• Pay the attorney a retainer and sign a retainer agreement.
• Provide requested information and documents to your attorney.
• Take other actions as advised by your attorney, such as opening or closing financial accounts.
• Attorney prepares a response to the summons and petition for your review and signature.
• Attorney files your response with the clerk of the court within thirty days of service of the petition and summons on you.
• If you are served with requests for interim relief, your attorney prepares your response to these moving papers.
After an action has been commenced and the response filed:
• With the assistance of your attorney, you need to prepare financial disclosure documents (income and expense declaration and preliminary schedule of assets and debts).
• Negotiations begin regarding temporary custody and visitation, child and spousal support, payment of community obligations, and attorney fees.
• Attorney prepares moving papers for any requests for temporary relief not previously made.
• If there are minor children, the parties comply with any local rules or court orders to attend parent orientation and to participate in mandatory mediation.
• Court holds hearing(s) held on requests for temporary relief.
• Either the parties reach an agreement or the court issues temporary orders.
• Temporary order is prepared by one attorney, approved as to form by other attorney, and submitted to the judge for signature.
• Both sides conduct discovery — the process designed to obtain information regarding all relevant facts, and commence the process to exchange valuations of all assets, including expert opinions if needed.
• You confer with your attorney to review facts, identify issues, assess strengths and weaknesses of case, review strategy, and develop a settlement proposal.
• Spouses, with the support of their attorneys, attempt to reach agreement through written proposals, mediation, settlement conferences, or other forms of negotiation.
If you reach an agreement on all issues, then:
• One attorney prepares marital settlement agreement and necessary judgment paperwork.
• Both parties and their attorneys sign agreement and all necessary paperwork.
• Judgment paperwork is filed with the court.
• Either the parties waive the court date or the court holds a brief, final hearing.
• Judgment is entered and you will be divorced.
• Your attorney completes necessary orders and supervises the property transfer until all agreed terms are satisfied.
If you are unable to reach an agreement on all issues, then:
• Your attorney completes all necessary discovery to bring the case to its trial-ready point.
• Your attorney files an at-issue memorandum to obtain trial dates.
• If agreement has been reached on any issues, your attorney prepares a stipulation on those issues. All other issues are set for trial.
• You work with your attorney to prepare your case for trial.
• Your attorney prepares witnesses, trial exhibits, legal research on contested issues, pretrial motions, trial briefs, direct and cross-examination of witnesses, opening statements, witness subpoenas, and your closing argument.
• You meet with your attorney for final trial preparation.
• Trial is held.
• Your attorney requests a statement of decision.
• The judge issues a tentative statement of decision and directs the statement to be prepared.
• Both sides make any objections they have to the statement of decision. If appropriate, the court sets the matter for hearing.
• The judge signs the final statement of decision and judgment of dissolution, dissolving your marriage or domestic partnership.
• The attorneys supervise any property transfers until all agreed terms are satisfied.
Your post-trial rights are discussed in the section on appeals.
1.2 Must I have an attorney to get a divorce in California?
You are not required to have an attorney to obtain a divorce in California. However, it is very important to have the adequate assistance of counsel in dividing your marital estate. This is particularly true for clients with significant individual and marital investments and debt, including:
• Investment assets, stock portfolios, and/or trusts
• Pensions and retirement accounts
• Stock options
• Family-owned businesses and closely held corporations
• Significant business or corporate interests
• Professional practice interests, inventory, and investments
• High-value homes
• Multiple real properties
• IRS tax debt
• Credit card debt
If you are considering proceeding without an attorney, contact the family court in which the action will be pending to determine whether there are any clinics available to assist you. If you proceed without an attorney, you will be referred to as being in pro per, a Latin term meaning "for oneself."
1.3 What is my first step?
Find a law firm that handles divorces as a regular part of its law practice. The best recommendations come from people who have knowledge of a lawyer's experience and reputation.
Even if you are not ready to file for divorce, call to schedule an appointment right away to obtain information about protecting yourself and your children. Even if you are not planning to file for divorce, your spouse might be.
Ask what documents you should take to your initial consultation. Make a list of your questions to bring to your first meeting. Start making plans for how you will pay your attorney to begin work on your case.
1.4 Is California a no-fault state or do I need grounds for a divorce?
California, like most states, is a "no-fault" divorce state. This means that neither you nor your spouse are required to prove that the other is "at fault" in order to be granted a divorce. Factors such as infidelity or cruelty are not necessary or appropriate to receive a divorce in California. The court will not accept evidence of fault. You must prove only irreconcilable differences to have your marriage or domestic partnership dissolved. Under an extremely rare circumstance, such as the disappearance of your spouse, you may plead willful abandonment as grounds for divorce.
The testimony of either you or your spouse, stating that irreconcilable differences necessitate the dissolution, is usually sufficient evidence for the court to rule that the marriage should be dissolved.
1.5 Do I have to get divorced in the same state I married in?
No. Regardless of where you were married, you may seek a divorce in California if the jurisdictional requirements of residency and venue, set forth in the next answer, are met.
1.6 How long do I have to have lived in California to get a divorce in the state?
Either you or your spouse must have been a resident of California for at least six months to meet the residency requirement for a divorce in California. If neither party meets the residency requirement, other legal options are available for your protection, such as a legal separation, a petition for a custody and support order, or a protection order.
However, the law presently provides that registered domestic partners who have moved from California may still have their partnership dissolved in this state, even if neither party resides in this state.
1.7 My spouse has told me she will never "give" me a divorce. Can I get one in California anyway?
Yes. California does not require that your spouse agree to a divorce. If your spouse threatens to withhold a divorce, know that in California this is an idle threat without any basis in the law.
Under California law, to obtain a divorce, you need only prove irreconcilable differences. In short, it is not necessary to have your spouse agree to the divorce, or to allege the specific difficulties that arose during the marriage, to obtain a divorce in California. In fact, neither party is permitted to raise those difficulties in court.
1.8 Can I divorce my spouse in California if he or she lives in another state?
Provided you have met the six-month residency requirements for living in California, you can file for divorce here, even if your spouse lives in another state.
Discuss with your attorney the facts that you will need to prove, and the necessary steps, for you to have given your spouse proper notice. This will ensure that the court has jurisdiction over your spouse. Your attorney can counsel you on whether or not you can proceed with the divorce.
1.9 How can I divorce my spouse when I don't know where this person lives now?
California law allows you to proceed with a divorce even if you do not know your spouse's current address. First, attempt to locate your spouse. Contact family members, friends, former coworkers, or anyone else who might know your spouse's whereabouts. Utilize resources on the Internet that are designed to help locate people.
Let your attorney know of all of the efforts you have made to attempt to find your spouse. Inform your lawyer of your spouse's last known address, as well as any work address or other address where this person may be found. Once your attorney attempts to give notice to your spouse without success, you can publish your notice in a newspaper, and ask the court to find this notice proper and let you proceed with the divorce.
1.10 I just moved to a different county. Do I have to file in the county where my spouse lives?
You may file your divorce petition either in the county where you reside or in the county where your spouse or domestic partner resides, provided that either of you satisfies the three-month county residency requirement.
1.11 I immigrated to California. Will my immigration status stop me from getting a divorce?
If you meet the residency requirements for divorce in California, you can get a divorce here notwithstanding your immigration status. Talk to your immigration lawyer about the likelihood that your divorce will lead to immigration challenges.
If you are a victim of domestic violence, tell your lawyer. You may be eligible for a change in your immigration status under the federal Violence Against Women Act.
1.12 I want to get divorced in my Indian tribal court. What do I need to know?
Each tribal court has its own laws governing divorce. Requirements for residency, grounds for divorce, and the laws regarding property, spousal support, and children can vary substantially from state law. Some tribes have very different laws governing the grounds for your divorce, removal of children from the home, and cohabitation.
Contact an attorney who is knowledgeable about the law in your tribal court for legal advice on pursuing a divorce in your tribal court, or on the requirements for recording a divorce obtained in state court with the clerk of the tribal court.
1.13 Is there a waiting period for a divorce in California?
Yes. California has a mandatory waiting period of six months plus one day. This waiting period begins on the day that the respondent is determined to have been given legal notice of the action for dissolution. This date is either:
• the day that the sheriff or another third party personally serves the respondent, the person who did not initiate the legal process for divorce;
• the date that the respondent files with the court a Notice and Acknowledgement of Receipt, acknowledging that he or she was served with the summons and petition; OR
• the date that the respondent appears in court.
1.14 What is a divorce petition?
A divorce petition, also referred to as a "petition for dissolution of marriage or registered domestic partnership," is a document signed by the person filing for divorce, and filed with the clerk of the court to initiate the process. The petition will set forth in very general terms what the petitioner is asking the court to order. This is not a request for relief, but is the document necessary to commence your action. (See sample petition on pages 10–11)
1.15 My spouse said she filed for divorce last week, but my lawyer says there's nothing on file at the courthouse. What does it mean to file for divorce?
Filing for divorce means filing a summons and petition for dissolution with the clerk of the court. This process commences the dissolution action.
Sometimes a person who has hired a lawyer to begin a dissolution action uses the phrase "I've filed for divorce," although no papers have yet been taken to the courthouse to start the legal process. Retention of counsel is an important step in the dissolution process, but until the summons and petition are filed with the court, a divorce is not formally commenced.
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Excerpted from Divorce in California by Debra R. Schoenberg, Jennifer L. Knops. Copyright © 2013 Debra R. Schoenberg and Jennifer L. Knops. Excerpted by permission of Addicus Books, Inc..
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.
Table of Contents
Contents
Introduction,1 Understanding the Divorce Process,
2 Coping with Stress during the Divorce Process,
3 Working with an Attorney,
4 Attorney Fees and Costs,
5 The Discovery Process,
6 Mediation and Negotiation,
7 Emergency: When You Fear a Spouse,
8 Child Custody,
9 Child Support,
10 Spousal Support,
11 Division of Property,
12 Benefits: Insurance, Retirement, and Pensions,
13 Division of Debts,
14 Taxes,
15 Going to Court,
16 The Appeals Process,
17 Marvin Actions,
18 Domestic Violence,
In Closing,
Resources,
Glossary,
Index,
About the Authors,