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Despite the numbers, divorce is a reality for many. If you and your spouse are heading towards separation, do you know what steps to take next? If you’ve ever wondered about the process of a typical family law matter in California, you’ve come to the right place. As a caveat, your case may not go through every procedural step detailed in the blog below, but if the matter were to go all the way through litigation, this might be what it looks like.
This may seem surprising, but the divorce rate in the United States has steadily been dropping for the past 40 years, ever since it peaked at about 40% around 1980. Marriage rates have been declining in part because younger generations have waited longer to get married, but researchers have also found that typical marriages still have about a 50% chance of lasting—a figure that has been widely debated.
Usually, the first thing you should do is hire a family law attorney. This requires setting up a consultation, which is essentially a meeting where you and the lawyer get to know each other on a professional and personal level. You must openly discuss your situation and every detail in between, and if the attorney feels that the case is a good fit, they may offer a tentative game plan to help you achieve your legal goals. If both you and the attorney come to a mutual understanding and decide to work together, a retainer agreement is signed and the attorney then represents you.
Filing of Summons and Petition
Once you have found legal counsel, the next step is to prepare and file a summons & petition with the court, and then have it served on your spouse.
The Summons is a legal document, commanding a person’s appearance in court. Within the Summons are “Automatic Temporary Restraining Orders” (ARTOS), which prohibits each party from doing certain things, such as taking children out of state or changing the beneficiary designation on any insurance.
The Petition is a form that identifies the legal issues before the court. It requires statistical facts about the marriage, information about the children (if there are any), the legal grounds for filing, child custody and visitation, child support, separate and community property claims and any other issues which may be relevant.
After service of the Summons and Petition have been completed, a response is required within 30 days. Thee Response is a minor copy of the Petition, containing the same items, like statistical facts about the marriage, information about the children (if there are any), legal grounds, custody and visitation, child support, separate and community property claims, and any other request.
Preliminary Declarations of Disclosure
FL-140: Declaration of Disclosure
Within 60 days of filing the Petition, you must prepare and serve a Preliminary Declaration of Disclosure. Each party has an affirmative duty to disclose all assets and liabilities, including copies of your tax returns, valuations of community property, statements of material facts of things which the community is liable, and any income opportunities from the date of separation that took place during the marriage. Moreover, each party owes a fiduciary duty to the other, regarding all assets and liabilities until the properties have been divided.
Requests for Orders Pending Litigation
If applicable and necessary, a request to the court can be made for orders for child support, spousal support, child custody and visitation, and restraint of a spouse, including Domestic Violence Temporary Restraining Orders.
Each party is entitled to information from the other party or 3rd parties through Discovery. If the parties cannot settle the case, then they must prepare for trial by offering evidence through the use of discovery tools, such as oral dispositions and deposition subpoenas.
Trial Setting Conference
Once Discovery is completed and the parties still cannot settle a trial setting conference will be set by the court. A trial setting conference, sometimes known as a trial readiness conference, is for the judge to determine whether the case is ready for trial and to ensure that discovery is complete and that all of the disclosure documents have been enhanced.
Mandatory Settlement Conference
Generally, a mandatory settlement conference will be scheduled prior to issuing a trial date. Both parties are generally required to appear in court and make a good faith effort to resolve the issues.
Final Declaration of Disclosure
The final declaration of disclosure is a financial disclosure that each party must provide to the other side, consisting of an income and expense declaration, as well as a schedule of assets and debts. It’s much like the preliminary declaration of disclosure, except that it must be filed forty-five days before trial and it must contain accurate values.
Trial takes place when no settlement can be reached. During trial, all disputed issues that could not be solved at both the voluntary and mandatory settlement conferences are heard. A single judge makes all the decisions on your family law issues. In recent years, the court has been unable to accommodate enough time for all the cases currently pending, and piecemeal trials may take several months to complete.
An appeal is when the losing party asks the court of appeal to review the case. The losing party must show that the trial court made a mistake to overturn the ruling. An example might be awarding sole custody to a parent convicted of multiple counts of sexual assault on the child, despite strong evidence demonstrating the capability of the other parent.
Post Judgment Modification
Divorce courts have jurisdiction to modify child support orders, child custody matters, and most spousal support maters when there are substantial changes in circumstances, such as change in income or living situation. Discovery is often initiated again to gather evidence to prove the change in circumstances.
That’s the family law process in a nutshell! As you can see, family law covers a broad spectrum of areas, ranging from extensive paperwork filing to resolving complex financial and child custody issues stemming from divorce. If you are experiencing a complex set of factors as your family transitions, please contact our Irvine family law lawyers at Sullivan Law & Associates today to learn more.
Call (949) 565-2793 or contact us online for a consultation.