The process for divorce in a California depends on whether the divorce is contested or uncontested. In either type of case, a timely response is filed and served. In an uncontested divorce, the parties will work to settle any disputes either on their own, through their attorneys, or through mediation. The goal is to avoid litigation altogether. In a contested case, there typically follows litigation that may involve discovery requests, requests for orders and even trial.
Contested and Uncontested Divorce
In both types of cases, in addition to the divorce papers, the other party is also served with a summons. On the back of a California summons are Automatic Temporary Restraining Orders or ATRO’s. These immediately go into effect on the respondent once the divorce papers are properly served. They prevent either party from moving, destroying or concealing any major assets of the marriage, prevents either party from making any large purchases or sales of marital property, and also requires that neither party alter any insurance benefit designations for the other party or their children.
After serving divorce papers in an uncontested case, typically the response is served. Most divorce responses also affirmatively ask for a divorce. California law doesn’t require both spouses to agree to a divorce. If one spouse wants it, that is enough.
Next, the preliminary declaration of disclosure after divorce papers are served. This consists of several forms, the two most important ones being the Income and Expense Declaration and a Schedule of Assets and Debts. This is the first opportunity for both parties to disclose everything that is community property or separate property as well as list all of the income and expenses. California law is strict on nondisclosure – hiding or misrepresenting assets or lying on an income and expense declaration can lead to penalties.
Following disclosures, the parties should be fully aware of the assets and debts of the marriage and of each parties’ separate property. This allows the parties to begin informed settlement communications. Depending on how long the settlement process continues, some parties also serve final disclosures before obtaining a judgment from the court. However, parties have the option of waiving final disclosures if they don’t see a need to update their disclosures. The decision to waive final disclosures depends on the specific facts of the case.
The divorce judgment is the final document that settles all of the divorce issues and lays out the terms and conditions of the divorce including but not limited to custody, child support, spousal support, property and debt division.
In a contested case, the response, preliminary and final declarations of disclosure are typically the same as an uncontested case. At this time, either party may file a Request for Order and seek temporary orders. These temporary orders can include child custody, visitation, child support, spousal support, attorney fees, as well as any emergency family law orders.
The Discovery Process
The discovery process typically begins next. Discovery is the formal request for information by one spouse to the other spouse. These can include interrogatories (questions for the other party to answer), requests for production of documents, requests for admissions from the other party, and depositions under oath. These are not all of the discovery tools available but they are the most common.
Parties often request attorney fees to be paid for by the other party. There are different types of attorney fee requests. The two most common are “need based” and sanctions. The “need based” requests focus on a spouse’s need for attorney fees and the other spouse’s ability to pay it. These fee requests can also be made against liquid community or separate property funds or even request the sale of assets to pay for fees. The second type are called “sanction” requests and the most common type is from Family Code 271. These requests have no “need” basis but they also cannot cause “an unreasonable financial burden on the party against whom the sanction is imposed.”
Just because a case is contested doesn’t mean the parties can’t settle as many issues as possible before trial. Some issues may be resolved to at least make the trial less costly for everyone. If a spouse refuses to engage in settlement discussions or makes unreasonable offers, documenting that is important for the Family Code 271 sanctions request or, for the higher earning spouse, avoiding attorney fees by showing the other spouse has caused unnecessary fees to be incurred.
Finally, the trial is held and both parties present evidence on the issues before the court. The judge makes final orders and enters a judgment for divorce. If you are prepared to file for a divorce, contact an attorney at Cage & Miles, LLP to discuss the filing, discovery and settlement process for your case.