The process of getting a divorce in California starts by one of the spouses filling out and filing with the Superior Court a Petition for Dissolution of Marriage (judicial council form FL-100) and Summons (FL-110). If minor children are involved, then the spouse filing for divorce must also fill out and file a Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) – judicial council form FL-105/GC-120. If you are represented by a family law attorney, then he or she will collect the factual information from you, and will facilitate the filing process.
Once the Superior Court accepts the Petition, Summons (and UCCJEA if the parties have minor children), the Court will assign a case a number and will issue a case assignment. In a “direct calendar” court the judge your case has been initially assigned to and have been working with will schedule the trial and will also preside over it. In a “master calendar” court you may have to see a number of different judges throughout the divorce process. Santa Barbara County is a direct calendar court; therefore, your case will be assigned to one department and one just from start to finish.
Upon receipt of the conformed copies of the Petition and Summons from the Court, you (if you are self-represented) or your family law attorney will have to effectuate service upon your spouse. Your spouse will have 30 calendar days to file his or her Response (FL-120). If minor children are involved, the Respondent must also file and serve his or her own Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) – judicial council form FL-105/GC-120.
Thereafter, both spouses must exchange his and her Preliminary Declaration of Disclosure consisting of each party’s Income & Expense Declaration (FL-150), Schedule of Assets and Debts (FL-142), and the party’s last two years of income tax returns. The preliminary financial disclosure process is mandatory in California, and the Court will not enter judgment on dissolution of marriage unless both parties have exchanged their preliminary disclosures. In fact, under Family Code section 2104, the Petitioner shall serve the other party with the preliminary declaration of disclosure either concurrently with the Petition for dissolution or legal separation, or within 60 days of filing the Petition.
The financial disclosure process must be taken seriously, because the commission of perjury on the preliminary declaration of disclosure may be grounds for setting aside the judgment, or any part or parts thereof, in addition to any and all other remedies, civil or criminal, that otherwise are available under law for the commission of perjury.
Under Family Code section 2104, the preliminary declaration of disclosure shall not be filed with the court, except on court order. However, the parties shall file proof of service of the preliminary declaration of disclosure with the court, judicial council form FL-141.
The preliminary declaration of disclosure shall set forth with sufficient particularity, that a person of reasonable and ordinary intelligence can ascertain, all of the following:
- The identity of all assets in which the declarant has or may have an interest and all liabilities for which the declarant is or may be liable, regardless of the characterization of the asset or liability as community, quasi-community, or separate.
- The declarant’s percentage of ownership in each asset and percentage of obligation for each liability when property is not solely owned by one or both of the parties. The preliminary declaration may also set forth the declarant’s characterization of each asset or liability.
The party may amend his or her preliminary declaration of disclosure without leave of the court. However, proof of service of any amendment shall be filed with the court.
Throughout the divorce process the parties may also engage in discovery. Discovery is the process by which one spouse requests information (in the forms of document production, answers to written questions, or oral deposition) from the other spouse. Discovery may be formal or informal. Formal discovery includes propounding interrogatories, requests for admissions, requests for production of documents or things; subpoenas; depositions; inspection demands; physical and mental examination; vocational examination; expert witness disclosures; and others. Informal discovery is a voluntary, informal exchange of documents and information and is far less expensive and time-consuming than formal discovery.
During the pendency of the divorce proceeding, the parties may litigate issues such as temporary custody, temporary child support, temporary spousal support, pendente-lite attorney’s fees, and other issues that must be resolved immediately and cannot wait until trial.
The parties may also engage in settlement discussions and negotiate the terms of their divorce. This can be done in many different ways, depending on the parties’ post-separation relationship and expectations. It is not uncommon for the parties to negotiate a settlement agreement on their own, with or without the help of their family law attorneys. Another option is for the parties, through their attorneys, to exchange settlement offers in an attempt to resolve their differences. In addition, the parties may participate in alternative dispute resolution (ADR). In the family law aspect, the most popular alternative dispute resolution process is private mediation. It is not uncommon for the parties to engage in all of the above methods of resolution – i.e., informal settlement and negotiations; exchange of settlement offers through the parties’ family law attorneys; and private mediation.
If the case settles (approximately 95% of all family law matters settle out of court), then one of the parties, or his/her attorney, will prepare the Judgment package, for the other party’s review and approval. The Judgment package consists of a number of mandatory judicial council forms. Typically, these forms are: (1) Appearance, Stipulations and Waivers (FL-130); (2) Stipulation and Waiver of Final Declaration of Disclosure (FL-144); (3) Declaration for Default or Uncontested Dissolution (FL-170); Judgment (FL-180); Notice of Entry of Judgment (FL-190) and the written agreement, called Marital Settlement Agreement, which is attached to the Judgment form.
If there are minor children of the marriage, a new Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (form FL-105) form must be filed along with the Judgment package if there have been any changes since the one most recently filed. In addition, a computer printout of guideline child support should be attached, and some jurisdictions make it mandatory. Further, Notice of Rights and Responsibilities and Information Sheet on Changing a Child Support Order (FL-192) must be attached to the Judgment. The Court also requires that a Child Support Case Registry form (FL–191) be filed by both parties. This form will not be placed in the court file. It will be maintained in a confidential file with the State of California.
It is important to note that even if the parties reach an early resolution of their divorce and settle their differences the Court will not enter judgment unless six (6) months have passed from the date the Respondent was served with the Petition and Summons (and UCCJEA if the parties have minor children). The six-month cooling off period was enacted by the legislature in an effort to give the parties sufficient time to decide whether they really want to dissolve their marriage or work on their differences. It is not uncommon for the parties to dismiss the divorce proceedings and focus their efforts on repairing their relationship.
If the parties submit their family law judgment package to the Court less than six months from the date the Respondent was served, the clerk will enter Judgment on the sixth month mark, and will mail the Notice of Entry of Judgment to the parties.
If the parties are not able to resolve their differences, the Court will schedule trial dates. In Santa Barbara County (and in many other counties), the Court mandates that the parties attend a Mandatory Settlement Conference with a neutral settlement master prior to trial. This is a last attempt to settle the case prior to trial.
Family law trials in California are bench trials – i.e., a judge, as opposed to a jury, will hear the case and will decide the outcome. There are no jury trials in family law in the State of California.
The spouse who filed the Petition (called Petitioner) will present his or her case first. The Petitioner will present his or her evidence, witnesses and experts. The other spouse (called Respondent) will then cross-examine the Petitioner, his/her witnesses and experts. The Petitioner will be given the opportunity to question the witnesses who have already provided testimony under oath in response to direct examination as well as cross-examination by the Respondent. The same process will be followed for Respondent’s evidence, witnesses and experts. At the conclusion of the case, the judge will issue the ruling. Some judges take the matter under submission, and mail the ruling to the parties or their attorneys, if the parties are represented.
Approximately 95% of all family law cases resolve prior to trial. However, where informal resolution is impossible, the Court will adjudicate the matter.
If you have questions concerning your family law matter, please feel free to contact the Law Offices of Felix & Killen for a free consultation.
Note: Each case is fact specific, and the information provided in this article is not intended as legal advice. Consult a licensed attorney if you have questions about the effects of divorce.