Getting Divorced? A Primer of Legal Steps to Get Single Again
When you hire a divorce lawyer, you are hiring him or her to help you get a divorce. What does that mean? Very simply put, at the end of this lengthy process, is a Judgment of Dissolution. Your divorce is not final unless this judgment is entered. Sounds silly, but some people believe they are divorced even without that piece of paper. Some have come to my office after unsuccessful jaunts with lawyers who let the case drag on for years without obtaining judgment. Here are the steps that need to be taken to get back to being single again.
Step 1: Filing of petition/response.
California is a no-fault state. This means that either spouse may file for divorce without proving someone is at fault (i.e. cheating, physical violence, etc.). To start a divorce, one party files a Petition for Dissolution. Currently, this petition costs $320 to file. Then the party who filed it must serve the papers to their partner to notify them that a divorce proceeding has been filed. I recommend you notify the other person before serving the papers. We’ve all seen the video footage of the crestfallen face of Kevin Federline, who allegedly discovered via text message that Britney filed for divorce. Divorce is difficult enough. If there is any room for courtesy, apply it.
After the other person gets the paperwork, they have 30 days to file a response, which costs $320.If they do not file it, the person who filed the Petition (called the Petitioner), may request a default judgment. In this case, they will generally receive everything they have asked for in their paperwork. (with some exceptions which you must discuss with an attorney).
In California, a judgment is entered no earlier than six months after the date the responding party (called the Respondent) is served with papers. Why? This is the waiting period created by the Legislature to encourage reconciliation. It is also a period where you can obtain all the financial information you need before entering into an agreement.
After the initial Petition is filed, automatic temporary restraining orders, also known as ATRO’s, kick in. They apply to both parties. The purpose of ATRO’s is to prevent angry parties from absconding with the children or wasting away all assets in order to spite the other side. Some examples include:
1. You cannot remove minor children from the state.
2. You cannot take benefited party off of insurance.
3. You cannot transfer, convey, encumber, or conceal property.
4. You cannot create probate transfer without notice.
Filing and serving divorce papers is just the first step to divorce. It is not the last. To get a judgment, you must keep going.
Step 2: Getting temporary orders via an Order to Show Cause.
Because it takes six months (or longer) to obtain a judgment, some stuff needs to be sorted out in the interim. For example: Who stays in the house? Who pays for the mortgage? If you are the supported spouse, will you get your living expenses paid for? What about spousal support? If you have children, who has custodial rights? What about child support?
Because your questions need immediate answers, it is wise to get an immediate court date in order to resolve these issues.You get a court date by filing what’s called an “Order to Show Cause”, also known as an OSC. It can resolve issues of custody, visitation, child support, spousal support, attorneys’ fees, etc. OSC are called pendent lite, which is Latin for while the case is pending. They are temporary orders, though in some cases they may end up being permanent. This is especially true in custody cases, because status quo is favored and the longer a temporary order stays in place, the firmer a status quo arrangement becomes. Currently, and racing filing an OSC costs $40.
An OSC does not mean you are trigger happy and racing to court to win. At all stages of divorce, you have the option to reach an agreement with the other side. You are always in control of whether you want to go to court. If you reach an agreement, you can file it the court. Usually, the judge will agree with you and commend you for settling. There are certain exceptions, of course. For example, in California, you can never take away the court’s power to rule on child support. It is always a good idea to file an OSC when issues of custody or visitation and support arise. Again, it takes six months or longer to obtain a judgment. In the meantime, both parties should desire temporary orders for peace of mind. Of course, if both parties have been separated for a long time, are self-supporting and have no children, there may not be any issues to be resolved.In this case, you can forgo the OSC.
Step 3: Domestic violence restraining orders.
Unfortunately, sometimes, after a divorce or custody case is filed, someone gets angry and becomes
physically or emotionally violent. This is particularly troublesome if there are minor children involved. In order to protect yourself, it may be vital to obtain a temporary restraining order, which lasts no more than 20 days. They may be granted without an evidentiary hearing, based on one party’s declaration. They then are set for hearing, where the Judge will take evidence from both sides before entering an order for a longer restraining order, which can last up to five years. In California, there is a presumption that awarding custody of a child to a perpetrator of domestic violence is detrimental to the best interests of the child. Because of the weight this carries, restraining orders are often abused in custody cases. It is essential to consult with a family attorney if you are experiencing domestic violence.
Step 4: Disclosures of finances.
Frequently in relationships, one person knows more about their finances than the other. California is a
community property state. This means, all property acquired after the date of marriage, before the date of separation, except for gifts and inheritance, is community property. Community property assumes the notion that even in relationships where only one spouse works, the other spouse is contributing to the marriage by staying at home and providing domestic duties. Even if that spouse does nothing, that doesn’t matter. The law assumes they are contributing something. So in a divorce, both parties are entitled to half of what was earned during the marriage.
Because of that, the law mandates both parties make extensive financial disclosures. Generally, they come at the begining of the process, which is called Preliminary Declarations of Disclosures, and the Final Declarations of Disclosures occurs before settlement or trial. This is not optional. The mandatory disclosures are the court’s way of preventing foul play.
If you are the supporting spouse, you may wonder: What happens if I don’t disclose my assets? He or she does not know of my off-shore bank account in the British Virgin Islands. There are several consequences, including: the judge may overturn your agreement or punish you by awarding the non-disclosed asset to the other side. In a famous 1996 case, Denise Rossi won $1.3 million in the California State Lottery. Eleven days later, she filed for divorce, from her 25-year marriage, never telling her husband. Two years after a judgement was entered, her ex-husband discovered she had won the lottery before she filed. (They always find out.) The judge gave all of the lottery money to the husband. Always disclose.
Step 5: Reaching an agreement or preparing for trial.
After disclosures have been completed, it is time to start negotiating a settlement. For example, who will keep the house? How much support will you pay? And for how long? Who will have the children for Christmas or Hanukkah this year? It is a good idea at this time to request a trial date, because with a looming trial date, both parties are more eager to resolve the case. In addition, if settlement discussions fall apart, there is already a trial date set, so as not to delay the dissolution. Other attorneys prefer not to do this to have more time to prepare for trial.
If you reach an agreement, you can file a Stipulated Judgment or Marital Settlement Agreement (MSA). The difference between both is that the MSAis also a contract. If either party breaches it, you have an additional remedy to sue for breach of contract. Once the judgment is stamped by the judge, you should receive a Notice of Entry of Judgment, which gives you a date of divorce. Only when this piece of paper has been filed is your divorce final. Congratulations!
Of course, in divorce cases, nothing is final. You may always file for Modification, but there are legal standards you must meet to get one. Consult a family attorney.
