Divorce can be an intimidating and frustrating process. Understandably, emotions are often very high, and it is easy to get overwhelmed. Knowing the different steps to your divorce, and what you can expect during those steps, can help assist you throughout this process.
It is important to note this is not a fully comprehensive list of all pleadings required, or all issues that can arise in your divorce case. Instead, this is intended to give you a general roadmap to how divorce cases in California operate.
Filing the Petition
Divorce in California starts with the filing of the Petition for Dissolution of Marriage. The Petition is used by the Court to open a case and get an understanding of the basic things at issue. The Petition will inform the Court important information such as the date of separation, the length of the marriage, whether there are minor children involved and custody and visitation claims, spousal and child support claims, and community and separate property claims. Since you are the party filing for divorce, you are considered the Petitioner and the other party will be considered the Respondent.
The Petition pleadings required will include, at a minimum, the Petition, Summons and Venue Declaration in San Diego, California. Once you the Court has finished processing your Petition and opening your case, you will receive a stamped copy of the Petition and all your introductory pleadings that you filed with the Court. These are considered the conformed copies of the pleadings and are used to confirm the Court has received and filed those pleadings that have the conformed stamp.
You will also generally receive a Notice of Assignment at this time, which will detail which department and judge you have been assigned. Finally, you will also likely receive a Notice of Hearing at that time. It is important to note that hearing is only the first step in the Court process and is generally used by the Court to simply check in on the status of your case and ensure the opposing party (your ex-partner) has been given notice of that you have filed for divorce.
Once you receive your conformed copies back from the Court, your next step is to serve the conformed pleadings on the opposing party, your ex-partner. California has very specific requirements for service of the Petition pleadings that must be adhered to have proper service. If service is not completed properly, the Court is prevented from substantively moving forward in your case. This is because California law requires the due process notice and opportunity to participate in the divorce. Generally, the Petitioner has the conformed Petition pleadings personally served on the opposing party by a professional process server or a friend or family member that is over the age of 18.
Once service is completed, a Proof of Service must be completed by the person that served the pleadings. That Proof of Service is then filed with the Court, so the Court has official notice that your Petition pleadings have been served on the opposing party, identified as the Respondent by the Court. Additionally, the Respondent has 30 days from the date of service to submit their official Response to the Petition with the Court.
Once both parties have officially appeared (generally meaning they have filed their Petition and Response with the Court) the discovery phase of the divorce process begins.
Discovery is a legal tool meant to provide both parties with the ability to obtain all necessary information regarding things at issue in the case. Depending on what is at issue, discovery could encompass many areas so long as it is reasonably related to the matters at issue. In most divorce cases, these issues involve the community and separate property of both parties, as well as the income of each party and standard of living to determine potential child and spousal support and division of property.
Discovery begins with California’s required preliminary disclosures. The preliminary disclosures are required to be completed by both parties and include several documents including, but not limited to, the Schedule of Assets and Debts, or Community and Separate Property Declarations, and Income and Expense Declaration. Even if you and your ex-partner are amicable and completely in agreement with how to resolve your divorce and divide your assets and debts, California still requires these initial preliminary disclosures be completed by both parties. This is because the Court wants to ensure both parties have adequate information, and documentation substantiating that information, before entering into an agreement on the division of assets and debts. The logic being you can’t reasonably understand and negotiate your rights to an asset or debt if you don’t have information about that asset or debt.
Preliminary disclosures get exchanged between the parties, but they do not get filed. The Court does, however, require you to file the Declaration of Disclosures informing the Court you have fulfilled this preliminary disclosure requirement.
Throughout the course of a divorce case, either party may file motions requesting the Court to issue certain orders. This is because parties often need assistance from the Court on how to deal with things, like custody and visitation, before the trial on the divorce can occur. California has a 6-month waiting period before a divorce can be finalized by the Court, and it is incredibly rare for a case to go from filing to trial in only 6 months.
Motions in San Diego, California are called Request for Orders, and often address issues such as requesting the Court issue child custody and visitation, temporary spousal support, child support, or even property payment or use orders. These orders can be temporary or permanent, and the Court’s ability to address what you are requesting is very dependent on the specific facts of your case.
Divorce cases finally resolve when the parties either reach an agreement or go to trial and the Court makes a determination on all matters at issue. If the parties reach an agreement, a marital settlement agreement is often drafted and signed detailing all aspects of the divorce agreement including, but not limited to, how all assets and debts are divided, child custody and visitation, spousal support, and child support. If a trial is required because the parties cannot reach an agreement, the Court will hear arguments on all matters at issue and make a ruling and order on all issues. The settlement or court order is then memorialized in a Judgment, which is signed by the Court and becomes the final order in your case.
All cases are different, but there is a general outline of how a case progresses from the initial filing to the final judgment that can be anticipated. Hopefully, having this knowledge can help you understand the process a little better, and give you a sense of ease in knowing what you can expect.