As San Diego divorce attorneys, we typically explain to our dissolution of marriage and domestic partnership clients that cases are generally resolved over time in three stages: the initiation of the divorce, pre-trial andpre-settlement, and resolution. The majority of time and effort expended during dissolution proceedings occur in the middle stage, where the court may hear requests by either party to enter orders pertaining to a variety of issues, including child custody and visitation, child and spousal support, exclusive use and possession of a family residence, payment of debts, counseling, appointment of certain experts, accountings, and so forth. The middle stage is also where disclosures and discovery are completed, and the parties meet and confer to negotiate terms of their settlement.
Stage 1: Initiating the Case
Every family law case begins by filing a petition with the court. The person who files the case is called the “petitioner” and the other party is called the “respondent”. There are different types of cases that can be filed to terminate the status of a marriage or domestic partnership, including dissolution or divorce, legal separation and nullity of marriage. The petitioner must properly effectuate service on the respondent with the petition, summons and associated documents. California law provides for several different methods of service, including personal service, substituted service and service by mail. After the Respondent has been served, he or she generally has 30 days in which to file a response.
Divorce and Dissolution
Dissolution legally ends a marriage or registered domestic partnership. A divorce proceeding will resolve issues such as the division of assets and debts, child custody and visitation and child and spousal support. California is a no-fault divorce state, which means that if either spouse believes that irreconcilable differences have arisen, the court will enter judgment of dissolution. A final judgment of dissolution will also restore the parties to their status as single persons.
California law affords qualified domestic partners with many of the rights and obligations of married persons. As a result, many of the fundamental issues that may be relevant to a divorce may also be relevant to the dissolution of a registered domestic partnership.
To file for dissolution in California, you must meet the residency requirement. This means that either you or your spouse must have lived in California for at least 6 months and either you or your spouse must have lived in the county in which you are filing for at least 3 months.
The Petition for dissolution and the other party’s Response, set forth that person’s requests in general terms and typically include requests based on that party’s “best case scenario”. For example, if there are certain separate and community property reimbursements that might be at issue in the proceeding, it might be wise for the party seeking reimbursement to include such a request on his or her initial pleading. There are also certain situations where a person’s rights or obligations might be deemed waived upon the filing of a petition or response, and therefore it is extremely important to consult with competent legal counsel before filing any document with the court. Some examples of this importance of filing the proper initial papers include situations where military retirement plans might be relevant, where claims to separate real property might be at issue, or cases involving complex division of community assets and debts.
A legal separation proceeding resolves matters such as the division of assets and debts, custody, and support just as in a divorce, however, the parties retain their status as married persons once the case is over. This is an option if you want to live separately from your spouse, but also want to stay legally married. There may be significant advantages or disadvantages to proceeding with legal separation as opposed to divorce, which may call for the advice of competent legal counsel. A legal separation can be converted into a divorce after the initial filing if you wish to obtain a divorce, but have not met the residency requirement. Our San Diego County family law attorneys can discuss this option with you in detail to determine the course of action that will obtain the quickest, most cost-effective results.
An annulment occurs where there is a void or voidable marriage. California law only allows for an annulment in narrow circumstances, such as where there is fraud, undue influence, duress, lack of physical or mental capacity, or bigamy. Our knowledgeable family law attorneys can explain the circumstances under which you may seek an annulment and discuss whether an annulment is an option in your case.
Nullity or annulment cases based on allegations of fraud generally must meet a threshold question relating to whether the alleged fraud was essential to the marital relationship. For example, one spouse’s failure to inform the other spouse that they had another significant other, or children, at the time of marriage might be considered by the court as essential to the marital relationship. On the other hand, a spouse’s failure to inform the other spouse that they incurred credit card debt prior to marriage might not be considered by the court as essential to the marital relationship.
Nullity cases based on allegations of undue influence or duress generally hinge on the parties’ conduct immediately before and at the date of marriage. For example, if one spouse threatened to kill the other spouse if he or she did not marry them, the court might consider that evidence to be sufficient to determine nullity is proper.
Nullity matters based on lack of physical or mental capacity tend to hinge on the parties’ behavior on the date of marriage and thereafter. For example, lack of consummation, or sexual intercourse, after the date of marriage falls under the category of physical incapacity.
Annulment cases filed based on bigamy brings interesting legal challenges. Bigamy occurs where a person marries someone while they are still legally married to someone else. The second marriage is void. In bigamy cases, which also may hold criminal ramifications, a spouse may claim that they are a “putative” spouse if certain elements are met. This means that the second spouse, although not legally married, may seek the court’s assistance to make certain orders as if the parties were legally married.
The unique circumstances of each case present different options that may be available to you at this stage in the divorce proceeding, including collaborative-type divorce and summary dissolution proceedings as well as mediation services. Our knowledgeable attorneys can explain your options and help you determine how to proceed to achieve the best, most cost-effective results.
Stage 2: Pre-trial and Pre-settlement
Each divorce proceeding will likely entail various hearings that you and your spouse will be required to attend, such as status conferences, Case Management Conferences andMandatory Settlement Conferences. Cases involving child custody also require the parties to attend Family Court Services (FCS) mediation. Our experienced divorce and child custody attorneys can help you prepare for your hearings and FCS mediation. Preparation for mediation will also help you to feel less intimidated and confused about the process as well as help the mediation session run more smoothly so you can obtain the best results.
During a divorce proceeding, you and your spouse are also required to identify the martial property, including assets and debts, and declare income and expenses. The disclosures are comprehensive and a sample of the necessary forms can be found here. The formal exchange of information occurs through service of declarations of disclosure. This process can often be complicated and confusing. A knowledgeable attorney with experience in family law can help navigate through this process to ensure that your interests are protected. There may be significant consequences for any party that misrepresents, omits, or fails to fully disclose financial information. It is also important to understand the mechanisms to provide the court with the correct financial picture if your spouse does not produce accurate or complete disclosures.
In the event the required mandatory disclosure documents that your spouse provided in your case is not accurate or not complete, you have to right to gain information through a process called discovery. You can also use the discovery process to gain information in child custody, support, and other matters. Discovery is a general term which includes many tools lawyers typically use to obtain information from a variety of sources. For example, discovery may include the taking of depositions, demanding the production of documents, requiring a party to answer questions under oath or admit or deny certain facts, and sending subpoenas to third parties.
You and your spouse may also request that the court make orders on issues before a final judgment of dissolution is entered. These orders are called temporary, or pendente lite, orders. To obtain a temporary order, you must file an Order to Show Cause or a Notice of Motion. You and your spouse may obtain temporary orders on matters such as child custody and visitation, child support and spousal support. At your hearing, the judge or commissioner will enter orders that will last until the order is modified, which can occur during the proceeding or at the end of the proceeding, where the parties either agree to permanent orders or a judge makes a decision at a trial.
Stage 3: Ending the Case
A divorce case ends with either an agreement between the parties or a trial. If you and your spouse are able to reach an agreement on issues such as the division of assets, child custody and visitation, support, and all the terms typically associated with divorce proceedings, our attorneys will prepare a Marital Settlement Agreement, or MSA. We may alternatively prepare a stipulated judgment, which is a short form marital settlement agreement if the case does not require a detailed MSA. The terms of agreement are filed with the court and adopted into a court order. It is important to note that every document filed with the Court become part of the public record in divorce cases. That means anyone can go to the courthouse and review a divorce file. In some circumstances, it is possible to file a memorandum of a confidential agreement, which means that the terms of the divorce are kept out of the public eye. Many celebrities and high net-worth individuals seek this option as a method to keep their settlement terms confidential.
If you and your spouse cannot come to an agreement, your case will conclude following a trial, which means that a judge or commissioner will decide any issue that you cannot agree to. In preparing for trial, your attorney will draft a brief with legal arguments to persuade the court to rule in your favor. During the trial, evidence must be submitted in the proper format so that the court accepts the evidence. If information is submitted to the court, but not in compliance with the rules of evidence, the court cannot accept the evidence and therefore cannot consider that evidence when rendering a decision. During trial, testimony will also be considered by the court. Unlike other civil or criminal matters, there are no jury trials in family court. There is only one Trier of Fact, which is the judge or commissioner. Trial preparation is important because the court may base its decision on the credibility of the witnesses.
Declarations of Disclosure
During the middle stages of your case, parties to a divorce, legal separation or nullity case may engage in a variety of discovery processes. Some processes are required and some are not. Discovery is the process by which parties collect information in preparation for trial or settlement using the California Code of Civil Procedure and Civil Code. Many lawyers have experience in conducting discovery; however, not all attorneys do so in a cost-effective and efficient manner. Attorneys should be familiar with the process to ensure the other side complies with the rules of discovery. California law provides the discovery mechanisms available for family law litigants to gain information that will be useful in their case. Since family law is a branch of civil law, the courts are bound by the rules of evidence and cases are won and lost with the information provided to the court. Often litigants believe that merely showing up on their court date with documents, exhibits and information to prove their case is sufficient – unfortunately, those litigants are wrong. Evidence must be obtained and presented in the proper manner for consideration by the court.
Forms of Discovery
Preliminary Declarations of Disclosure
Preliminary declarations of disclosure are required in all divorce or dissolution of marriage cases. During the middle stages of divorce matters, the parties are required to voluntarily exchange certain documentation and information regarding their assets and debts, income and expenses. These must be done immediately and updated upon the change of information. Failure to update disclosures of materially changed information is a breach of fiduciary duty. In divorce actions, parties appearing in the case are required to complete and exchange Declarations of Disclosure, or DOD’s. In a default case, where the respondent does not appear, only the petitioner needs to complete and serve his or her disclosures. In annulment actions, only the petitioner needs to complete his or her preliminary DOD’s.
To complete the DOD’s the family law litigant and his or her attorney will prepare answers on two pre-printed forms called an Income and Expense Declaration and a Schedule of Assets and Debts. The information provided on these forms is important to the dissolution proceeding and taken seriously by the court. Committing perjury or not taking the time to fill out the forms in a complete and honest manner may have significant negative impacts. Generally, these forms are not complete if the proper attachments are not included. If current bank statements, property deeds, life insurance policy statements, investment account statements, or vehicle values are not included with the Schedule of Assets and Debts, for example, the form is not incomplete. For example, if pay stubs, certain tax forms, attachments pertaining to rental income, or retirement account statements are not included with the Income and Expense Declaration, the form may be incomplete.
Formal discovery processes involve more complex and sometimes costly procedures designed to obtain additional information. This process can often be complicated; however, our attorneys are experts in the discovery process, enforcing discovery procedures, filing motions to compel discovery responses, and obtaining sanctions against the opposing party for failures to comply.
A deposition is an excellent way to obtain information in family law cases. Depositions involve taking the testimony of a party or other persons with relevant information, which is done under oath in the presence of a court reporter. Questions are asked of the deponent, and then transcribed by the court reporter. While depositions may be conducted in an informal setting such as a law office conference room, the testimony is admissible in the court proceeding just like if the deponent testified right in the courtroom in the presence of the judge or commissioner.
Our attorneys are experienced in conducting and defending oral depositions. Preparing for the taking of a deposition can be a tedious process, but if done correctly can result in significant benefits. Testimony resulting from a deposition can serve as the basis for an effective cross-examination of the witness later during trial for impeachment, or more simply, can result in the acquisition of valuable information.
Interrogatories are a series of written questions that are presented to the opposing party in your case. The opposing party must then prepare answers to the questions and return them, signing under penalty of perjury that the answers are truthful. Objections to the form or content of questions may be made at the time responses are sent to the propounding party. Form interrogatories, which are pre-printed questions relating to matters that are most common to most divorce, legal separation or nullity proceedings, are a cheap and effective way to obtain relevant information from the other party. Special interrogatories are specifically drafted questions. All answers to interrogatories are answered under oath.
Request for Production of Documents
A request or demand for production of documents allows family law parties to acquire certain documents and other tangible objects that may be relevant to the divorce, legal separation, paternity, nullity or domestic violence case. The responding party must use reasonable efforts to provide the documents or tangible items requested. If the documents or tangible items are unavailable or do not exist, the responding party must state that they have diligently searched for the document or thing demanded.
A subpoena is a court order requiring a party or other person to appear in court or produce certain documents or other tangible property or information. The rules concerning subpoena processes are complex and require the assistance of counsel.
Mental or Physical Examinations
In cases in which a party’s mental, emotional or physical condition is at issue, which includes all custody and visitation matters, the other party may request a mental or physical examination to determine the validity of the party’s claim. Court appointed experts are selected to conduct the examination, and the resulting evaluation is admissible in court but subject to cross examination. This means that a party not happy with the report or evaluation may provide his or her own expert to testify regarding the contents of the report. Physical and mental examinations are common in cases where a party refuses or cannot become employed, resulting in a vocational evaluation, and where a parent has mental or physical shortfalls and the other party believes they cannot adequately parent a child.
Roles of Party and Attorney
The role of client and attorney differ greatly when it comes to preparing and serving disclosures and discovery. For example, the client’s role involves thoroughly and diligently searching for documents requested, answering interrogatories by providing information to the attorney, and providing background information to the attorney to provide the best strategy for obtaining information from the other side. The attorney’s role involves making legal objections, putting the information or answers in the correct format, sequestering computer disks and computer information, providing the client with instructions for his or her responses, and so on.
Having an experienced family law and divorce lawyer on your side is essential to obtaining information, forcing the other side to comply with your requests, and using the court to intervene if the other side refuses to comply with the law. Our attorneys have extensive experience filing motions to compel the other side the respond, and in some instances filing motions for sanctions. Please contact us today to schedule your free initial consultation by calling our office at (619) 284-4113, visiting our office in Mission Valley, or filling out our free case evaluation form which will send an email to our partners immediately.
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