A divorce case in California begins when
the “Petitioner” or his/her divorce lawyer files
a Petition For Dissolution Of Marriage in the Superior Court
asking the court to dissolve the marriage and to deal with any
issues between the parties arising out of the marital relationship
such as child custody, child support, spousal support, property
division, debt division, payment of attorney fees and court
costs, etc. How the case is subsequently handled depends on
whether the other party – the “Respondent”
– 1) fails to file a Response to the Petition or, 2) cooperates
to settle the case by way of agreement or, 3) files a Response
and contests the issues in the case.
Thus – depending on what the Respondent
decides to do - there are three ways to resolve the issues in
the case:
- California Default Divorce:
The Respondent in the case fails to timely file a response
to the petition for divorce or legal separation; in which
case the Respondent’s “default” is entered
by the court clerk and the matter proceeds without the Respondent’s
participation.
- California Uncontested Divorce:
A case is “uncontested” when the parties work
together to settle the issues by way of written agreement.
This may be the case where the Respondent initially defaults
or where the Respondent files a Response and the parties
later decide to settle.
- California Contested Divorce:
A case is “contested” when a Response to the
petition is filed, the parties are unable to agree on the
issues, and the court must resolve them for the parties
in a trial.
If your divorce is either uncontested
or default matter, the following 12 steps must be taken to obtain
your California divorce.
Step 1: Choose The Proper Court
You will begin by answering a series of questions to make sure
that the State of California has “jurisdiction”
over the parties and issues in your case, that the case is filed
in the proper county, and that you comply with local “venue”
rules.
Step 2: Prepare, Download, And
Print The “Initial Document Package”
After we have determined which is the proper court for your
case, we will prepare the initial documents to be filed with
the court.
Step 3: File The Initial Document
Package With The Court
After your initial papers have been prepared and signed, we
will file them with the court clerk.
Step 4: Serve The Initial Documents
After the documents have been filed with the court, they must
be properly served on the opposing party. There are two ways
to meet these “due process” requirements. Either
your spouse can choose to accept service by signing an Acknowledgement
Of Service or he/she must be formally served with the documents.
Step 5: Entry Of Default (If
No Response Is Filed)
If your spouse has either signed a Acknowledgment Of Receipt
or has been formally served with the Summons and Petition
and has failed to respond within 30 days, he/she is “in
default” and his/her default may, on your application,
be entered by the court clerk. Once the default has been entered,
the Respondent will be foreclosed from responding or appearing
in the case unless he/she is able to successfully move to have
the default vacated.
Step 6: Financial Disclosure
It is the policy of the State of California to insure a proper
division of community property and to further insure that child
and spousal support awards will be fair and equitable. To this
end, California Family Code Section § 2100 et seq. mandates
the exchange of prescribed "preliminary" and "final"
declarations of disclosure, along with current income and expense
declarations, in all marriage dissolution, legal separation
and nullity actions. We'll prepare the financial disclosures
for you and carefully review the disclosures coming from the
other party.
Step 7: Prepare And Notarize
A Marital Settlement Agreement
If we have served the Respondent with the Summons and Petition
and he/she has defaulted (failed to file a Response) and your
case is not going to settle by way of an agreement, you will
skip this step and move to Step 8. However, if you are your
spouse are going to settle the case by way of agreement, we
will prepare an agreement which resolves all of the issues in
your case. Generally these issues include:
- Child Custody
- Child Support
- Child Visitation
- Spousal Support
- Division Of Community Property\
- Division Of Community Property Debts
- Payment Of Attorney Fees & Costs
Of Suit
Step 8: Prepare Order To Withhold
Income For Child Support (Wage Garnishment)
Whenever a support order is made or modified, the court must
include in the order an Order/Notice To Withhold Income
For Child Support that directs the paying spouse’s
employer to pay to the party receiving support that portion
of the paying spouse’s earnings due or to become due as
will be sufficient to pay (a) the support amount ordered by
the court, and (b) an amount ordered to be paid toward liquidation
of any arrearage.
Step 9: Prepare And File The
“Judgment Package”
The end result and the final goal of the action for dissolution
or marriage, legal separation, or nullity is to obtain a Judgment
from the court. The Divorce Judgment dissolves the marriage
and is a court order which resolves the issues between the parties
such as child custody and visitation, child support, spousal
support, property division, debt division, and the payment of
attorney fees and costs. Whether you obtain that judgment with
the agreement of the other party or after the other party’s
default or after hearing of the matter at trial, a proposed
“Judgment package” of documents must be prepared
for submission to the court.
Step 10: Serve The Judgment
Where there are orders in the Judgment enforceable by contempt
(such as child & spousal support orders or restraining orders)
it is important that a conformed copy of the Judgment be personally
served on the opposing party and that you obtain a proof of
service of the Judgment. Failure to properly serve notice of
any order enforceable by contempt on the other party may make
it impossible for you to bring a contempt action later to enforce
it.
Step 11: File The Child Support
Case Registry Form (If Applicable)
If the court makes a child support order or a “family
support” order containing child support orders, both parties
must complete and file with the court a “Child Support
Case Registry Form” (Form FL-191) containing information
concerning the order to be placed on file with the State of
California. This document is received by the court but not filed
in the court file. It is sent to the State.
Step 12: Serve The Order To Withhold
(Wage Garnishment) On Spouse’s Employer
In cases involving child or spousal support, the last step in
the process is to serve your Order/Notice To Withhold Income
For Child Support on your spouse’s employer so that
the support can be withheld and paid to you.
