A divorce case in California
begins when the “Petitioner” files a Petition
in the Superior Court for dissolution of the marriage
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:
- Default:
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.
- Uncontested:
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.
- Contested:
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.
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:
- Custody, Support, &
Visitation Of Children
- 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 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.
