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The Five Stages of Divorce

THE FIVE STAGES OF A DISSOLUTION PROCEEDING

1. The Initial Pleadings

The first step is preparation of the initial paperwork. Legal papers that are filed in court are called "pleadings." These initial pleadings generally include the following:


  1. Summons;

  2. Petition;

  3. Order to Show Cause pleadings for the purpose of requesting pendente lite orders, meaning order that will remain in effect until trial;

  4. Temporary Orders;

  5. Declarations;

  6. Income and Expense Declaration;

  7. Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act;

  8. Response (if your spouse filed first and you have been served with a Summons and Petition); and

  9. Responsive Declaration to Order to Show Cause (if your spouse filed an Order to Show Cause first).

These initial pleadings are prepared from the client information questionnaire which you were given. Therefore, it is important that you complete the questionnaire to the best of your ability, and as soon as possible.


Once we have received the necessary information from you, we will prepare the pleadings that are necessary in order to start the dissolution or to respond to the Petition if your spouse has filed first. You will be notified when these pleadings are ready for your review and signature. You should read the pleadings very carefully, because they are signed under penalty of perjury, which means that you are certifying that the information contained in the pleadings is true. The pleadings are then filed with the court and served upon your spouse.


The Family Court has implemented direct calendaring, in which every case is assigned to one judge, who will hear all proceedings in the case from the initial order to show cause through the trial, except for the settlement conference. If one party objects to the judge assigned to the case, that party must file a written objection to that judge within 10 days of the assignment. This is called a "peremptory challenge" and will result in the case being reassigned to another judge. You will receive a copy of the Notice of Case Assignment when the Petition is filed. If you have any reason to object to the judge, you should notify your attorney immediately. In an appropriate case, your attorney may recommend that you and your spouse retain the services of a Private Judge.


Service of the Petition for Dissolution of Marriage starts the time running for the minimum six months that must pass before the court can terminate your marital status. Please remember that your marriage will not terminate automatically at the end of the six months. There must either be a court hearing or a trial at which the judge grants the dissolution of the marriage, or a complete written settlement agreement must be submitted to the court together with the Judgment and a declaration under penalty of perjury by one spouse stating that irreconcilable differences exist which cannot be resolved.


The purpose of the six-month waiting period is to encourage reconciliation between the spouses. If in fact a reconciliation should occur, please advise us so that the appropriate steps may be taken.


2. The Order to Show Cause Hearing

Most cases require a court hearing in order to obtain pendente lite orders, also known as temporary orders. This is called the initial order to show cause hearing, or "OSC." Generally, the following issues are addressed:


  1. Child custody and visitation;

  2. Child support;

  3. Spousal support (alimony);

  4. Restraining orders;

  5. Use of the residence and vehicles;

  6. Attorney's fees and costs; and

  7. Any other relief which may be necessary.

The OSC hearing will generally occur within 30 to 45 days of the filing of the initial pleadings. Continuances are often necessary and will be granted as a professional courtesy, unless a financial emergency or other situation exists which requires immediate orders by the court. Moreover, if your spouse only recently retained an attorney, a continuance will most certainly be granted to allow time to prepare for the hearing. At the OSC hearing, there is ordinarily no testimony, and the court decides the issues after hearing the attorneys argue the case and reviewing the declarations that have been filed.


When child custody and visitation are in dispute, the parties are required to attend an appointment at Family Court Services (FCS) for mediation before the OSC hearing. It may be necessary to wait six weeks for an appointment at Family Court Services, and this can cause a delay in the hearing of the initial OSC. In an appropriate case, your attorney will recommend that you and your spouse retain a private custody mediator, who will provide a more thorough process. If no agreement is reached during the mediation appointment, the counselor will submit a recommendation to the court. Our office will provide detailed information to you before the FCS appointment if one is necessary in your case.


You should plan to attend the OSC hearing; if that is not possible, a telephonic appearance will be arranged. The court encourages the parties and their attorneys to settle as many issues as possible. Experience shows that parties are more satisfied when they make the decisions about their finances and children. All settlement offers will be reviewed with you, and no settlement will be reached without your express agreement. The judge will make the necessary decisions on all issues that are not settled.


After the hearing, one of the attorneys (usually the attorney for the party who filed the OSC) will prepare a written order, called Findings and Order After Hearing. It may be several weeks after the court hearing before the written order is signed by the judge, but the actual court orders are effective on the date of the hearing and must be obeyed by you and your spouse. Failure to obey the court orders may result in the filing of a contempt proceeding or other enforcement action.


The orders that are made at the first OSC hearing generally will remain in effect until the case is ready for trial or settlement. Sometimes, it is necessary to go back to court before trial, if problems arise with the orders that have been made, or if there is a change in circumstances that requires a change in the orders.


3. Discovery

Discovery is the process of finding out facts, information and documents which are necessary to resolve your case. Generally, the discovery process will start after the initial order to show cause hearing, although in some cases it is necessary to conduct discovery before that hearing. For example, if your spouse's income is not known to you, it may be necessary to subpoena payroll records from an employer or to take the deposition of a self-employed spouse.


There are many different methods of discovery, but the most common are the following:


  1. Depositions;

  2. Demand for Production of Documents or Things;

  3. Deposition Subpoenas for Business Records (sent to banks, stock brokers, employers, pension plans, and other business entities);

  4. Interrogatories; and

  5. Requests for Admission.

Not every case requires discovery. Some cases require extensive discovery. A discovery plan will be developed and discussed with you. Depositions are the most expensive discovery method because they require the services of a court reporter, and therefore no depositions will be scheduled without your prior approval and pre-payment of the estimated cost of the court reporter.


Another important discovery tool is the Declaration of Disclosure, Income and Expense Declaration and Schedule of Assets and Debts, which every party is required to complete before the case is settled or brought to trial. California disclosure laws are the subject of a separate letter to you.


If you and your spouse own real property, it may be necessary to obtain an appraisal unless you can agree on the value or you plan to sell the property. Community businesses must be appraised and valued. Pension or retirement plans, 401(k) plans, stock option plans and other forms of deferred compensation need to be analyzed and awarded or divided.


4. Settlement Negotiations

The Family Court encourages spouses to settle as many issues in their case as possible. Settlements not only reduce the number of cases that the court must hear and decide, but also, clients are more satisfied with the outcome of their case if they have control over it through settlement negotiations. After discovery is completed, we will generally formulate a settlement offer to attempt to settle the issues in the case without a trial. You will be asked to approve such a settlement offer before it is sent to the other party. Sometimes extensive negotiations are necessary to settle a case. Four-way meetings may be scheduled in the attorneys' offices where the parties and their attorneys meet to discuss the issues and possible resolutions.


If a complete settlement is reached on all issues, a Marital Settlement Agreement will be prepared and circulated for everyone to review. After a satisfactory written Agreement is reached, it will be signed by the parties and their attorneys and filed with the court, together with the Judgment of Dissolution of Marriage. In this way, a dissolution may be completed without further court hearings or a trial.


Some cases are settled with the assistance of the court by means of a Mandatory Settlement Conference. Both parties and their attorneys are required to be present in court and to present written settlement briefs to the court. If a settlement is reached, it is read into the record and approved by a judge on the day of the settlement conference. A Marital Settlement Agreement or Stipulated Judgment will be prepared to set forth the agreement.


In complex cases, it may be helpful to retain a Special Master or private Settlement Judge to assist in resolving certain issues or even the entire case. This will be discussed with you if it appears to be appropriate for your case.


5. The Trial

If your case cannot be settled either by the parties and their attorneys or by the court, a trial date will be scheduled. Depending on the time estimated for trial, there may be a long wait for a trial date.


Trials usually require testimony of the parties and other witnesses and presentation of documentary exhibits to the court, as well as legal argument by the attorneys. A trial brief must be submitted to the court.


Trials are expensive because of the time required to prepare for trial, as well as the waiting time in court. Settlement is far less expensive, and that is why both your attorney and the court encourage you to settle as many issues as possible.


OTHER HEARINGS

Your case may require ex parte hearings from time to time. This means a hearing where the attorneys appear before the judge, usually without the parties present, and on telephone notice to the other attorney. An ex parte hearing is supposed to be scheduled only to address an emergency situation: for example, child stealing, a threat to remove funds from community bank accounts, etc. Sometimes, your attorney may have to appear ex parte to request a continuance of a hearing or trial that has already been scheduled by the court.


The court schedules Status Conferences or Case Management Conferences, at which the attorneys inform the court of the progress of the case. You do not have to attend these conferences.


POST-TRIAL PROCEEDINGS

Many people think that the trial date means that their case will finally be resolved, and there will be no more court proceedings. Sometimes, however, the attorneys do not agree on what the judge ordered, so a transcript must be ordered from the court reporter to clarify the orders. If the attorneys still do not agree on the language of the Judgment, the judge will be asked to resolve the dispute. This may delay the entry of your Judgment. Even though the judge may grant the dissolution of your marriage on the date of trial, the written Judgment may not be available for weeks or even months after the trial.


Where your case is resolved by a written Marital Settlement Agreement, it may take several months and many revisions for the agreement to be approved by you and your spouse and your attorneys. Once it is signed, however, it will be filed with the court, together with the Judgment of Dissolution. The only delay that may occur is the time it takes for the court clerks to process the Judgment and related paperwork. This is usually accomplished in a few weeks.


After the Judgment is filed, it may be necessary to prepare deeds for the transfer of real property, wage assignment orders for the payment of support, and qualified domestic relations orders for the division of pension or retirement plans, as well as other documents to protect your interests. Sometimes this paperwork may seem endless to you but it is all a necessary part of your dissolution.


At the conclusion of your case, following entry of the Judgment and completion of all other necessary work, I will file a Notice of Withdrawal. This is standard practice, and prevents the other party from serving me with papers for any additional legal proceedings. Sometimes it is necessary to go back to court to enforce the trial court's orders for payment of support or for division of the property. If such a situation should arise, you and I can discuss the matter and decide upon an appropriate course of action


CONCLUSION

Of course, it is impossible to answer all of the questions you may have in a letter such as this one, which is general in nature. Every case is unique, and you are encouraged to meet with your attorney to discuss the specific issues in your case. The laws which govern family court proceedings are complicated, and it is natural for you to have questions which only your attorney can answer. If that is the case, please contact my office to schedule an appointment for a conference with me.