Contemplating Divorce

Filing for divorce puts a process in motion that opens some doors and closes others. It also creates specific responsibilities. Before you take this consequential step, you should understand how it will affect the choices you want to make for your family going forward. Under California state law, filing for divorce creates:

AUTOMATIC RESTRAINING ORDERS

Once you have filed, you will need written permission from your spouse or a court order to:

• Take your minor child(ren) out of state.
• Apply for a new or replacement passport for your minor child(ren).
• Cash, borrow against, cancel, transfer, dispose of, or alter any insurance policy that benefits your spouse or your minor child(ren).
• Transfer, encumber, or conceal any property you own, whether or not you feel your spouse is entitled to it, outside of daily business or life activities.
• Create or modify a non-probate transfer.

ONGOING FIDUCIARY DUTIES

Once you have filed, you will still have important financial responsibilities to your spouse. You must act with respect toward each other in managing and controlling your assets and liabilities until they are divided by agreement or the court. You must fully disclose all assets and their value, all debts and interest for which you are liable, and provide equal access to all information, records, and books that document information about these finances when asked.

THE PETITION AND RESPONSE

 In order to start the divorce process in California, you or your spouse must file a Petition— a legal document that asks the state to proceed. If you file, you are known as the Petitioner. Your spouse has 30 days to file a document called the Response and will be referred to as the Respondent during divorce proceedings.

THE EXCHANGE OF FINANCIAL INFORMATION

Shortly after the Petition and Response documents are filed and served, you must exchange various financial disclosures. These financial disclosures include documents such as “Income and Expense Declarations” and “Schedules of Assets and Debts.” These financial documents are some of the most important documents in family law as they provide the information necessary to decide the division of community property and calculate financial support. Because these documents are so heavily relied on, you sign them under penalty of perjury, and a failure to provide complete and accurate information will likely lead to severe consequences.

DISCOVERY

In traditional litigation, the next step may be the discovery process. This includes depositions, demands to inspect property and documents, demands for medical examinations or vocational evaluations (in cases where support may be at issue and someone is claiming a contested medical disability, for example), and subpoenas to other people and organizations that can provide or verify information, like financial institutions and employers. Because California has strict disclosure requirements, many cases don’t need extensive discovery —the courts expect you and your spouse to comply with the mandatory exchange of financial disclosures and other relevant information without the need for formal discovery.

EXCHANGE OF SETTLEMENT PROPOSALS AND MEETING AND CONFERRING

Often, the next step is for you and your spouse to exchange settlement proposals. Once the settlement proposals are exchanged, you, your spouse, and the attorneys will “meet and confer” to resolve as many issues as possible. If a global agreement is reached, then a contract called a Marital Settlement Agreement will be prepared. If you and your spouse cannot resolve all issues, then those issues will proceed to court.

TEMPORARY ORDERS

In the initial stages of some cases, someone needs immediate orders, such as support or specific temporary custody orders. Upon filing a Petition, you or your spouse may immediately file a request for the Court to make these types of temporary orders. Usually, such a request is filed and served, and the hearing will be heard within 60 days of filing.

THE STATUS CONFERENCE HEARING

If issues remain after the parties have exchanged settlement proposals, the Court will set a hearing with the attorneys (and possibly you and your spouse) to identify the current status of the case and determine the next steps required to reach disposition. The purpose of this hearing is to move your case along and for the Court to set timelines and next steps.

THE SETTLEMENT CONFERENCE HEARING

Following Status Conference, if you have not reached a settlement, then you, your spouse, and your attorneys are required to attend a Settlement Conference hearing, usually following the completion of all discovery. Your attorneys will exchange and submit legal briefs to the Court identifying the factual and legal issues that are in dispute, and the Judge will review those pleadings prior to your hearing. At the hearing (usually in person at the courthouse), the Judge (or an attorney volunteer) will share their thoughts on how best to settle the case. These hearings typically last three to six hours and most often lead to a resolution of the case. If the case is not settled, then the matter will be set for trial.

TRIAL

While litigation or trial on contested issues is sometimes necessary, the litigation process is expensive and time-consuming. We make every reasonable attempt to settle our cases without litigation. If a settlement is not possible, you and your spouse will be allowed to present formal evidence at trial. Most family law trials include testimony of both of you, along with testimony from various experts, including forensic accountants, vocational experts, and child custody experts. Family law trials do not have juries. The Judge in your family law matters hears the evidence and issues her decision.

POST SETTLEMENT/POST TRIAL 

After your divorce has concluded, there may be a need to return to court in order to modify prior written agreements or court orders with your ex, such as financial support when someone’s employment or income status has changed significantly since the time of the agreement or trial.

Often both spouses wish to avoid litigation, but they need the guidance of an experienced attorney who will act as a “neutral” professional to assist them with reaching solutions that are acceptable to both of them. Spouses may not be forced into mediation – both must agree to mediation as an alternative to litigation. In litigation, spouses are, by definition, delegating their decision-making authority to the Courts. Mediation is different in that the decision-making rests with the spouses, allowing for greater creativity and greater certainty.

Two questions that often arise in regard to the mediation process are: (1) whether the spouses have attorneys; and (2) if so, whether the spouse’s attorneys may attend mediation sessions. The answer to both of these questions is, “yes.” Many mediation clients work with their own consulting attorneys who will review any proposed settlement created in mediation and who will provide independent advice to the client throughout the mediation. Whether attorneys attend mediation sessions with their client, however, is dependent on the facts and circumstances involved. Spouses with more complex marital estates or other complicated issues are more likely to have their respective attorneys attend the mediation sessions. Also, spouses who feel they need an advocate to assist them during the mediation process are encouraged to have their attorneys attend mediation sessions.

For more information, visit As Your Mediator.

We have litigated all types of family law disputes, including complex business valuation and property division, child custody, spousal support, paternity, and international move-aways. We take a thoughtful, cost-conscious, and strategic approach to litigation.

We thoroughly evaluate the merits of every new family law matter and provide you with a candid assessment — of the issues, the possible outcomes, the timelines, and the costs (financial, familial, emotional). We discuss your goals, your constraints, and what “success” looks like to you. Then, we partner with you to develop a strategy designed to get you there as efficiently and cost-effectively as possible.

We always try to find a way to settle cases whenever possible. Sometimes it’s not possible, for a variety of reasons. In those instances, we prepare a thoughtful pre-trial strategy designed to gather the witnesses and evidence you need. We work with forensics, evaluators, and other experts along the way.

If settlement remains elusive, we’ve assembled your team, we’ve prepared your case, and we’re ready for trial.

In short, we are experienced, methodical litigators with a big-picture mindset. Our singular focus is to get you to a resolution so you can get on with your life.

For more information, visit In Public or Private Court Proceedings.