Q: What can I expect in my dissolution action, and do I need an attorney to represent me?
A: The Family Law court system is built to be accessible to non-lawyers, but dissolution actions involving contested property, custody or support issues can be legally intensive and require a great deal of paperwork to file, appearances to make and information to gather. For non-lawyers or those that don’t have the requisite experience it is a daunting and stressful experience – something you don’t need in the midst of the most stressful time of your life.
In California, the terms dissolution of marriage and divorce are interchangeable and California is a no-fault state, meaning that the court will not make a finding of wrong doing against either spouse. Dissolution of marriage (or “no fault divorce”) can be granted if the court finds there are “irreconcilable differences” that have caused the breakdown of the marriage. This means that if one spouse wishes to end your marriage, he or she can do so, even if the other spouse disagrees.
Residency requirements state that in order to qualify for dissolution of marriage or a divorce, one of you must have been a resident of California for six continuous months and a resident of the county in which you are filing for three continuous months prior to the filing of the petition for the dissolution of marriage. The petitioner is the spouse requesting the divorce or dissolution. The respondent is the spouse being served with the summons and petition. A minimum period of six months must transpire for the divorce to be granted and the marriage to be terminated, once the respondent is served with the summons and petition.
California is a “community property” state. This means that all property that was acquired during the marriage, including your home(s), income, and personal property is presumptively considered to be community property, and will be divided equally by the court. The family law court will also equally divide any debts acquired during the marriage. Any property that was acquired before marriage, after the date of separation, or by bequest or inheritance is presumptively the separate property of the spouse who acquired it.
A typical dissolution of marriage or divorce requires the following steps which Brian will undertake on behalf of his clients:
1.The filing of a petition for the dissolution of marriage is filed and personally served on the respondent along with paying a first appearance fee of $435.
2.The respondent has thirty days to file a response to petition for the dissolution of marriage, and pay a first appearance fee of $435.
3.Request temporary court orders by filing for a Request For Orders hearing (often referred to as an RFO hearing). At this hearing, the judge can make temporary awards of child custody, child and or spousal support, attorney’s fees, or property orders, if appropriate. Many requests for RFOs are typically filed within 60 days of most divorce actions being initiated and they result in essential hearings as they will put into place temporary orders that will last during the pendency of a divorce action (unless modified by agreement of the parties or subsequent order of the court). As a result of the need to seek and obtain a RFO and temporary orders, this means that a lot of work is typically performed at the earliest phase of most divorce cases. As a result, marital dissolution actions typically start with the parties having to be ready to hit the ground running.
4.The discovery process begins, and both spouses exchange financial information and documents that are relevant to the case. The Preliminary Declaration of Disclosure is mandatory for both sides. This is a court form in which each of you lists the community and separate property, provide estimates of value for each asset and debt, exchange current income and expense declarations setting forth employment earnings and personal expense information. Other forms of discovery are form interrogatories, special interrogatories, demands for inspection of documents or things, requests for admission and depositions (oral examination under penalty of perjury).
Both spouses have a fiduciary obligation to the other to provide financial information to the other upon demand. Discovery is an on-going process until the dissolution case is almost ready for trial. If the parties are in agreement, then a settlement has been reached.
1. Once discovery is largely completed, settlement of the case can be discussed. If the case is resolved by agreement, one of the attorneys will prepare a Marital Settlement Agreement, which will contain all of the terms of the agreement. This is a contract that is signed by you and your lawyers.
2. If you do not agree on all of the key issues in the case (e.g., property division, support, custody and professional fees), a trial will take place.
3. After both parties sign the Marital Settlement Agreement or after the trial has concluded, one of the attorneys will prepare a Judgment of Dissolution of Marriage. This is the document that contains all of the court’s orders. The judgment is filed and the court mails a Notice of Entry of Judgment to each attorney. This means the divorce has been finalized.
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