DIVORCE ON THE O.C.- THE FIRST FOUR CRITICAL STEPS
Starting a Divorce Action - What Happens First?
Every divorce begins with one party filing documents with the Court and serving (personally delivering through a third party) those documents to the other party, (this includes spouses and domestic partners). Standardized forms are used in California
WHAT FORMS ARE REQUIRED?A. Petition FL 100- This 3 page form describes what you are seeking. Divorce, Legal Separation or a Nullity. There are twelve (12) sections on the Petition.
1. Legal Relationship- What is the legal relationship with the other party? .
2. Residency Requirements- California requires you to be a residence of the State of California for 6 months and for 3 months in the county in which you are filing.
3. Statistical Facts- Date of marriage and date of separation. Under California law there are some important issues related to the length of the marriage. Likewise, the date of separation is important. For example, all income after that date is one’s separate property. If contested the Court can bifurcate (divide or separate) this issue and have a trial just on date of separation.
4. Children- this is pretty straight forward for most.
5. Legal Grounds- California is a no fault State meaning you only need one of the two parties to want the divorce, the other cannot stop that process. Usually the grounds for divorce in this section are 5 (a) (1)- Irreconcilable differences.
6. Child Custody and Visitation- There are two forms of custody- 1). Legal (The right to make important decisions) and 2). Physical – (the right to physical access to the children.) California favors Joint Legal and Physical but each case is very different. For example, if there is domestic violence then the Court would likely give the victim sole legal and physical.
7. Child Support- This section simply gives notice that you will be seeking support. A “Request for Order” or RFO must be filed to schedule a Court date. This should be done concurrent with the Petition or Response or shortly thereafter.
8. Spousal Support- Similar to Child Support, this section gives notice that you may be seeking Spousal support or Alimony. An RFO (Request for Order) must be filed to protect your rights.
9. Separate Property- (See my post on separate property for definitions and examples) In short, if you have separate property, list it here. It is common to write a short statement that you will amend this section as you have more information.
10. Community and Quasi Community Property- In sum, Community Property is that which was acquired during marriage. Quasi-Community Property is property situated out of the State that is considered Community Property because the proceedings are in California.
12. ATRO’s or Automatic Temporary Restraining Orders are list on the back of the Summons. It is important to understand what you can and cannot do. Read these carefully.
B. Summons FL 110- A divorce, like other civil lawsuits, begins with notice to the other party that they have been sued by you and they have 30 days to file a Response with the Court.
C. Family Law Related Cases FL 105- A related case has been filed by one or both of the parties and/or minor children of the parties are involved in other cases.
D. UCCJEA Form FL 105- Details of each minor child.
E. Declaration of Related Cases L-1120- Related lawsuits of the parties or children.
F. A Blank Copy of the Response form FL-120-
G. Proof of Service Summons FL-115-
Steps 2-4; Filing with the Court and Service; Your Financial Disclosure Forms: An RFO.Step Two - Filing with the Court and Service
A. Filing the forms with the Court clerk. Bring the original and two copies (conformed copies). The Court clerk will ensure that all is in order and then file stamp the documents in the upper right corner showing the date of the filing and the case number you will use to fill all other documents with the Court.
B. There is a filing fee for the initial filing (called first appearance fee). Currently that fee is $435.00 just for your documents. The Respondent will be required to pay a like fee.
C. To comply with Constitutional laws on notice, your spouse or domestic partner must receive your filed lawsuit for divorce, legal separation or nullity. Until service has been completed and filed with the Court clerk, the Judge cannot make any orders or sign any stipulations you may have reached with few exceptions.
D. Anyone who is over the age of 18 years old (excepting yourself) may serve the papers to the other party. This includes relatives, friends, a registered process server or the County Sheriff.
Fill Out and Serve Your Financial Disclosure Forms.
A. Schedule of Assets and Debts FL-142 and Income and Expense Declaration FL-150- California law requires each divorcing party to provide written information (called Disclosures) about your assets, debts and income and expenses. These documents may be served with the initial papers but no later than 60 days of filing your petition. (Note: The FL-142 is not filed with the Court. You must file the FL-141-Declaration Regarding Service of Declaration of Disclosure and Income and Expense Declaration.)
“Failure to disclose an asset can result in forfeiture to your spouse. The Court can also set aside or cancel any judgments entered into.”
B. These financial documents are extremely important. The purpose of the documents is to ensure both parties have knowledge of all financial matters so that “equal division” of assets and debts can occur. Failure to disclose an asset can result in forfeiture to your spouse or any judgment entered may be set- aside or cancelled by the Court.
C. If you own real estate you must provide the legal description, deeds and the latest lender’s statements. Vehicles require copies of title documents. Bank and investment accounts require the name, account number and a copy of the latest statement.
D. Separate property or Community Property?- each asset class has four (4) columns of required information.
1. Do you claim this asset as your separate property? Family Code § 770
(a) Separate property of a married person includes all of the following:
(1) All property owned by the person before marriage.
(2) All property acquired by the person after marriage by gift, bequest, devise, or descent.
(3) The rents, issues, and profits of the property described in this section.
2. Community Property Family Code § 760- “Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.”
File an RFO for temporary Orders.