Following your Family Law Case and how Family Law Mediation can help YOU.
Following Your Family Law Case This description is designed to assist you with the process in a marital dissolution (divorce) action whether you are the petitioner or the respondent. The following will guide you through the process including the forms that need to be filed and at what point in the process each must be filed. Even though both parties may have filed all of the forms necessary, you will not be "divorced" until at least six months after the respondent has been served with the necessary papers. It is very important the parties understand that missing a step along the way will delay your outcome and may cause unnecessary frustration. At the time a petition is filed, one of the parties must have lived in the state of California for a period of at least six months and in this county for a period of at least three months. If child custody and visitation are an issue in some cases the children must have resided in the state of California for at least one year before the action is filed. The petitioner must be as complete as possible within the petition. The children of the relationship must be identified and all property that the parties wish to have divided must also be identified as specifically as possible. If the parties own real estate, the best practice is to include the "legal description" of that property in the initial pleadings. That information can be obtained from the County Clerk or from the tax assessor's office. If the parties are in possession of a deed to the property, attaching a photocopy of the deed will be sufficient. If there is insufficient room on the petition form to include all of your property, both parties should file a "PROPERTY DECLARATION" (FL 160) at the time the petition is filed. If there is no property to be divided there is a "checkbox" on the petition that allows you to declare that there is no such property (or debt) to be divided. If there are children of the relationship both parties must also file a "UCCJEA DECLARATION" (FL 105) or the clerk will reject your filing. The family code also requires that the parties each file an "INCOME AND EXPENSE DECLARATION" (FL 150). (You may also be able to provide 3 previous Tax Returns and your most recent 3 pay stubs if you are employed or on unemployment) These documents must be filed before either party can be awarded child-support or spousal support (alimony). If you have child custody, visitation, child support and/or spousal support (alimony) you should also be preparing your "Order to Show Cause" (OSC) at or about this time to reduce any delay in that process. You may also wish to seek the services of the Department of Child Support Services (DCSS) to assist you with child support. Although it may seem to be a duplication of effort, the petitioner should also complete (not to be filed) a "SCHEDULE OF ASSETS AND DEBTS" (FL 142) to be served upon the respondent. The property information, the schedule assets and debts, for example, must be completed and served upon the opposing party even if the parties have no property in dispute. If there is no property the parties may simply write on the schedule of assets and debts, "none." That will satisfy the minimum requirements with respect to property issues. It is also necessary that the petitioner included within the service package a completed "DECLARATION OF DISCLOSURE" (FL 140) indicating that the petitioner has made the required preliminary disclosure by serving the documents indicated above. If either or both parties have pension plans, 401k plans are similar pension benefits; the parties should file a "REQUEST FOR JOINDER OF EMPLOYEE BENEFIT PLAN" (FL 372). Along with your disclosures, the parties should provide each other with recent information regarding any retirement plans. Included within the packet of documents the petitioner will be serving upon the respondent, except for the Summons (FL 110), must be blank copies of all of the forms mentioned in this guide. The petitioner must have the entire package described above served upon the respondent by someone other than the petitioner. After those items are served, the person who performed the service must complete a "PROOF OF SERVICE OF SUMMONS" (FL 115) and have it filed with the court. The form tells the court that the respondent has been served at which time the court has jurisdiction to make orders. The parties must ALSO file a "DECLARATION REGARDING SERVICE OF DECLARATION OF DISCLOSURE AND INCOME AND EXPENSE DECLARATION" (FL 141) but for a judgment can be entered so whenever possible it is highly recommended that the FL 141 be filed on select same time the proof of service of summons and the response are filed. It saves the parties time and frustration to get these things handled as soon as possible. It is very important that both parties understand that once the petition is filed with the court neither party may make any changes to any insurance, including automobile and health insurance; neither party may incur debt secured by any community property asset; neither party may sell or make a gift of any asset without the express written consent of the opposing party or a court order. This is referred to as "standard restraining orders" (SRO) or "automatic Temporary Restraining Orders" (ATROS) and are printed on the summons. By the time the petitioner files the original petition package, that petitioner should have been provided a form for both parties to sign that would tell the court be request intervention of a trained mediator (at no cost to the parties) shortly after the response is filed. This new procedure can be undertaken in conjunction with the Family Court Services Mediation in every case where custody and visitation are at issue. The two are completely separate. The voluntary mediation you would select aside from Family Court Services would assist you in resolving all of your issues and could theoretically have your entire case completed for you (with your help) within a very short time after the response has been filed. This is a tremendous opportunity for the parties to come to a speedy resolution with the assistance of a trained neutral party. In the unlikely event that will the case does not settle at the early mediation, the parties should undertake what is known as "discovery" after both parties have completed their disclosures and have filed their Fl 141 forms, they may file an "AT-ISSUE MEMORANDUM" which tells the court that the parties are ready to go to trial with their case. After trial or Mediation, the case will go on to Judgment. NOTE: Except for the property issues, Paternity (Petition to Establish Parental Relationship) actions follow roughly the same course and may be resolved completely in early mediation. PROCEDURAL BULLET POINTS/TIME LINE: ? Filing Petition, UCCJEA Declaration, Property Declaration, Income and Expense Declaration ? Filing Orders to Show Cause (if any) ? + 15 days: Filing Proof of Service of Summons and any OSCs that were filed; Declaration Regarding Service of Declaration of Disclosure (etc), ? +45 days: RESPONSE FILED along with Respondent's UCCJEA Declaration, Property Declaration, Income and Expense Declaration ? Filing Respondent's Orders to Show Cause (if any) ? Family Court Services Mediation (set before hearing on any Child Custody/Visitation Issue) ? + 45 days: Filing Proof of Service of any OSCs that were filed; Declaration Regarding Service of Declaration of Disclosure (etc), ? +45 days: Filing Requests for Joinder of Retirement plans (if any) ? + 45 days: Filing Stipulation/Request to be referred to Early Settlement Conference/Mediation ? Hearing on filed OSCs ? 60 - 90 days from filing of Response: Attend Early Settlement Conference/Mediation ? 60-90 days: If Case Settles at Attend Early Settlement Conference/Mediation, your case will go to Judgment and will be "over" (except for "kid" issues that will continue until they are all adult) ? File At-Issue Memorandum ? 1 - 5 Years: If Case Does Not Settle at an Early Settlement Conference/Mediation, you will continue to go through the litigation process up to and including trial. ? 1 - 5+ years: Judgment