The Divorce Process
Each family law case is unique, however the guide below is an overview of the divorce process in California.
SeparationThe date of separation determines the date that all earnings, acquisitions and liabilities are designated as each party's respective separate property. For example, anything you do from which you derive income is considered your separate property from the date of separation. Conversely, any money you spend will be charged against you as a separate property obligation.
In California, the date of separation is when both parties live separate and apart from one another and there is no intent to reconcile.
What triggers the official date of separation?
In certain situations, the date of filing for divorce is the date of separation. However, it is possible to be separated before filing for dissolution. For instance, some couples make the decision to separate but remain living in the same residence in order to save on living costs or reduce stress for the children. It is important, however, for the parties' behavior to be consistent with their intent. In other words, if a couple separates but later reconciles, that prior separation attempt is ineffective.
Currently, the date of legal separation is a hot legal topic. Recently, the California Supreme Court in In re Marriage of Davis (2015) 61 Cal.4th 846 ruled that a couple must be physically living in separate residences in order to constitute living "separate and apart." In response, the California legislature enacted Senate Bill 1255, which abrogates the court's decision in Davis, and allows family courts to take into account all relevant evidence in determining date of separation, and living under the same roof is not a bar to establishing date of separation.
FilingFiling a Summons and Petition officially starts the divorce proceedings. Once the court clerk stamps the Petition, a lawsuit has been initiated and your spouse must be served with a copy of the petition.
A prerequisite to filing for divorce in California is that at least one spouse must be a resident of California for the last 6 months, and a resident of the county in which they file for the last 3 months. If you currently do not meet the residency requirements for divorce, but do not want to delay filing, you can file for legal separation, which does not have a residency requirement, and later amend your petition for dissolution.
NotificationOnce the petition is filed, your spouse (the Respondent) must be notified. This is called service of process. Service of process can be effectuated either informally or formally through personal service. In any case, the petition must be served by anyone over the age of eighteen and not a party to the action; meaning, it cannot be you!
Notification is important because once your spouse is served, Automatic Restraining Orders (ATROs) are in place. The effect of an ATRO automatically restrains both parties from taking the children out of state without consent (if applicable), and prohibits either party from making any financial transaction outside the normal daily course. (E.g. your spouse cannot liquidate a joint bank account or sell your house without your consent.)
DiscoveryLegal discovery is the manner in which parties exchange information to gather facts on any particular issue, such as the others' income, retirement benefits, expenses, etc. There are certain legally mandated disclosures that must be exchanged in order for the parties to enter into any meaningful resolution, whether through settlement or court order.
Formal discovery is compromised of the following legal resources to illicit relevant information from the other party: form interrogatories, special interrogatories, request for admissions, and request for production of documents. In addition, it may also include the taking of depositions. Each of the discovery mechanisms should be evaluated to produce the best cost/benefit analysis for your case.
Temporary HearingIn order to address lingering and pertinent issues while the divorce is still being resolved, temporary hearings may be scheduled to establish temporary child support and spousal support, as well as use of the marital home. These and other types of temporary awards can also be agreed upon by stipulation by the parties and filed with the court.
MediationAt any point in the divorce process, once the parties have exchanged their required declaration of disclosures with one another, mediation can commence. It may take one attempt, or several to come to an agreement, but all communications and offers to compromise are confidential. In other words, one party cannot probe for information in a mediation attempt, and later use that information in trial.
TrialAny unresolved issues that could not be settled in mediation, will be litigated in family court before a judge. At the conclusion of a trial, a judge will issue a judgment, which is a court order that the parties must abide by.