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Initiating a Divorce
The divorce process in California begins by filing both a Summons and a Petition for Dissolution. The petition, Form FL-100, along with any necessary attachments, is a list of marriage facts, and any questions that the court may have to rule on later. For example, if you have minor children you will have to file a “Declaration Under the Uniform Child Custody Jurisdiction and Enforcement Act.””
At this stage a request for custody and visitation detailing the proposed visitation arrangement is optional. Generally speaking, a summons is merely an order to appear in court, but in the case of divorce, the summons needs a response within 30 days.
In addition to the clear notification of “you have been sued,” a divorce summons also includes a number of restraining orders requiring all parties to refrain from such acts as changing beneficiaries of any policy, disposing of property or applying for passports on behalf of their minor children without the other spouse’s written consent.
Serving divorce Papers
Giving notice to a spouse or domestic partner must comply with the legal requirements when initiating a divorce. Notice is needed to keep all interested parties properly informed in a case. In the appropriate jurisdiction, the petitioner (the initiating spouse) must first file the summons and petition for separation with the court clerk. The clerk maintains the initial records and provides copies for the non-petitioning partner to be served, often referred to as the “respondent.”
divorce documents, also known as “service” or “process service,” are a crucial step. Service must meet strict criteria to be legitimate. Formal service is provided at any time that one party submits papers to court. Personal service is required for the initial divorce papers. This means that someone – the process manager – must hand over the papers in person to the respondent in person.
While some may choose to hire a professional process server, others may have an adult friend or a family member who will deliver the documents. This is acceptable only if there is no interest in the case on the server. The petitioning spouse may be asked to include a current picture of their partner when recruiting a professional.
Proof of Service
If purposeful avoidance of service is suspected or anticipated, it may be prudent to hire an experienced process server to deliver divorce papers — in other words, if you believe that your spouse or domestic partner may avoid being serving. The server is expected to complete a Proof of Service form, which is then filed with the court. Evidence of service is required to begin the divorce process.
After completing the initial forms, the court may be called upon to issue temporary orders in the case. Although such orders are only temporary and may eventually be replaced by the final divorce settlement given their temporary nature, they can be extremely meaningful, because even temporary orders have an immediate effect on custody and visitation agreements, child support or spousal support.
You’ve Been Served, Now What?
Once an individual is presented with divorce papers, the timeline for responding starts to run. In California, if there is no response within thirty days of service, the divorce would be treated as uncontested, with far-reaching implications. In such a scenario, the person being served would possibly lose their legal rights by pure inaction.
The petition proposes the divorce terms, as envisioned by the partner that initiated the divorce proceedings. The non-petitioning spouse shall have the right to request changes to the terms of divorce outlined in the petition during the response process. Failure to respond means that the court will likely grant them unless the petitioner’s demands are illegal.
In certain cases, partners can opt to decide directly, outside the courts, on the terms of the divorce rather than request an official response. In that case, then, they should propose a settlement agreement. The agreement must be signed and notarized, and where necessary it will cover concerns such as child custody, property separation, spousal support and child care. Discrepancies may be resolved by mediation but can eventually take time in court.
Types of divorce
California courts classify divorce into four forms, irrespective of whether there is a answer or an agreement between the divorcing spouses (or separating domestic partners),:
There is no response to a petition for a divorce. They are very likely to be granted unless the petitioner’s requests conflict with California law.
Default with agreement
Since there is no response, the petition is representative of a current spousal arrangement.
A response is filed, but the petitioner’s terms are not challenged. The respondent contests the divorce terms with the complainant. It is important to remember that divorce itself cannot be challenged in California. Which means someone who wants a divorce will not need their spouse’s permission to proceed. In short, the other party doesn’t have to express the desire to divorce to finalize the divorce.
The respondent disagrees with the petitioner on the divorce terms and conditions. It is necessary to remember that the divorce itself is not contestable in California. That means that someone who wants a divorce doesn’t need their spouse’s permission to proceed. In short, the other party will not have to share the will to divorce to finalize the divorce.
What to Expect in divorce Court
When all parties agree on all matters, during a divorce, neither will need to see the inside of the courtroom. The marriage may be dissolved by merely filing correct paperwork without needing a court appearance. Even if there are disputes, spouses can prefer by submitting to mediation to avoid divorce court. Like a judge, a mediator does not make binding decisions; rather, he / she only facilitates the conversation.
All divorce proceedings are risky: by submitting to the judge, the parties must allow the state to make definitive decisions on matters of personal interest. Mediation by divorce allows the parties to maintain power of their own fate. While mediation often entails considerable costs, it is infamous that the trials are costly. But, if, with the aid of a mediator, you and your partner are unable to reach an agreement, you can opt to go to court.
divorce Trial Road Map
Trials in divorce proceedings are rare; however, they may occur when the divorce includes small children, complicated division of property or substantial properties. A hearing for divorce starts sometime before a court session.
First, the date of the trial must be set by submitting an appropriate request with the court. At some point, the judge must convene with the lawyers to confirm that during the pre-trial discovery process, all parties have shared all the test materials subject to disclosure.
Discovery is essentially where documentation, such as bank statements or medical records, can be submitted by the opposing party directly from the bank or the health care provider, and must be delivered if required by law. Oral expert testimony in the form of written depositions may be taken down. In California, and generally in the United States, the process of discovery appears to be extended (lasting longer than expected), compared to a comparatively short court trial, which may last less than a day.
At trial, either spouses’ attorneys or a party appearing (on one’s behalf) will present the issues and explain the applicable law in support of the submitted requests. The role of the lawyer is to provide the judge with reasons as to why under such particular situations the relief requested, meaning the desired outcome, is required or preferred by law. The judge reviews all parties’ claims on all matters and decides who has put forward a better, more convincing case. Then he / she issues a final decision.
In trial, the divorcing pair must, as required by law, show the support for their motions in compliance with the procedural rules applicable in court. This means they must present relevant arguments pertaining their motions. Self-representation can be very difficult and demanding, even in relatively simple cases, because of the complexity of these rules, along with the complexity of substantive law.
For example, factual declarations may be submitted as written statements in court. Under penalty of perjury, they must be sworn to be truthful and proper. When accepted, such written comments exist to support a party’s motions, in addition to the arguments made in person at the trial. Because the time for will of the parties to talk in court can be limited, written statements can work against you.
Each court has specific rules that determine a declaration’s format and content, including requirements such as length in pages, font, or paper size. Depending on the type of motion, written declarations may usually not exceed five or ten pages, with additional pages occasionally allowed for expert witnesses. Exceptions are uncommon. Drafting the declaration’s content in a compelling manner could be critical to the outcome of the case. Lack of legal training can prove catastrophic.
The Role of an Expert Witness
Expert witnesses can be very important in family disputes. They can give an opinion instrumental to the court’s decision to admit something as a fact, weighing in on a matter that is hotly debated by both sides. They may be called on to assess property, or even to assess whether a spouse might be fit for parent. Under California law, the courts must look to the child’s best interest, so the court may order a therapist or child psychologist to spend time weighing up with family members on issues such as parenting plans.
But either spouse can introduce expert witnesses; an accountant or actuary may be invited to give their opinion on the financial issues involved. Experts in the field of business or property valuation may appear in court or be deposed. During the pretrial investigation, comments from expert witnesses can be obtained and shared. The parties generally pay the costs for their own experts but expert witnesses can be a sound investment in high-stakes divorces.
Finality of divorce
In California, divorce cannot become final until at least six months have passed after the petition was duly served and the summons was sent. The divorcing partners will enter their arrangement with the court after the mandatory minimum six-month period from the date of service has elapsed. When the judge has signed the agreement on divorce is referred to as the final decision or a judgment on divorce. All divorce parties get a copy of the decree.
A divorce decree is a court order, which includes all the divorce proceedings settlements and rulings that were made. This may include a “Request to Enter Default” and “Declaration of Default,” “Spousal Support Order,” a “Parenting Plan and Timesharing Schedule,” also known as the “Child Custody and Visitation Order,” as well as declarations of property and income. Joinder of the pension plan or attachment of the pension will also be required.
The next step in the divorce process is the execution of an order. Ending a marriage requires the closure of all joint accounts; the transfer of property titles, such as vehicle titles or real estate titles; and the revision of insurance policy beneficiaries. Some real estate may need to be rented.
In the event that the person against whom one or more orders have been raised is non-compliant, enforcement of judgment may become a complex matter on its own, and may again require the assistance of courts and lawyers.
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