Los Angeles Divorce Lawyers
Obtaining a divorce in California requires preparation and effective legal counsel. In California, as it’s a no-fault state, culpability is not an element of the divorce. Any spouse is entitled to petition for a divorce based on irreconcilable differences, simply asserting the union is not working out as expected.
The spouse initiating the process is the petitioner and the other spouse is the respondent. A petition for divorce is essentially a lawsuit, where a complaint is filed against another party requesting that action be ordered by a court. In the case of a married couple, one individual wants a judge to make a formal determination regarding the dissolution of the marriage, and if necessary, the terms of child custody, child support, distribution of property and debt, and sometimes alimony.
The process begins with the petitioner’s attorney gathering information in order to file the initial documents, the Summons and Petition for Dissolution, which includes details such as date of marriage, length of residency, terms of child custody, child and spousal support, and a listing of separate and community property. This information and the initial filing document is crucial as it proposes the petitioner’s terms for the dissolution of the marriage.
The next step for the petitioner is to have the complaint served upon the spouse. Service of legal documents is a legal requirement in order to provide notice to the respondent that a formal complaint for divorce has been filed. Effective service of process can be complicated and has strict legal requirements. Personal service is required after filing the initial divorce papers, which means that a third party adult must physically deliver the documents to the respondent. Once the court receives proof of service, divorce proceedings may commence.
The respondent spouse has 30 days from the date of service to respond to the complaint, and is afforded the opportunity to formally present defenses to assertions or raise additional issues. A failure to respond would result in a default judgment, allowing the court to grant to the petitioner the requests in the initial petition.
Unless the spouses reach an agreement regarding all terms of the divorce, the litigation process begins and may last at least six months in California. If at any time during this process the spouses agree to all the issues, they may formally document their agreement, execute and file it in court. Courts encourage parties to resolve their differences via Alternative Dispute Resolution, various tools to aid in negotiating an out-of-court settlement. Mediation is a valid option when spouses are open to discuss the pending issues in a divorce. It’s an informal process where a mediator, a neutral party, meets with both parties and facilitates negotiation of all issues. Mediators are highly trained in being able to communicate to both parties the pros and cons of their respective arguments in order for them to achieve a more realistic expectation of the potential results of litigation. Arbitration is another form of resolution between spouses, where they allow a neutral arbitrator to hear their case and make a binding determination of all issues in their divorce. Collaborative divorce requires both spouses waiving their right to contest the issues in court, and essentially commit to agreeing to all terms of the divorce in a private proceeding though collaborative divorce attorneys. These ADR methods are beneficial to all parties when they are interested in avoiding the stress of appearing in court. When petitioner and respondent reach a mutual agreement through any of the ADR procedures, said agreement is presented to the presiding judge for review and approval.
In the alternative, spouses unable to reach an accord on every issue in their divorce must proceed to trial and place the case in the exclusive determination of the judge. Trials can be frustrating due to having lost the ability to further negotiate, as will as sensing a loss of control over the matter, and can be quite expensive.
Will service by publication work if I can’t locate him?
In general, personal service is required in a divorce case. This means that you must have your spouse personally served, whether that means you hand the paperwork to them yourself, hire the sheriff or a process server, or send it by certified mail.
However, there are times when this just isn’t feasible. Perhaps you and your spouse have been separated for a long time, lost contact, and you don’t know where he is. Perhaps he moved and failed to leave a forwarding address. Maybe he’s couch-surfing and you don’t know where he’s staying or when he’d be there.
In a situation like this, service by publication can be permitted. It’s important to make sure that you do it properly. There are several things you must do to ensure that your service by publication is considered service by the court.
Keep notes on all attempts to find him
Even if you already know that you won’t be able to find him, you must attempt to locate him. Start with the last known address you have for him. Ask friends and relatives for contact information. Contact his last known employer. Exhaust all the options you can think of, and keep notes on all of your attempts. Include names, dates, times, and the result of each attempt – including if someone refuses to give you information on his whereabouts. While you can start looking for him before you file, you want to make sure that your attempts are fairly recent, or the court may make you do it all again.
Ask the court for permission
Once you’ve exhausted all attempts to find your spouse, file a motion asking the court for permission to serve him by publication, which is also known as constructive service. You will include your notes about your attempts to find him, as well as an affidavit indicating that you have tried and failed to locate him. A lawyer can help you with this, if you’re not sure what to do.
If the court denies your request, you’ll need to continue trying to find him. But if the court grants it, they will issue a new summons and give you more time in order to serve him by publication.
Serve him by publication
Each state has different rules for exactly what constitutes constructive service, and you’ll want to make sure that you follow the rules exactly. Most states require the notice to be published in one or more newspapers. They often require it to be published at least two separate times in each newspaper, with a period of time (often about 7 days) between each notice. It usually must be done within a certain period of time from when you’re given permission, as little as 30 days or as many as 120.
What happens next?
Assuming that you’ve properly published the notice to meet the requirements of service by publication, after the appropriate amount of time has passed for you to publish the notices, and the appropriate amount of time has passed for him to respond, the court will move forward with a default divorce.
What if I felt pressured to sign the divorce agreement?
Peer pressure is not something you leave behind when you are in elementary school or high school and other kids want you to do things you don’t want to do. It’s something that often follows you in life, and it’s not always easy to manage. There are times when you will feel the overwhelming need to deal with people when they pressure you to do things you don’t want to do. Pushy salesmen trying to get you to buy things you don’t want. The people who are on top of you the moment you walk down a busy street in New York City, and even those trying to sell you a car.
Pushy people are everywhere, but you certainly don’t assume you’ll walk into an attorney’s office and feel pressured to sign divorce papers when presented with them by your spouse’s attorney. You might not want to deal with that, but it happens in many divorce cases. You’re not ready to sign the papers, but you do it because you feel overwhelmed by your spouse’s requests and even by the requests of his or her attorney. It’s not a pretty process, but it happens all the time.
Now is the time to think about this. Did you sign papers you weren’t in agreement with? You can’t avoid signing them forever to stop a divorce from happening, but you can avoid signing them when you don’t agree with what you want. Perhaps you felt pressured to sign even though you don’t agree with the custody, the alimony, or the division of assets. It’s time for you to figure out what to do next.
What if I signed divorce papers because I was pressured?
Unfortunately, it’s not always easy to decide you were under duress when you signed the paperwork and see anything happen because of it. You can talk to your attorney about it and see what kind of paperwork can be filed during this particular time in the divorce process, but there is very little you can do to stop a divorce from going through because of this.
The best you can do is provide proof you were pressured. If you have proof, a judge might decide you can go forward with your request to re-handle the paperwork and change a few things. For example, if you have emails or voice messages your spouse sent to you threatening you if you don’t sign the papers immediately, you can use those to prove you were under duress.
Did he send you threatening messages or do something to hurt you? If so, you can ask that the paperwork is voided and re-written so you can agree to sign it in a way that works for you. The paperwork can be changed, but you must prove you felt the need to sign due to pressure rather than you simply changed your mind about a few things.
Call an Attorney
If you haven’t called an attorney already, now is the time to do it. You can find an experienced divorce attorney who is willing to walk you through this process to help you get what you need from the person who is pressuring you. You deserve to get what you want and ask for what you need in this divorce. You don’t deserve to feel pressured into doing anything you aren’t comfortable with doing.