Some couples mutually agree that they are no longer in love with one another and decide to separate. For others, it may shock and surprise one spouse when the other spouse broaches the subject. Addiction issues or domestic violence may result in other filings for divorce. California is a no-fault divorce state, so the reason for the divorce is irrelevant in the court’s eyes.
If one party is considering divorce, or their spouse recently asked for a divorce, each party needs to understand the process. Every California divorce requires three stages. However, during each stage, there are many actions that can determine the outcome of a divorce case.
In my 28 years of practice, I have witnessed many spouses who do not realize what is involved in getting divorced. In addition, spouses are often surprised by the amount of child and spousal support they would be entitled to receive. The amount of support to which a party may be entitled is often less than expected.
The Summons and Petition
To initiate a divorce, one party must file a Petition for Dissolution, becoming the “Petitioner” throughout the case. This results in the Court opening a case. The other party, the “Respondent” must be served with the Petition.
After the Petition has been filed and served, some parties may file a Request for Order (“RFO”) asking the court to make temporary orders regarding custody, visitation, child support, and/or spousal support. Typically, filing an RFO occurs when the parties are unable to reach an agreement on one or more issues and need the court to make the decision.
The Declaration of Disclosure
In every divorce in California both parties must complete a Preliminary Declaration of Disclosure. This document includes 10 pages of forms and requires attachments from each party. The reason for this process is that each party has a fiduciary duty to disclose this information to the other.
Each party must reveal all their income and expenses to the other. However, it is required even if the parties have no children and do not wish to receive spousal support from the other parent. This information is crucial for support. A party must identify their income from all sources, as well as their monthly household expenses. This form is also a good tool for determining a party’s post-separation financial needs.
In addition, the parties must identify the assets and debts that are both parties’ responsibility (“community property”), as well as any separate assets and debts. The law requires that the parties provide statements for bank accounts, retirement accounts, credit cards, car loans, etc.
Once the Preliminary Declaration of Disclosure is exchanged between the parties, they can begin negotiating the terms of their settlement to resolve the case in its entirety. This final document is referred to as the Judgment.
The Judgment is the final document that indicates the parties are divorced. The Judgment sets forth the final agreements the parties have on all issues in their divorce. Neither party can be single until 6 months after the Petition was served on the Respondent. However, they can file a Judgment prior to the six months.
The Judgment should resolve all these issues between the parties in one document:
Property Division: The parties need to divide their assets and debts. The Judgment sets forth how these items will be divided. This section will not only include furniture and furnishings but will also address retirement accounts, vehicles, artwork, stocks, real estate, as well as credit card debts, loans, etc.
If the parties reach an agreement outside of court, they can be more creative than if the case went to trial. For example, the parties can agree that one parent, and the children, remain in the house for a period, before the parties sell it. If the case proceeded to trial, the court would most likely order the house sold immediately, and the proceeds divided.
The court typically does not get involved in dividing the furniture and furnishings unless something is of value. In one case in which the parties were quite amicable, the parties marked post-it notes on household items they wanted. If there was an item which they both tagged, they purchased second one, and the person who used it more frequently received the newer item. It is rare to see people get along that well, but typically the parties can divide most household furnishings without much dispute.
Child Custody and Visitation: Again, parents working together can typically create a parenting plan that works best for their family. However, if parents are unable to agree, the court will determine the schedule that it believes to be in the children’s best interests. Some of the decisions to be made include: Legal custody (the ability to make decisions about health, education, religion), and physical custody (where the children should reside), the weekly timeshare plan (day-to-day schedule), as well as holidays and vacations. I have witnessed parents fighting over which town’s little league the child should pay in, or whether the child should attend Catechism or Hebrew school. Parents should sit down with the children’s school calendar once per year and map out the weekly and holiday schedules. This strategy will avoid the last-minute disputes around holidays.
As children get older, or circumstances change, the custody and visitation orders can be modified.
Also, if one parent has addiction issues or there has been domestic violence, the court might place restrictions on that parent’s time. The court can order supervised visitation, random breathalyzers, or other check and balances to ensure the safety of the children.
Child Support: Child support is based on several factors, including but not limited to both parties’ respective incomes, and the percentage of time each parent spends with the child. The court and private attorneys use a computer program to calculate support. Much of the information for determining child support is included in the Preliminary Declaration of Disclosure, so it is important to take care in completing that document.
While one parent may have been the stay at home parent during the marriage, both parties have an obligation to support their children. Therefore, that stay-at-home parent might be imputed with income by the Court, which means if the parent is capable of earning $x/month, the court will include $x/month as that parent’s income in calculating the support. In addition to monthly support, the parents are often ordered to pay one-half of the uninsured medical costs, and one-half of employment-related childcare costs.
For example, if the parties share 50/50 timeshare, Father earns $150,000 annually, while mother was a stay at home parent being imputed with minimum wage of $22,880 annually, Father will pay less than $1,000/month in child support to Mother.
Child support is always modifiable when there has been a change in circumstances (new job, promotion, change in timeshare, etc.). Also, neither party can waive child support.
Spousal Support: There are two types of spousal support: temporary (while the case is pending) and permanent (after the Judgment has been entered). Each are treated very differently by the Court. Temporary spousal support is based on need and uses the same calculator that is used to determine child support. In my example above the Father would typically pay less than $1500/month in temporary spousal support.
Permanent spousal support is based on sixteen factors set forth in Family Code Section 4320. The Court cannot use the computer program used for child support and temporary spousal support. Rather it must apply these factors to each individual set of facts. Often spousal support is for one-half the length of the marriage, depending on the circumstances. If it is a short-term marriage (less than 6 years) it could even be for a shorter period.
Would I Have a Trial?
First, family law trials in California are not heard by a jury, but only by the Judge. Also, over 95% of cases in Marin County Courts resolve without a trial on the above issues. Marin is lucky to have several settlement options before trial, that are not offered in other counties, if the parties are unable to resolve all matters between themselves. Trials are very costly, so important to have an attorney who knows the law, who has a clear understanding of the facts and evidence, and who understands their client’s financial limitations.
If a case is ready for trial, the parties will first attend a Bench Bar Settlement Conference. At this conference, a panel of two experienced family law attorneys and a Judge Pro Tem (an experienced attorney who is appointed to serve temporarily as a judge) will spend all day discussing 2-3 different cases. Typically, these conferences do not resolve child custody and visitation or child support (the parties would need to file and RFO to obtain orders on those issues). The panel rotates through the cases in the morning, giving their opinions about the issues in each case. After they have spoken to all the cases, they check in with each case, providing additional advice, and helping to negotiate if there is a particularly troublesome issue.
If the parties do not reach an agreement by 4:00 pm, they must appear in front of the Judge the following day. The Judge may offer a further settlement conference in front of him or her before setting the case for trial. If the parties still cannot settle, the Judge will set a trial date.
While this process may overwhelm a layperson, a good, experienced attorney will feel comfortable with each stage of the divorce process. If the one party has an attorney, it’s vital that the other party hires an attorney, at least on a consulting basis.
While I have not discussed every possible scenario during a divorce case, I addressed issues that I have frequently seen in family court. My experience and knowledge can help you through the divorce case process. I advise my client based on the facts and the law, with a discussion of the cost benefit analysis. Call today to schedule a consultation with my office.
© Law Offices of Kristine Fowler Cirby Any information you obtain from this article is not legal advice. Legal counsel should be sought for the answers to specific legal questions. This communication is an advertisement as defined by The Rules of Professional Conduct and California Business and Professions Code.