The Divorce Process in California Explained
A PRIMER ON THE DIVORCE PROCESS IN CALIFORNIA
Just like any lawsuit, a divorce case has a beginning. a middle and an end.
1. The Beginning
In California a divorce case begins with a summons and petition of divorce and a response to the petition. In cases with minor children, certain data such as the age, birthdate, and residence of minor children must be provided in a declaration which is filed along with the petition or response.
The petition for divorce and the response are simple forms requesting statistical data: date of marriage, date of separation, information on the names and birth dates of minor children of the marriage etc. In the form the party fills out what they desire. For example, spousal support, an award of child custody, and support. The party is also asked what the community assets and debts are and how does the petitioner want them divided. The form also asks what the separate property assets and debts are so that the party may request that the court affirm those assets to the party as their separate property in the judgment.
2. The Middle Part One: Disclosures
After the petition has been served and filed and the response filed the parties are obligated to exchange financial data on declaration forms promulgated by the Judicial Council. The data and evidence supporting it are set out in forms FL-150 and FL-142 and FL-140.
The parties will begin the disclosure process whenever they like but generally shortly after the filing in court of the petition and response. This point is where the layperson attempting to do their own divorce usually stalls out. You may want to use a lawyer to help you with the disclosures without paying the lawyer a ton of money see the article linked regarding using lawyers on a limited scope.
The forms are not particularly complicated (says the experienced family lawyer), but they do require a lot of work to compile the data and the evidence supporting the averments contained in the declarations.
Parties often complain about the need for the preparation of these disclosures, and the complaints are valid. The problem is that under the law the parties need to know what each party states the assets and the debts to be and what each party earns. The reasoning is only after knowing what the community property and debts are can the parties negotiate a marital settlement agreement dividing them. The applicable laws are the same whether the party seeking a divorce has lots of assets and debts or very few. Once the declarations are completed and exchanged each side must file a declaration stating that it has been done.
3. The Middle Part Two: Temporary Orders for Child Custody and Support
If the parties have minor children, either party can seek an order of custody and a parenting schedule (aka visitation). The Court does not want to make this order…it wants the parents to agree to an order. The Court’s reasoning is the parents are in the best position to determine the most appropriate custody and parenting schedules. To that end, the parties can a submit a proposed custody order with a parenting schedule on a form FL-355 and avoid a hearing.
If the parties cannot agree, then the one or the other parent files a request for orders for child custody on form FL-300 explaining what that party thinks the custody order and visitation schedule should be. The other parent has the opportunity to respond using form FL-320 and explain what they believe the custody order and visitation schedule should be. Prior to the hearing before the bench officer the parties will be ordered to mediate the custody issue with an employee of the court.
The importance of mediation varies from county to county in some counties for example Ventura and San Bernardino the mediator will make a recommendation regarding a custody and parenting schedule to the judge which recommendation is almost always adopted by the judge. Obviously in those counties mediation is incredibly important.
In other counties including Los Angeles and Orange County the mediator meets with the parents and attempts to reach an agreement regarding child custody and the parenting schedule and if the mediator is unsuccessful, they simply report so to the judge, and they do not make a recommendation.
Custody Orders can be changed after they are set if there is a good reason. Learn how here.
In California, child support is determined using a mathematical formula in the Family Code. The most important factors are the incomes of the parents. The next most important factor is the amount of time the parents have custody. Child support calculations are uniformly made using a computer program. To that end each party must provide an income and expense declaration, the FL-150 mentioned above. Each party is allowed to explain the unique circumstances which might influence the child support order. For example if one parent lives with the children in an apartment in California and the other parent lives out of state but pays for the apartment in which their ex and the children live, the amount that party is paying for the apartment would be taken into consideration when setting support. The issue of child support can also be agreed upon by the parties and submitted to the Court as a stipulation. One uses form FL-350 for that.
4. The Middle Part Three: Spousal Support/Contribution of Attorney Fees
If there is a disparity in the income of spouses, a spouse may seek temporary support payments (commonly referred to as alimony). This occurs after a petition for divorce has been filed but before the divorce trial or stipulated judgment has been issued. The party seeking support asks the court through a formal, written request for orders of support on the form mentioned above, the FL-300. In Los Angeles and Orange County, the court will consider gross income and tax implications and will follow what is called the Santa Clara guideline. This is 40% of the spousal support payer’s net monthly income reduced by 50% of the spousal support receiver’s net monthly income. Since temporary spousal support is aimed at allocating the family income to maintain the parties’ pre-separation living conditions (or get as close to it as possible), the court sometimes does not consider the earning capacity of a non-working spouse. If there are children of the marriage the child support and spousal support are computed together. Each party must provide an income and expense declaration, the FL-150 mentioned above. Each party is allowed to explain the unique circumstances which might influence the spousal support order. For example if the divorcing parties have no children under the age of 18 and one spouse has moved out of the marital residence but is continuing to pay the mortgage on the marital residence in which the other spouse remains the court can consider those payments in setting temporary spousal support.
If the circumstances warrant it, one spouse can ask for a contribution of attorney fees in addition to child or spousal support. Learn how here.
5. The End: By Marital Settlement Agreement
Most marriages are resolved with a marital settlement agreement which is then made a part of a proposed judgment which is ultimately conformed and issued by the court. The court maintains the ability to modified child custody and parenting schedules until a child reaches 18. The court maintains the ability to modify child support until a child reaches 18 or until they have graduated from high school if that happens after age 18 and the child is still living with one of the parents.
In the marital settlement agreement the parties describe the present custody order and child support order, if any, the agreement makes provisions for the continuance of child support as well as the continuance of the child custody and parenting schedules. Parents often tweak the child custody and parenting schedule order in their marital settlement agreement based on their experiences during the pendency of the case. The parties address the characterization of property as community or separate and address the division of their community assets and debts.
For middle class and wealthy couples the division of community property and debt can be a complicated division. Retirement accounts, pensions (usually only applicable now to federal, state, and county employees) real property, stock accounts, bank accounts as well as the debts of the community must be divided. Those debts are usually fixed on the date of separation to which the parties have agreed.
Spousal support must be addressed in the marital settlement agreement as well. Interestingly, long term support that is paid after the case has reached disposition may not be calculated using the algebra formula written into the code instead 14 subjective and objective factors must be considered in determining long term support. In marriages longer than 10 years the default setting of the court is that the court will maintain the ability to modify spousal support indefinitely until the remarriage or death of the payee or pay or spouse. However, the parties can negotiate the issue of spousal support. The parties can agree on a fixed period during which support is paid and after which no further support will be paid. The court will accept any marital settlement agreement clause regarding spousal support as long as it is reasonable in light of all the facts.
6. The End: By Trial
Trials are not uncommon. Usually, the parties can agree on some of the issues. The typical issues are characterization of an asset or debt as community or separate, date of separation (which can be important to whether an asset is a community or separate asset or debt), division of community property and debt, child custody, child support, spousal support.
Sometimes one or more issues remain unresolved. The parties can attempt to mediate the disputes and the court can order them to a settlement conference overseen by a bench officer or retired bench officer but if those efforts are unavailing then a trial will take place on the disputed issues.
Unfortunately, many family law attorneys are not very familiar with the Code of Evidence or with trial procedure and if a party is forced to undertake a trial it is wise to ensure that the attorney of record has experience conducting family law trials.
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