I'm want to file for divorce; What do I need to know?
As a client, we want you to be informed. We know that a more informed client is a happier and more involved client. The more you are involved, the fewer surprises you will have, the less stress you will endure, and the faster your Divorce or other Family Law matter will be completed. If you have questions, feel free to call or click us at any time.
SOME HELPFUL DEFINITIONS...The Divorce Process:
The following is a list of terms and simple explanations of those terms for your information. Not every divorce deals with all of these issues. For example, some people do not have children, and others do not own a home. But, the following will give you a bit of understanding regarding some issues in Family Law. Obviously, if you have additional questions, or would like additional information on any issue, feel free to e-mail us, or call us anything during normal business hours.
"Divorce / Dissolution"
In California Family Law, "Dissolution" is just another word for divorce. It is actually a word borrowed from Civil Law Practice. The word simply means to dissolve something. In this case, a marriage. One interesting reason for the change is that the parties use to be called "Plaintiffs and Defendants" like in a Civil, or even a criminal case. That was found to be undesirable, so the civil term "Dissolution" was adopted. Also, they changed the terms from Plaintiff and Defendant, to "Petitioner" for the person that files for the Dissolution, and the "Respondent" for the person who files a Response, responding to the Petition.
The title given to the person who files a "Petition" or "Dissolution" or "Legal Separation", or to determine "Paternity" or parentage of a child, or any other Petition. Along with a Summons" and a couple other documents, this is one of the first documents filed in any Family Law case. If this is not filled out correctly, or you write the wrong thing in your Petition, or if you do not write something you should have, you could profoundly harm your case from the very beginning.
The "Respondent" in a family law case is the party responding to the Petition filed by the Petitioner. You typically have 30 days to file a Response to a Petition, and the things you write in the Response are profoundly important from the outset. You can win or lose your case by saying the right, or wrong thing in your Response, so get proper legal help before filing this document.
"Service of Process" or "Personal Service"
At the beginning of any Family Law case, the Petitioner will file their Petition and some other document. Then, those documents must be served on the Respondent. Without service, there will be no divorce. In fact, in most circumstances, the Respondent must be "Personally Served". Personal service means face-to-face. Someone must actually hand the Respondent a copy of all the filed papers, plus a couple papers the Respondent will need to respond to the Petition. Any adult, who is not an "Interested party" in the case can serve the other side. The Respondent does not need to sign anything saying he/she received the documents. The person that serves the Respondent, must then fill out a "Proof of Service of Summons", and that Proof of Service of Summons will then be filed with the court before the case is formally started. After that, the Respondent is on the clock, they have 30 days to respond (file the "Response"), or the Petitioner can take the Respondent's "Default". Additionally, in MANDATORY WAITING PERIOD: In California, you must wait 6 months and 1 day after you serve the other party to get divorced. The State calls this a "Cooling off Period". They make sure you have time to really think about the divorce, and make sure you want to go through with it. To get a divorce in California, you must wait 6 months and 1 day after serving the other party to obtain a divorce.
"Default" - VERY LEGALLY DANGEROUS!!!
If the Respondent does not file a Response within 30 days after they are properly served, and continue through the divorce without any further notice to the Respondent. In fact, if a default is taken, the Petitioner can proceed directly to trial and ask the Judge for anything reasonable, like custody of a child, or the exclusive use of the family home, and they would get what they ask for, even though the Respondent isn't even present in court.
In a disputed Divorce, taking your opponent's default can be a very valuable tool, but there is one major Caveat! Generally speaking, Judges do not like to take a person's default, thusly, they are often relatively easy to get a default "Set Aside" (get rid of it) after they have been entered by a Judge. This is because the business of a divorce is very serious, children are often involved. Additionally, child custody, visitation, child support, spousal support, and all property issues are all usually involved. Therefore, Judges want each party to have their rightful chance to be involved in the divorce process if they want to be.
NOTE: VIRTUALLY ALL DIVORCES CAN BE MEDIATED OUTSIDE OF COURT!!!
You may have questions in the following areas, if so, simply click to link..Child Support;
Who Pays Who?
How Much Will I Pay or Receive for Spousal Support?
How Long Will I Get Spousal Support?
The Family Home;
Defining "Community Property";
How is the value of the Family Home determined?
Is it true that I may be awarded more than half the value of the home?
I've heard that I can keep the house, is this true?
We have minor children, can I continue to live at home with our minor children and defer the sale of the home to a later time?
We live together in the Family Home. I want to separate, but neither of us can move out, what happens.
I have moved out of the home. The home is in my spouse's name only, how do I protect any interest I may have in the family home?
What happens to property we own that is situated in another State?
Filing Documents with The Court:
This is one of the most difficult parts of the process for people representing themselves. So many people go to the courthouse, get the divorce packet, or the packet for obtaining child support, or a custody and visitation order, or whatever, and think, "It is just forms, I can fill them out, file them, and go tell the Judge what I want." Good luck! We get at least one call per week from someone that attempted to start their own divorce, or do their own paperwork, or even asked some independent paralegal to "fill out" their paperwork, and now their case is screwed up, badly, or worse, or they lost custody of their kids, or they are only getting $210/mo. In child support, and now need our help to UNDO what they messed up.
The first thing you need to know is, those forms are "Legal Documents". Everything you put on them, every box you check, or DON"T check, can profoundly affect the legal outcome of your case.
On the back of a Petition for Dissolution, called the "Petition," is a section that simply asks you to list your community property. Do you literally list everything? Do you have to go through your house/apartment listing every plate, bowl, fork, spoon, pillow, sheet, TV, other TV, the third TV, VCR, stereo, blah, blah, blah? Then you realize there is not enough room on the form for that. So you realize that can't be what they are really asking for.but then see a note that reads if you need more room, use an attachment. YIKES, maybe they do want you to list every plate, spoon and sheet. One answer is you have to give the other party "notice" of any item of property you want the Court to divide or disburse. "What the heck does that mean, right?" The truth is, the real answer to this is somewhere in between everything you own, and just the big items. You need to realize that these are the very things we learn after doing this for years and years. Call us, we can help you.