A Family Law Case: From Inception to Completion.
This blog aims to provide the reader with an outline and timeline of all the procedural steps taken in a typical Family Law matter in California. As a caveat, a given case may not get through every procedural step mentioned as the parties can end the matter by settling. However, if the matter were to go all the way through, this is what it would look like.
You’ve all heard today’s narrative about marriage: over fifty percent of couples who marry end up divorcing. As the narrative goes, a couple marries, falls out of love and ends up wanting to divorce. Now what?
Usually, the first thing people do when looking to divorce their partner is they seek representation from an attorney. In seeking representation, the individual is essentially interviewing/consulting different attorneys they are interested in hiring.
The purpose of the consultation is for the attorney and the individual to get to know each other on both a personal and professional level. When a comfort level is established, the individual tells the attorney about their matter and the attorney then, if they feel it’s a case in which they are competent to handle, offers the individual a tentative game plan about how to legally attack and remedy the problem. If both the attorney and individual feel they are compatible to work together, a retainer agreement is then signed and the attorney is then representing that individual.
Filing of Summons and Petition
Once the individual has found counsel, the next step is to file a Summons & Petition with the court, and serve it on the Respondent.
The first spouse to file for dissolution with the court, also known as the Petitioner, must complete Summons form (FL-110). This form simply identifies, who the Petitioner is, where the court which the Petitioner filing is, who the Petitioner’s attorney is and where that attorney’s office is located. Also, on page two of the form there is a standard Family Law restraining order that restricts each party from doing certain things such as changing the beneficiary designation on any insurance or removing children out of state.
The Petition is a form that identifies who the attorney is, the court in which dissolution is filed, who the petitioner and respondent are, what the petition is for, what the relationship between the spouses legally is, resident requirements, statistical facts about the marriage, information about the children, if there are any, the legal grounds for filing, child custody and visitation, child support, separate and community property claims and any other request).
Remember, the Summons and Petition must be filed and served upon the other party together.
As aforementioned, if you are the first to file, you are labeled the Petitioner. Opposite the Petitioner is the Respondent. The Respondent is to respond to the Petitioner’s Summons and Petition with form FL-120.
The Respondent has thirty (30) days to respond and file form FL-120 with the court. After filing it with the Court, the Respondent must also serve it on the Petitioner.
Form FL-120 is essentially the mirror opposite of the Petition. It identifies who the attorney for the Respondent is, the court in which dissolution is filed, who the Petitioner and Respondent are, what the petition is for, what the relationship between the spouses legally is, resident requirements, statistical facts about the marriage, information about the children if there are any, legal grounds, custody and visitation, child support, separate and community property claims, and any other request.
Preliminary Declarations of Disclosure
FL-140: Declaration of Disclosure
After the Petitioner files and serves the Summons and Petition and the Respondent files and serves their Response, Discovery begins and each party must prepare and serve a Preliminary Declaration of Disclosure (PDD). Discovery is the portion of a case where fact-gathering occurs between the parties. Each side is now able to see, in greater detail, what the other person has and claims.
The PDD is comprised of forms within forms. The PDD itself is a simple one page form labeled FL-140. However, to complete the PDD forms FL-142 and FL-150 also need to be completed.
The FL-140 form requires the individual to provide forms 142, 150, an attachment of your tax returns, a valuation of the Community Property, statements of material facts of things which the community is liable, and a written disclosure of any income opportunities from the date of separation that took place during the marriage.
FL-142: Schedule of Assets and Debts
This form describes in detail all of the assets and debts that the individual has acquired previous to, during and after marriage. This form is fairly self-explanatory and straightforward. Since it is preliminary, it does not have to be perfect, but it should be to the best of your knowledge. Remember, however, anything you fill out and sign under the penalty of perjury can be used against you. So, be sure to be as accurate and truthful as possible in filling every document out.
FL-150: Income and Expense Declaration
This form describes, in greater detail, the individual’s income and expenses. This form gives the Court and opposing counsel more detail about your education, occupation, income, taxes, expenses, etc.
As aforementioned, be sure to include your tax returns, a valuation of the Community Property, statements of material facts regarding the community assets and debts and a written disclosure of any income opportunities which arose during marriage.
The PDD is a great tool for gathering initial information about the opposing party as you are able to see what their assets, debts, income and expenses are. Often, these figures will change as more information is collected as the case moves forward. Any settlement discussions should wait until both sides have served their PDD’s so that each side has a good understanding of the marital assets and debts.
Requests for Orders Pending Litigation
At this stage in the divorce proceedings, there are no orders are agreements in place that bind the parties. As a result, a request to the Court is often made for temporary orders. These are made to provide structure until the matter is heard at trial. These orders are only temporary and subject to change.
As previously mentioned, Discovery is the process in which each side is able to find more information about the other. In this stage of discovery, each side usually 1) Requests a demand for the production of certain documents, 2) Serves interrogatories, 3) Serves subpoenas and 4) Takes depositions. These forms of discovery are often very helpful because a lot of information is gathered and used for both settlement and trial purposes.
Voluntary Settlement Conference
After the parties have exchanged enough information with one another, the attorneys then request both parties to attempt to settle as many issues as they can with a voluntary settlement conference. The reason attorneys offer to do this is to limit the issues to only those in dispute and encourage the parties to settle on as many issues as possible. By agreeing on issues and limiting them before the court, it will cut down on courtroom time and attorney fees.
However, as the title suggests, this is voluntary, so the parties do not need to agree to move forward with this type of settlement conference.
Trial Setting Conference
A trial setting conference is set when the matter is at issue for adjudication because no settlement can be reached. This is typically nothing more than just a calendaring event for the mandatory settlement conference and trial.
Mandatory Settlement Conference
The mandatory settlement conference is much like the voluntary settlement conference. The only differences are that it is mandatory and it is court enforced. When we say it is court enforced it is to say the Court makes you do it, not that you will be in court. The procedure involved will be just like the voluntary settlement conference, in that it will only be the lawyers and the parties working to resolve the matter.
Remember, however, this is mandatory; it must be done before the parties go to trial.
Final Declaration of Disclosure
The Final Declaration of Disclosure is just like the Preliminary Declaration of Disclosure except it must be served and filed forty-five (45) days before trial and the values must be updated as close to the trial date as possible.
Trial is where all the disputed issues will be heard that could not be solved at both the voluntary and mandatory settlement conferences. At trial, you are not afforded a twelve-member jury but only a single Judge, who will make all the decisions.
In Southern California, Family Law trials are usually not held in consecutive days, they are usually pieced together throughout different days, weeks or months. This is the best the Family Courts have to offer as their calendars are impacted because there are not enough Judges or Courtrooms. Be sure to keep that in mind when going to trial, it may take some months to get through.
The judgment is the final decree made by the Judge. His ruling will stand as long as it is not overturned on appeal.
An appeal is when the losing party asks the Court of Appeal to review the case. The losing party must show that there was a mistake made by the Trial Court, such as to overturn the previous ruling. There must be some legal error by the judge (i.e. wrong application of law or abuse of discretion).
Post Judgment Modification
A post judgment modification occurs when there has been a substantial change in circumstances since the entry of judgment. Many attempt to modify their judgment to change child and spousal support and custody and visitation. A variety of circumstances can occur to modify a judgment, such as a change in income or living situation. Often, Discovery is initiated again to gather evidence to prove the change in circumstances.
There you have it. This is the procedural process that takes place in the California Family Law Courts. We understand this process can be very daunting and confusing, which is why our firm has written this blog. We hope it has helped educate those looking at, going through, or thinking of modifying their divorce. If you have any further inquiries regarding this blog or Family Law in general, do not hesitate to give us a call at 1-877-877-1-LAW or visit us at www.sullivankrieger.com.