Divorce Law

a) One of the people in the marriage files a Petition and Summons and serves them on the other person, effectively saying “I am asking for a divorce/legal separation.” This person becomes the ‘Petitioner.’ The Petition can be accompanied by (or followed by) requests for other orders, like custody, visitation, and support.

b) The other person (the ‘Respondent’) files a Response, which usually includes language to the effect of, “I want a divorce/legal separation, too.” If the Respondent doesn’t file his or her response within 30 days of being served, the Petitioner may ask for a ‘default judgment.’

Filing and serving the Petition triggers some very important rules about what the parties can and can’t do with money, possessions, real estate, insurance, and even travel with children.

Many parties can’t reach even short-term agreements on issues like custody, visitation, child support, spousal support, or even payment of attorney fees by the other party. In that case, either party can file a Request for Orders. This will result in a hearing date being set (and, if custody or visitation is at issue, will also trigger a ‘mediation’ appointment with Family Court Services).

The “moving party” is the one who files the motion; the other person is the “responding party” and is allowed to file a responsive declaration. Your attorney will draft your pleadings with you to make sure the judge has all the relevant information ahead of time, in a format that is concise and persuasive.

If the parties settle after the motion is filed, they can sign an agreement called a “Stipulation and Order” and won’t have to go to Court. If not, your attorney will speak on your behalf to get you the best possible result on the day of the hearing. In Sonoma County, you may appear in person or attend your hearing by Zoom. A regular hearing on custody, visitation, support, or attorney fees is about 20 minutes long and doesn’t involve live testimony. You won’t be required to speak and there won’t be witnesses or evidence. That’s why it’s important to have an attorney who can present your case in advance, in writing, so the judge has a tentative decision in mind before the hearing even begins.

Along with (or within 60 days of serving) the Petition, the Petitioner must deliver financial disclosures to Respondent. And along with (or within 60 days of serving) the Response, Respondent must deliver financial disclosures to Petitioner. This is a full accounting of all the money, property, and debts that need to be dealt with in the divorce/legal separation. This is very important! Your lawyer will need to carefully review your assets and debts to help you in the next step, negotiating a settlement.

It’s very common for people going through a divorce to want to start divvying up their property right away. That’s a mistake! Before you can say what you want, or what you’re willing to give up, you have to know what assets and debts actually exist and what each party is entitled to. If someone offered to trade you what was in their glove compartment for what was in your wallet, would you agree without looking in the glove compartment first and seeing what bills you had on hand?

First, make the list of what’s there. Then, see who’s entitled to what. Then, start bargaining.

California is a community property state. Think of it like this: when you got married, you formed a corporation with your spouse. There’s you, there’s your spouse, and there’s the corporation (the marital community).

Everything that was earned or acquired before the corporation was founded (prior to marriage) is the separate property of the person who earned or acquired it. The corporation (the marital community) doesn’t own that item. You owned a Chevy truck before you got married? It is your separate property, and you don’t have to “share” it when you get a divorce or legal separation.

In contrast, everything that was earned or acquired during the life of the corporation, i.e., during the marriage, is community property (except for gifts, inheritances, and items purchased with separate-property funds). It doesn’t matter if it’s your name on the paycheck – it wasn’t earned by you; it was earned by ‘the marital community.’ It doesn’t matter if the retirement account is in your spouse’s name – whatever money went in there during the marriage is owned not by the account holder but by the marital community. That makes it community property, and community property gets divided equally.

Generally speaking, anything you own, and all your debts, are going to be either (a) community property or (b) separate property or (c) some combination. Knowing how property and debts are characterized (separate or community) allows you to bargain intelligently. Your attorney’s knowledge of community property laws, combined with strong interpersonal and persuasive skills, is crucial.    

In almost all cases, the parties are able to come to an agreement about all the matters that need to be adjudicated, or ruled on. The agreement is written up as a Marital Settlement Agreement, reviewed by both parties and their lawyers, and signed. (If the parties cannot agree, even after good-faith efforts and the assistance of the Court through settlement conferences, there will be a trial. However, this is quite rare and it is my goal to help you avoid a lengthy, expensive litigation. It’s called a “trial” for a reason.) The Marital Settlement Agreement is submitted to the Court along with the other papers and forms required for a final Judgment. 

After submission, the Judgment is reviewed and approved by a judge. In a legal separation proceeding, that means that the Judgment is final and the parties are legally separated. In a dissolution (divorce) proceeding, however, the parties cannot be “single” again until at the earliest six months and one day after service of the Petition and Summons.  It doesn’t happen automatically, and it is linked to service (not filing) of documents.

Example: You file for divorce and you serve the Petition and Summons on January 5. You and your spouse negotiate and come to agreements on all your issues. You sign a Marital Settlement Agreement on April 20. The Judgment gets filed and routed through the Court staff, and a judge signs it on May 9. You get a notice that your judgment was entered May 9. When are you “divorced”? When is your divorce “final?” The answer is that your custody and financial issues are “final” on May 9, when the judgment is entered, but you won’t become single until July 6 – six months and one day after service of the Petition and Summons.