10 Step Guide to the California Divorce Process From Petition to Judgment
Learn California's divorce process from start to finish
Learn California's Divorce Process from Petition to Judgment
Questions about California's divorce process are common and expected.
Why is it important to know the process in our State? Because it is important to have a general understanding of where divorce cases go from the start to finish.
That is why we wrote this guide on the divorce process - to provide a road-map.
We wrote this with the assumption that you are going to be represented by an experienced California family law attorney.
That is how the questions are tailored because you should not represent yourself and the information you learn here will help you understand how the California divorce process works with quality representation.
10 Steps Through the Divorce Process
The following are links to each step in this guide. If you want to skip ahead, click on the step number.
Step 1 to the California Divorce Process:
The Divorce Petition
The California divorce process starts with a summons and petition.
A petition for dissolution of marriage is like a lawsuit.
Instead of filing a lawsuit by a plaintiff against a defendant, a spouse files a petition (and is the petitioner) and asks for a divorce against the other spouse, who is named as a respondent.
In this section of the California divorce process, we will
discuss the filing and service of a divorce petition.
I want to file for divorce. How do I start the California divorce process?
The California divorce process starts with the filing of a summons, petition for dissolution of marriage and related forms. Certain counties allow e-filing while others still require manual filing at the courthouse.
The summons is the judicial council form FL - 110. The petition is the judicial council form FL - 100.
The petition is a check-the-box form in some areas and requires a narrative in other areas.
It is unwise to prepare the petition while self-represented.
An experienced family law attorney's advice is important not only to ensure you check off the correct boxes but that you use the proper language when identifying community versus separate property.
Once the spouse and the spouse's attorney have properly completed the summons, and completed, dated and signed the petition and the related forms, the spouse dates, and signs the applicable forms.
From there, they submit the forms for filing in the proper county.
There is usually a filing fee, which in most counties is $435. Once filed, the California divorce process begins.
What happens with the summons and divorce petition after it is filed?
The court assigns a case number and that is stamped onto your petition.
Now you officially have an open divorce case which includes a case number.
It is then time to transition to a critical and sometimes confusing part of the California divorce process - serve the divorce petition on your spouse.
Is there a filing fee to file the petition and a summons?
In California, there is a filing fee paid to the clerk of the court.
As of the date we write this page, the filing fee in most California counties is $435.
If a person cannot afford the filing fee, the California divorce process allows the spouse to file a fee waiver request. There are specific forms for that request.
Does it matter whether I or my spouse file first?
We have written an article on exactly the subject of filing first and whether it matters. Please check it out.
How are the divorce summons and petition served on the respondent?
The divorce summons and petition are typically personally served on the respondent.
Personal service means an individual who is not the petitioner and over the age of 18 causes the service to take place by handing the summons, petition, and related forms to the respondent.
The California divorce process then requires that proof of service (written and signed document on the proper form) be filed with the court.
Family law attorneys will often use a registered process server or a company that employes process servers for this purpose.
Claims of improper service or no service at all, even if the claim is not true and service really did occur, can happen. We don't believe it is a good idea to use family or friends for this purpose.
Here is an article on how to serve divorce papers, and the common sense behind it.
Does the California divorce process allow alternatives to personal service?
Yes, the divorce process does allow for alternatives. You must show that diligent attempts were made at personal service or substitute service.
For more general information on service of the divorce petition in a manner other than personal, please see the State of California's court website on these issues.
What if the respondent agrees to accept service by mail?
The divorce process does allow for service by mail.
There is a certain form that must accompany the summons, petition, and related documents, which the respondent must date, sign, and return for the service to be effective.
The form is called, notice and acknowledgment of receipt.
Your family law attorney will send the summons, petition, and related forms with a cover letter to the respondent along with the notice and acknowledgment of receipt.
Your attorney should then follow up if it is not signed and received back within a reasonable period (typically no later than 20 days).
What happens after the divorce summons and petition is served on the respondent?
Depending on the method of service, the respondent then has a certain statutory time to respond.
With personal service, that time is no later than 30 days from the date of the personal service.
Step 2 to the California Divorce Process:
Response to Petition
The response to the divorce petition is the respondent's way of telling his or her spouse and the court that he or she intends to participate in the process.
A failure to file and serve a response on time and within the statutory deadlines may cause the petitioner to take the respondent's default.
The default may have significant adverse consequences to the respondent because he or she may be shut out of the California divorce process and not have a voice when the court makes orders.
As you will learn below, a response to a petition is not always the form FL - 120. A respondent may choose to challenge the petition through various motions available to him or her.
How does the respondent respond to the divorce petition?
The form of the response (FL-120) is very similar to the petition and contains similar requests for the same information.
Once the response to the divorce petition is completed, it is signed and filed with the court.
The FL - 120 is not the only option available in the California divorce process.
If the respondent believes the court does not have the power (called jurisdiction) over him or her or California is not the proper State to rule on the divorce, the respondent may file one or more motions and requests.
These include but are not limited to a motion to dismiss the divorce. What we list here are not the only grounds to ask for a dismissal.
This is a complicated procedure and it is important the respondent obtain legal advice regarding his or her options to determine what motions are available to the respondent and the timelines associated with it.
Does a response to a divorce petition also require a filing fee?
Yes, the divorce process is the same as the petition. The court will require a filing fee unless you apply for a fee waiver and the court grants your request.
How is the response to the divorce petition served?
Typically, the response to the divorce petition is mailed to the petitioner, if the petitioner is self-represented, or the petitioner's lawyer.
The California divorce process also includes the filing of that proof of service with the court.
Nuances to Steps 1 and 2:
Amending the Petition or Response
There are nuances to the petition and response during the California divorce process.
In my many years of practicing law, I have yet to see a petitioner correctly complete a petition or a respondent complete the response when they attempted to do it on their own.
So far, without exception, they checked the wrong box, failed to check a box or did not provide the information he or she should have provided in the petition or response.
Sometimes, it is a minor mistake. Sometimes it is much worse.
Fortunately, mistakes in the petition and response are correctable most of the time. There is a procedure for such correction as part of the California divorce process.
Another nuance to the petition and response phase of the divorce process involves the default.
We discuss this in more detail below.
What happens if I do not complete the divorce petition or response correctly?
This mistake is precisely why you need an experienced family law attorney to represent you.
Failing to complete the divorce petition or response and checking the incorrect boxes or failing to include the proper language can have significant, adverse consequences to your case.
However, a spouse may correct these mistakes through the filing of an amended petition or response.
The procedure for that can get complex depending on the timing of it.
Sometimes, you are able to amend the petition or the response without the necessity of getting the other spouse's agreement and a court order.
For example, a petitioner may amend his or her petition before the respondent files and serves his or her response.
However, the petitioner can only do this one time, and any further amendments require a court order.
It is not unusual to amend a petition and response.
Even if California law requires a formal court order, spouses, through their attorneys, should reach an agreement through a stipulation and order.
The word stipulation means agreement. Courts liberally allow amendments most of the time.
An experienced family law attorney will guide you through this divorce process and handle it for you.
What happens if the respondent does not respond to the divorce petition?
Assuming there was proper service, the California divorce process then allows a default against the respondent.
How the petitioner did complete the petition and whether the petitioner included the proper information impacts what the court orders in a default proceeding (called a default prove-up hearing).
That is why we recommend a divorce lawyer be involved in this entire divorce process.
So long as you hire an experienced and knowledgeable divorce attorney, he or she should properly complete the petition and file the proper default paperwork.
The California divorce process then allows for the court to review that paperwork, approve it and enter a default judgment.
Will I get everything I want in a default proceeding if the respondent fails to respond?
Do not assume you will get everything you request.
For example, child custody laws require the judge to decide such cases based on the children's best interest. The court may not order what you want if the court believes it is not in the children's best interest.
Regarding child support, the court typically orders guideline child support unless there is a lawful ground for deviation from it.
On California spousal support, the court may decide not to terminate spousal support even if you ask for it, especially in a long term marriage.
These are just a few of the many examples of how the court may not give you what you request even if the respondent has failed to participate and whose default the court entered.
My spouse took my default. What can I do?
Time is of the essence. The worst thing you can do is wait or do nothing.
The California divorce process and our laws do prefer results on the merits but do not reward those who sit on their rights.
You must immediately hire a family law attorney to review your file, find out when the default was taken and seek to set it aside.
There are specific timelines and specific grounds for setting aside a default and, if they are missed, you may lose the ability for a set-aside.
Step 3 to the California Divorce Process:
Requesting Temporary Custody or Support
After the petitioner and files and serves the petition and either before or after the respondent files and serves the response, one of the spouses typically file a request for order.
The request for order commonly seeks temporary orders on the following issues.
- Child custody,
- Parenting time (also called "visitation"),
- Child support,
- Spousal support (also called alimony),
- Attorney's fees, and
- Property control orders.
These are not the only issues a spouse may place in front of the court on a request for court orders.
The California divorce process has a set procedure for the filing and service of such requests for order as well as the hearings for them. Learn more about them below.
When can I file the request for temporary orders on custody and support?
The petitioning spouse may file the request for order at the same time as the divorce petition or after he or she files with the court and serves the divorce petition.
For the respondent, he or she may file the request for order with or after he or she files with the court and serves the response to the petition.
The California divorce process does not dictate a strict timeline on these issues. In some cases, it makes sense to file them at the beginning of the process while, at other times, at a later date.
How do I request temporary child custody, visitation and support orders?
A request for order includes specific Judicial Council forms and one or more declarations under penalty of perjury that set forth the requested relief and the basis for it.
On support issues, an income and expense declaration is also necessary, and this is also a judicial council form.
The California divorce process requires such forms and documents to ensure the other spouse and the court understand the nature and extent of the relief requested.
Do I have to disclose my income and expenses on the income and expense declaration?
Yes, it is mandatory.
A spouse signs the declaration under penalty of perjury. A spouse who willfully provides false or incomplete information commits perjury.
Lying on an income and expense declaration can also cause you to lose serious credibility in front of a family law judge.
Some think this part of California's divorce process is unenforced.
We have heard other lawyers state, "Everyone lies on their income and expense declaration" when defending their own clients.
We have also been successful in obtaining sanctions against spouses who lied. Truthful, accurate, and complete income and expense declaration are a must.
I prepared the request for order. What happens next?
The California divorce process allows for the request for order package with the forms, declaration, etc. be filed with the court and, once it is court stamped (called "conformed"), you can serve it on your spouse.
Once properly served, you placed the other spouse on notice of the hearing date, time, and what exactly you seek and why.
How far out is the hearing set once a spouse files a request for court orders?
The hearing date depends on the judge's calendar and whether or not the county in California allows you to reserve your hearing date in advance or not.
The California divorce process does vary from county to county on such issues.
- In Orange County, hearings are generally not reserved before the request for order is filed.
- The same is true in Los Angeles and San Diego.
- However, San Diego is unique because it allows a longer evidentiary hearing if either spouse requests it through an emergency application.
The court stamps a hearing date on the paperwork. The hearing can be set in as short as 30 days to 90 days or more.
How busy a judge's calendar is has a significant impact on the hearing date you get.
How do I know what to ask for in the request for order for temporary custody and support?
Your attorney will help you with this by going over with you what is in the children's best interest.
Experienced and skilled divorce lawyers have likely seen a situation like yours before so they can let you know what the family law judge looks for, both factually and legally.
For example, the children's best interests control on child custody and parenting time issues.
Therefore, a court considers the best interest factors that focus on health, safety, education, and general welfare.
On temporary support, the attorney can run the same numbers the judge would run because he or she will have access to the same program.
The California divorce process makes this straightforward for the spouses, lawyers and the court if there are not highly contested issues.
Are there any guidelines that help me pick a parenting plan?
Orange County, Los Angeles County, and San Diego County has parenting guidelines. Other Southern California counties also have guidelines.
Here is a link to each of the three guidelines.
- Orange County Parenting Guidelines
- Los Angeles County Parenting Guidelines
- San Diego County Parenting Guidelines
These guidelines are not inflexible, but they help you understand the different parenting plans available in custody cases.
While these guidelines are more about the local process than California's divorce process, they are still essential to understand before you walk into divorce court.
Do family law judges favor a gender in child custody cases?
California law forbids preference to one gender or another in child custody cases.
Therefore, gender is irrelevant throughout the entire California divorce process.
Can I settle the child custody issues before the hearing?
Not only can you and your spouse informally attempt to settle issues, ideally with the help of your lawyers, but there is a mandatory mediation process that takes place.
The California divorce process requires both you and your spouse to attend and participate in mediation at the courthouse.
In some counties, such as San Diego, Riverside and San Bernardino, these mediators (titled something else depending on the county) make recommendations to the court.
Step 4 to the Divorce Process:
Response to the Custody and Support Request
The spouse who files a request for order is called the moving party. The spouse opposing and responding to the request for order is called the responding party.
California divorce process sets forth procedures for both the moving party and the responding party. Here, we will talk about those procedures for the responding party.
How do I respond to a child custody and support request for temporary orders by my spouse?
Once you are served (or your attorney is served) with the request for temporary orders, you also file a response to the request for order on Judicial Council forms.
You must provide the court with one or more written declarations that respond to that of your spouse.
Like your spouse, you should provide the court with what you believe should be the ordered, consistent with the children's best interest on custody issues.
On temporary support issues, you provide an income and expense declaration and facts that support your position on the temporary support issues. Your divorce lawyer will walk you through this part of the divorce process.
How do I respond to a spousal support request for temporary orders by my spouse?
Spousal support requests for orders are like those that request child support.
That is because under most circumstances, the California divorce
process allows the family law judge to use computer programs to determine
temporary spousal support.
Therefore, the spouse who responds to such a request for order will state his or her position on the proper forms and declarations, and complete, file and serve an income and expense declaration form (form FL - 150).
How do I respond to a request for an order that seeks attorney's fees?
The California divorce process does allow a spouse to seek attorney's fees against the other spouse as part of a request for order.
Most of the time, the spouse who seeks the fees does so under California Family Code 2030 and 2032.
Sometimes, the spouse may seek attorney's fees under other code
sections including but not limited to Family Code 271.
We have a page on our website dedicated to better understanding opposing attorney's fee requests. It is titled, Defending against attorney's fees requests.
Can I file my response to the request for order at any time before the hearing?
California law sets specific deadlines for you to file your responsive declaration to the request for an order by your spouse.
It is an unnecessary risk to ignore these deadlines and file and serve a late response because the court has the discretion to disregard your response if it is filed and served late.
This issue of filing and serving a timely response is one area we have seen other lawyers be lazy and file late responses.
Sometimes they get away with it. Sometimes, they do not.
That is another reason why hiring an experienced family law lawyer who has time for your case is essential to your success.
What if I am not ready to proceed forward with the hearing, and I need a continuance?
Requesting it and getting it are two different things.
It is common for the initial request for order to be continued by an agreement if there is a good reason for it.
If done by agreement, the lawyers for each side speak and then call the court clerk to schedule the new court date. That is subsequently confirmed in writing, and sometimes a notice of continuance is served.
The California divorce process does not mandate whether a court must grant or deny a continuance. So long as there is a good cause, the process gives the court significant discretion.
What if my spouse refuses to agree to the continuance of the request for order?
You can request a continuance in the timely responsive declaration you file with the court.
You will need to show a good reason for the continuance.
Some judges are more liberal than others in granting continuances and allowing that request to come later rather than sooner.
However, it is the better practice to formally put your request in writing and file and serve it by the time your responsive declaration to the request for order is due.
Also, you may want to include information to the court as to what your proposed parenting plan and support analysis is and why just in case the court denies your request for a continuance.
These proactive measures are what good lawyers do and how they make the California divorce process work for them and not against them.
Nuances to Steps 3 and 4:
Interplay Between Custody, Support and Attorney's Fees
Throughout the California divorce process, there are nuances regarding requests for temporary orders.
That includes requests for custody, support, and attorney's fees.
Bringing such requests, opposing them, the strategy employed for each can get complicated and often requires strategic planning. We discuss some of the nuances below.
How is the request for temporary child and spousal support orders different from the custody part of it?
The process is nearly identical. Both include a request for order.
The most significant difference is the requirement of an income and expense declaration with supporting income documents such as pay-stubs, as one example.
I heard the Court bases temporary child and spousal support orders on a computer program. Is that true?
- The Court typically calculates child support based on a computer program that determines guideline support.
- The computer program applies the formula of Family Code 4055 and related codes.
- The Court also typically calculates temporary spousal support (while the divorce is pending) based on the computer program.
- The California divorce process gives the Court reasonable discretion to determine whether the computer program application is appropriate.
It is more difficult for the Court to deviate from the computer program on child support requests because California's guidelines are more strict on child support.
The Court has more discretion on spousal support.
However, that is different from a long term spousal support order.
If that issue goes in front of the judge, the judge cannot rely on the computer program that calculated the temporary order. Instead, the judge has to rely on Family Code 4320.
Here is a screen shot of one of the programs, running hypothetical numbers.
How does the Court figure out income for a self-employed person?
The Court determines self-employment income in much the same way as any other income except when the self-employment income structure is more complicated.
Typically, the Court will expect to look at tax returns to determine what someone makes.
However, since many people do not accurately report income, other information may be necessary to arrive at the correct number.
Income often requires an analysis of the business' accounting documents. It is common for the spouses or the Court to get forensic accountants involved, even on a temporary support number.
California's divorce process does not strictly dictate how the Court determines income. However, forensic accountants are often a big part of the income calculation for self-employed spouses.
What is California's divorce process for emergency hearings regarding child custody and visitation?
You can file an ex parte (emergency) application with the Court, with emergency notice.
That is typically no later than 10 AM the day before the emergency hearing, although different counties have different procedures.
The notice period can vary from Court to Court. Some counties only hear emergency requests on particular days and times. Fortunately, your divorce attorney should be familiar with the local procedural requirements.
What is the basis I can seek an emergency child custody request and order?
California Family Code 3064 states:
(a) The Court shall refrain from making an order granting or modifying a custody order on an ex parte basis unless there has been a showing of immediate harm to the child or immediate risk that the child will be removed from the State of California.
(b) "Immediate harm to the child" includes, but is not limited to, the following:
(1) Having a parent who has committed acts of domestic violence, where the Court determines that the acts of domestic violence are of recent origin or are a part of a demonstrated and continuing pattern of acts of domestic violence.
(2) Sexual abuse of the child, where the Court determines that the acts of sexual abuse are of recent origin or are a part of a demonstrated and continuing pattern of acts of sexual abuse.
We encourage you to read our page on ex parte hearings in California family law cases.
Emergency applications are one of the most abused aspects of the California divorce process.
Too many spouses and lawyers file applications and claim there is an emergency when there is not one. The facts do not justify such a request.
A court may deny an ex parte application even if a parent believes there is an emergency. As an example, read our article on actor Jaime King's divorce with her Kyle Newman.
How does the Court decide whether or not to grant the emergency child custody request?
The Court will typically base its decision on whether or not the paperwork you filed justifies an emergency order. The family law judge rarely takes live testimony on these emergency hearings and instead relies on the paperwork filed with the Court.
The California divorce process does not dictate whether a judge should allow testimony or take the oral argument on an emergency application.
Courts and judges have different procedures.
How do I oppose an emergency request for child custody and visitation?
If your spouse or his or her lawyer provided you ex parte notice for an emergency child custody hearing, they must serve you with the paperwork. Your lawyer will show up to the hearing (often with you present), receive the paperwork, and write out your opposition while you are there.
The opposition is yours, so you need to read it very carefully and make sure everything is factually accurate before you sign it.
We believe it is a mistake not to file an opposition unless there is a tactical or legal reason for not doing so.
I do not have the same access to money or the ability to pay attorney's fees as my spouse does. What can I do?
You can seek attorney's fees against your spouse.
The California divorce process allows either spouse to file a request for an order to seek attorney's fees during the divorce.
A spouse may seek attorney's fees after judgment if there are post-judgment proceedings.
A spouse may also seek fees at a trial. California law even allows for an oral attorney's fee request, although that is less common.
The fee request commonly occurs when one spouse earns significantly more money than the other or has access to accounts to which the other spouse does not have access.
Read our guide on Family Code 2030, which discusses the above in more detail.
Will my spouse be ordered to pay all of my attorney's fees?
The Court has the discretion to determine what is a reasonable amount to order in attorney's fees.
There is no set percentage or a fixed amount.
The Court looks at each parties' relative circumstances and factors that show the need and ability to pay. Access to money is an integral part of the analysis.
Seeking fees is one of the more complex aspects of the California divorce process. We wrote a comprehensive guide on the topic of attorney's fees, which we linked earlier on this page.
Can attorney's fees be ordered to be paid from community assets?
Yes, the Court has the authority to order attorney's fees from community property or assets. The order may attach to financial accounts and even order the sale of assets.
Can the court order attorney's fees to be paid from my spouse's separate property?
Yes, the Court can under certain circumstances also order attorney's fees from a spouse's separate property.
The California divorce process does not set inflexible rules on the source of payment.
How can I seek sanctions against my spouse for not accepting reasonable settlement offers or unreasonably increasing the divorce litigation cost?
We suggest reading our guide on Family Code 271. It is comprehensive and informative on precisely this subject.
It explains divorce law on this subject and walks you through the California divorce process of how to seek and oppose such sanctions requests.
Do I have to show I need attorney's fees to get sanctions under Family Code 271?
Family code 271 is not focused on your need. Instead, it is focused on your spouse's "litigation conduct" that violates its provisions.
How do I put the issue of attorney's fees in front of the Court so the Court can make a ruling?
Attorney's fee motions may be written or oral. The much more common way of doing it is in writing.
The spouse who seeks attorney's fees files a request for an order for it and lays out the fee request's factual and legal basis.
Your attorney will also sign an attorney's fee declaration. That declaration describes the need for attorney's fees, the reasonableness of the fees, the amount of time spent so far, and the estimated future time commitment.
The California divorce process sets forth specific requirements for attorney fee declarations when an attorney seeks fees on a spouse's behalf.
I do make more money than my spouse, but I cannot pay my spouse's attorney's fees after the payment of support. What can I do?
Your lawyer should explain to the Court after payment of your reasonable expenses and deduction of support, you do not have enough net disposable income to pay your spouse's attorney fees.
My spouse is being uncooperative, unreasonable, and causing unnecessary litigation. Will I be ordered to pay my spouse's attorney's fees?
A Court may monetarily sanction a spouse who takes unreasonable positions and unnecessarily increases litigation costs. A spouse may use such conduct as a defense to an attorney's fee claim by the unreasonable spouse.
Family Code 271 (quoted above) is the primary California sanctions statute.
Step 5 of the California Divorce Process:
Request for Order Hearing
After the moving party files and serves the request for order and the responding party files and serves his or her response, they each prepare for the hearing.
Most of the urban legends about the hearings are untrue.
The California divorce process requires spouses and the divorce case to receive due process. Due process is the right to a hearing and to present evidence.
The unfortunate part is how some family law judges shortcut the process and arguably limit due process rights.
We discuss this in more detail below.
Do I have to attend the hearing?
The short answer is you should attend the hearing. It is unwise to skip it, and your lawyer can tell you whether your presence is mandatory.
Under many circumstances, you and your attorney must attend the hearing on the request for order that you filed, or the judge may deny each of your applications.
There are limited exceptions to a mandatory appearance, and the divorce process accommodates ways to appear by phone if needed.
Will my spouse and I testify at the hearing?
Whether you or your spouse testify is less a California divorce process issue and more a local county question.
The process of putting on a hearing does vary between counties. However, you should have the right to testify, and your lawyer should be able to put on a full evidentiary hearing.
How long will the request for order hearing typically take?
The answer to that question partially depends on the complexity of the hearing.
- The judge asks the lawyers to give a time
estimate on the length of the hearing.
- Short cause hearings typically take three
hours or less, although this can vary depending on the county and the
- Long-cause hearings are those that are more
than three hours. Some courts consider long-cause hearings as those longer than
five hours, and that also can vary.
- A simple child custody hearing without much
testimony can be as short as 15 to 30 minutes.
- If one or more witnesses have to testify, the
hearing will take longer.
- The more complex the custody hearing is, the
longer it can go.
Suppose the support issues are complex and involve a self-employed spouse, disputes regarding income, and a forensic accountant's testimony. The hearing can go many hours and sometimes even more than a single court date.
The divorce process in California does not place limitations on the Court's discretion here.
How much time the Court gives the spouses to put on a hearing is in the Court's broad discretion, so long as the Court does not abuse that discretion and deny one or both spouses due process.
How will the judge decide the temporary order requests?
The divorce process gives the judge two standard options to decide and announce his or her ruling.
The first way is immediately after the hearing concludes. The Court will orally state its ruling and then typically order one attorney to prepare the findings and order after hearing.
The other way is for the Court to take everything "under submission" and mail the ruling to each spouse's lawyer through a document called a "minute order" or order after hearing.
If the family law judge does not allow a full hearing, how does the judge make the decision?
First, we should be clear what we mean by a full hearing.
- A full hearing is an evidentiary hearing that
allows each spouse to put on their evidence before the judge makes the
- A full evidentiary hearing typically involves
each spouse's testimony, witness testimony, exhibits, and argument.
Family law courts have too many cases and not enough judges. The backlog is real in both large and small California counties.
Therefore, many family law judges create a shortcut that limits each spouse's hearing time.
The most common shortcut method is called "an offer of proof" style of hearing.
Such a hearing allows the lawyers to present an argument to the Court and assumes the family law judge read the paperwork.
That last assumption is a safe one with the more diligent and disciplined family law judges and an unsafe one with others.
The California divorce process should not be different from one county to another.
However, the reality is there will be differences between California counties. Some counties even have internal differences from one judge to another.
Step 6 to the California Divorce Process:
Declarations of Disclosure
Serving preliminary and final declaration of disclosure and filing the proof of that service is one of the essential parts of the California divorce process.
What is a declaration of disclosure?
A declaration of disclosure is a set of mandatory forms and other documents that disclose to the other spouse all of the community and separate property assets, debts, income, and expenses.
There are specific forms used for such disclosures, but the disclosures are not limited to forms.
Your lawyer will explain the forms to you.
They explain the divorce process in California with such disclosures and their importance.
When do I have to give a declaration of disclosure to my spouse and my spouse to me?
The law requires the preliminary declaration of disclosure be served on your spouse within 60 days of the petition (if you are the petitioner) or within 60 days of the response (if you are the respondent), according to Family Code 2104.
Each spouse must serve the final declaration of disclosure no later than 45 days before the first assigned trial date, under Family Code 2105, or submit a waiver.
It is common for there to be an extension request on the preliminary declaration of disclosure. It is less common for the final one.
The California divorce process sets forth these timelines to ensure spouses are not left to guess what all the assets and debts and income and expenses are before they enter into settlement agreements or proceed to Court.
How do my spouse and I exchange the declaration of disclosure?
Once you complete all of the forms and related documents that become part of the entire disclosure package declaration, your lawyer will serve the package on your spouse's lawyer.
Your lawyer will then file a proof of that service, so the Court knows the exchange took place.
Your spouse follows the same procedure.
One of the foolish things we have seen self-represented spouses do is file the disclosures' proof of service without first exchanging the disclosures.
We saw numerous situations like this where one or both spouses committed perjury by telling the Court they exchanged disclosures when they did not do so.
Why does the California divorce process require that we exchange disclosures?
Spouses are fiduciaries to each other. That means there is a high duty of loyalty.
Family law disclosures are like an open faucet.
Everything has to come out regarding assets, debts, income, and expenses to ensure that each spouse disclosed everything the law requires they disclose before a settlement.
What happens if I refuse to provide my spouse with the mandatory declaration of disclosure?
A lot of terrible things can occur.
The California divorce process allows your spouse to demand the disclosure, get a court order for one, and even get significant monetary sanctions (including attorney's fees) against you.
In certain circumstances, the Court may issue evidentiary, issue, or even terminating sanctions against the spouse who refused to exchange the mandatory disclosure.
These are not all of the consequences but some of the more serious ones.
California's divorce process can be unforgiving and even punitive in this regard.
The same applies if your spouse refuses to provide you with a declaration of disclosure.
I looked at my spouse's declaration of disclosure, and it is missing important information. What should I do?
Your lawyer should work with you to identify the areas of your spouse's declaration of disclosure that are incomplete and go through a meet and confer process with your spouse's lawyer to request the additional information.
The lawyers meet and confer.
If your spouse refuses to provide the additional information, additional options are available to you, including seeking court orders on the missing data.
Since California law mandates the exchange of complete and accurate disclosures, our California divorce process sets forth specific methods to compel disclosures and to punish nondisclosure or incomplete disclosure.
Does the California divorce process address finding out after the judgment about a missing asset not covered in the judgment?
There are several code sections on this issue. One of them is California Family Code 2556. This section states:
In a proceeding for dissolution of marriage, for nullity of marriage, or for legal separation of the parties, the court has continuing jurisdiction to award community estate assets or community estate liabilities to the parties that have not been previously adjudicated by a judgment in the proceeding.
A party may file a post-judgment motion or order to show cause in the proceeding to obtain an adjudication of any community estate asset or liability omitted or not adjudicated by the judgment.
In these cases, the Court may equally divide the omitted or unadjudicated community estate asset or liability unless the Court finds upon good cause shown that justice requires an unequal division of the asset or liability.
What was left out and why also makes a difference in how your lawyer may approach the situation.
The law is not limited to Family Code 2556. Both California law and the California divorce process are complex, and you need an attorney's advice about your specific situation.
Can the requirement for exchanging a declaration of disclosure with my spouse be waived by both of us?
Spouses cannot waive a preliminary declaration of disclosure except in unique circumstances.
Spouses may waive a final declaration of disclosure if that waiver is in writing and the proper form.
You should speak with your lawyer before agreeing with your spouse to waive the final declaration of disclosure. Under some circumstances, it is a bad idea.
Step 7 to the California Divorce Process:
The Discovery Process
Discovery is an essential part of the California divorce process when spouses need answers to questions or documents from the other spouse.
While the preliminary declaration of disclosures provides the basics, rarely are they enough in those divorces where the divorce involves dividing assets and allocating debts, or when the divorce involves complex income issues.
What is discovery?
Discovery is the formal request for information from your spouse.
What are the different types of discovery?
Discovery comes in many forms. The most common ones are:
- Form and special interrogatories,
- Request for production of documents,
- Request for admissions, and
- Oral depositions.
There are also subpoenas for information from non-parties.
The California divorce process sets form deadlines for service of discovery and responses to discovery.
What is the difference between the different types of discovery?
- Interrogatories are written questions asked by
you of your spouse and which your spouse has to answer.
- A request for production of documents is what
you probably think it is. It is a formal request for your spouse to
- Request for admissions is a written request
that asks your spouse to admit or deny specific facts to be true or certain
documents to be genuine.
- A deposition is a question and answer session
typically in person and attended by your spouse, who is questioned by your
Your spouse's attorney is also present for a deposition. You may also take a witness' deposition. A court reporter transcribes the questions, answers, and any objections. Depositions typically take place in an attorney's conference room.
We wrote an informative guide on depositions in a divorce.
A subpoena is a set of forms served on the other spouse and a non-party to appear to testify, produce documents, or both.
All discovery responses and deposition testimony are under oath (penalty of perjury).
There is a specific process in California regarding service of the discovery and service of the responses to discovery.
What happens if my spouse refuses to respond to the discovery?
Suppose your spouse refuses to respond or provides incomplete responses. Your lawyer may send a meet and confer letter or call your spouse's lawyer to discuss the incomplete or lack of answers.
If the spouses, through the lawyers, cannot resolve the issues, your attorney can file a motion to compel your spouse to provide responses or further responses.
Your lawyer may also seek attorney fees against your spouse for the incomplete or lack of responses.
Step 8 of the California Divorce Process:
Use of Expert Witnesses
Divorce attorneys regularly use expert witnesses when they need expert opinions. That sounds simple, right?
If the opinion is about the fair market value of a home or personal property, it can be simple.
But when dealing with income available for support purposes or the value of a business, the expert witness retention and evaluation process is more complicated.
We will go through some frequently asked questions about this step eight of the California divorce process.
Are experts used in divorce cases?
Yes, some divorce cases require the use of one or more experts. Experts come in three types.
- The first is the privately retained expert who serves as the expert witness for the spouse who hired him or her.
- The second is the Court's expert appointed by the Court and answers to the Court, and this is sometimes an expert both spouses agree the Court should appoint. This option involves a specific process that includes obtaining the court order.
- The third is a mutually agreed upon private expert who gives both spouses his or her opinion on the subject but is not Court-appointed.
California's divorce process has different procedures set up for each of the above three scenarios
What are the types of experts used in divorce cases?
There are several different types of experts. The following are not all of them but the most common:
- Private child custody evaluator.
- Forensic accountant.
- Vocational evaluator / examiner.
- Real estate appraiser.
A family law judge often appoints an expert under Evidence Code 730. Check out our article called what is a 730 evaluation to learn more.
What is a child custody evaluator?
A child custody evaluator is a court-appointed expert that provides a recommendation to the Court on child custody and visitation issues.
Child custody evaluators are typically forensic psychologists. The expert interviews the spouses, witnesses, review documents, conduct testing, and sometimes talk to the children (depending on the age and issues in that case), etc.
How is a child custody evaluator used in a divorce case?
When a judge believes a child custody case needs a more in-depth look inside the disputes and allegations, the Court has the discretion to appoint a child custody evaluator.
The spouses can also agree that such an evaluator is necessary and therefore stipulate to one. The Court then turns the spouses' stipulation into a court order.
The California divorce process mandates the use of forms when appointing a custody evaluator. That form is FL-327.
How much does a child custody evaluation cost?
The cost depends on the complexity of the child custody case.
It also depends on how much work the evaluator must do before completing his or her report and recommendations.
We have seen child custody evaluations that cost as little as a few thousand dollars and as much as $50,000 or more.
What is a forensic accountant?
A forensic accountant is either a privately retained expert for a spouse, or a court-appointed expert who evaluates the accounting issues for which the Court appointed the expert.
How is a forensic accountant used in a divorce case?
The Court may appoint a forensic accountant for a variety of reasons, including to determine income available for support purposes, valuation of a business, the tracing of separate or community property proceeds, and other reasons.
How much does a forensic accountant cost?
The cost of a forensic accountant varies depending on the complexity of the case. It can range from several thousand to tens of thousands of dollars. In very complex cases, that number may be significantly higher.
What is a vocational examiner?
A vocational examiner is a court-appointed expert whose job it is to assess a spouse's ability, opportunity, and capacity for gainful employment.
How is a vocational examiner used in a divorce case?
When one spouse believes the other spouse should be employed or is underemployed, that spouse can seek the appointment of a vocational examiner under Family Code 4331.
If appointed by a Court's order, the vocational examiner will then conduct a vocational examination of the spouse. A Court orders a vocational examination by an agreement that becomes a Court's order or after a contested hearing.
How much does a vocational examiner cost?
The typical cost of a vocational examination ranges between $2500-$7500. We have seen situations where it has exceeded that amount.
What is a real estate appraiser?
A real estate appraiser is what you think it is. It is an expert to appraise the value of the real estate. That real estate can be residential or commercial. It can also be land.
How is a real estate appraiser used in a divorce case?
Typically, spouses will not want to sell real property but instead will want to agree on a buyout or offset of some kind. In such a situation, there may be a disagreement regarding the value of that real estate. Spouses use an experienced, certified appraiser for that purpose.
How much does a real estate appraiser cost?
A typical real estate appraisal in a divorce case costs between a few hundred dollars and potentially up to $1000 per property, or more. In situations where more than one appraisal is needed, such as a historical appraisal, that cost may be higher.
Step 9 of the California Divorce Process:
All things must, at some point, come to an end, and divorce is no exception.
The California divorce process gives spouses two options to finalize their divorce - settle it or take it to trial.
We will now go through some frequently asked questions about the settlement negotiation portion of the divorce process.
Will my spouse and I be allowed to settle the divorce case and avoid Court?
A good lawyer will always work with you to try and resolve as many issues as possible with your spouse.
Family law does not have to be all or nothing. You and your spouse can resolve every issue or some of the issues.
The California divorce process does not get in the way of settlements. It encourages it and gives the spouses many opportunities to resolve their disputes.
How do I start the negotiations between my spouse and me through our lawyers?
Typically, after you and your spouse have exchanged your preliminary declaration of disclosure, settlement negotiations on the financial issues start.
Child custody and visitation issues can start at any time, including before the disclosures since custody has little direct correlation for settlement purposes with financial matters. In most cases, the lawyers draft settlement offers.
Then, the spouses negotiate until they can reach an agreement.
The divorce process in California does not set rules on how spouses must negotiate. However, it is wise to engage in settlement discussions when you have the facts you need to make smart choices.
How will I know what to offer to my spouse or respond to an offer by my spouse?
On child custody issues, the focus is on the child's best interest.
On child support, it is a computer formula.
On spousal support, temporary is different than the support ordered at the end of your divorce, and your lawyer will assist you with the evaluation of the marital standard of living and the Family Code 4320 factors.
On property issues, communication with your lawyer is essential. You must know what community property is, what is separate property, and what property may be both.
You and your lawyer should be able to sit down together and figure out what is a reasonable settlement offer consistent with the facts and law.
This objective perspective is a critical part of the California divorce process.
Settlement offers or counteroffers without thoughtful collaboration between the attorney and client is a recipe for decisions you may regret.
Is there an advantage to settling issues versus letting the Court decide?
If the settlement is a reasonable one and is consistent with the facts and the law, it generally makes sense to settle the issues.
However, settlement for the sake of settlement that significantly compromises what you are entitled to or that is inconsistent with the children's best interest is probably not a good idea.
Settlement also involves a cost versus benefit analysis. For example, if a dispute is about $25,000, does it make sense to spend $25,000 in attorney's fees on the dispute?
How long does the California divorce process go from beginning to end if my spouse and I agree on everything?
From petition to judgment, if both spouses diligently complete their disclosures, produce all the information required by law and settle their disagreements without extended negotiations, the entire divorce process can take only a few months or even less.
Keep in mind, however, that there is still a six-month waiting period to become an unmarried man or woman. Ending the status of the marriage does not have to slow down the resolution of any other issue.
What is a voluntary settlement conference?
A voluntary settlement conference is a meeting with the lawyers and the spouses all present to sit down and try to resolve the case.
These meetings typically take place at one of the lawyer's offices.
It is an integral part of the divorce process because it allows everyone to attempt a meeting of the minds.
When should a voluntary settlement conference take place?
That depends on the case, and every situation is going to be a little bit or a lot different.
Some cases can use a voluntary settlement conference early on because the issues are straightforward or don't need much litigation. Other cases are more complex and have a lot of factual disputes.
That may require more work to gather information and documents before a fruitful settlement conference.
In most divorce cases that are not complex, a voluntary settlement conference can and should take place after each spouse has exchanged their preliminary declaration of disclosure, assuming the disclosures are complete.
The California divorce process does not dictate when such a meeting must take place.
How does private mediation work during the California divorce process?
Private mediation involves spouses and lawyers who meet with a retired judge or very experienced family law attorney to attempt settlement. The mediator will then assist the spouses and lawyers in trying to reach an agreement on the divorce issues. Spouses are free to agree to any private mediator they want. There is no specific divorce process that controls its timing or who the spouses must pick.
Who picks the mediator?
The lawyers usually choose the mediator, with input from the spouses. Retired family law judges are generally the right choice for the role of the mediator.
How long does mediation typically last?
Mediation can last anywhere from a few hours to several days, depending on the complexity of the divorce case.
Who pays the mediator?
If one spouse is the income-producing spouse and has more access to funds, that spouse typically pays for the mediator.
If there are community sources available to pay for the mediation, such as bank and brokerage accounts, the money can come out of there. Other times, the spouses equally divide the fees.
There is no hard and fast rule on how this must happen during the California divorce process.
The lawyers and the mediator should discuss fees before the mediation begins.
How will I know the mediator is not biased?
You should speak with your lawyer, and your lawyer should receive from the mediator confirmation in writing that the mediator does not have a conflict of interest.
What happens if we can resolve some or all the issues in mediation?
Like a voluntary settlement conference, one of the lawyers will typically volunteer to prepare the stipulated judgment or marital settlement agreement.
Can I attend mediation without my lawyer?
We do not like that idea, but you should speak to your lawyer about it. We believe it is always a better idea to have the lawyers present during mediation, and you should not sign a settlement agreement without each lawyer's written approval.
That is why you have an attorney - for your attorney to advise you on such things before you agree.
What is a mandatory settlement conference?
Unlike a voluntary settlement conference, a mandatory one is a conference that is ordered by the Court.
Typically, these take place at the courthouse, and there is a settlement officer of some type that is appointed to discuss settlement of the divorce case with each spouse's lawyer.
Other times, the mandatory settlement conference is simply an opportunity to get everyone together and discuss settlement even though there is no settlement officer or judge that assists.
We have also seen situations where the spouses reach a tentative settlement but wish to discuss specific issues with the judge before finalizing it.
Sometimes the judge is willing to give his or her input on the settlement to help the parties finalize a potential agreement.
Local rules for each County may control the settlement conference procedure.
If my spouse and I can reach an agreement, is it drafted and signed right then and there?
Different lawyers have different styles.
There is no clear one way or another to do this.
Sometimes the settlement agreement is handwritten and signed by everyone there, and one lawyer prepares that typewritten version.
Other times, more tech-savvy lawyers will bring a laptop with them and type the terms for everyone's signature.
Once the divorce between my spouse and I settle, how is that settlement documented?
Stipulated judgments memorialize the settlement terms. A stipulated judgment is a court judgment that is drafted by each spouse's lawyer.
The spouses, lawyers, and the judge sign the judgment.
What is a marital settlement agreement?
Marital settlement agreements are like a stipulated judgment, except they are a contract.
They may require an additional step of creating the contract, which is called the marital settlement agreement and then incorporating it into a judgment.
Our law firm does not like the marital settlement agreement process and prefers to use a stipulated judgment.
How long is a stipulated judgment?
That depends on the complexity of the issues. A stipulated judgment can be as short as 3 to 5 pages, 50 pages, or more depending on its terms and conditions.
The typical stipulated judgment that we have drafted and seen is between 20 to 40 pages.
Does it matter which attorney drafts the stipulated judgment?
So long as both spouses have a reasonable voice and each of the lawyers take care to review and discuss the terms of the stipulated judgment, it should not matter who prepares the first draft of it.
Stipulated judgments sometimes have a term that states neither party nor attorney will be considered the drafter of the stipulated judgment. Your lawyer can explain to you why such a provision exists and may be necessary.
How long does it take for the Court to sign the stipulated judgment after it is submitted?
That depends on how busy the Court is at that time. Some counties can take weeks, and others can take months. The California divorce process does not regulate such issues, and much depends on how impacted and backlogged the Court is at that time.
Step 10 of the California Divorce Process:
The Divorce Trial
You have reached the end of the California divorce process - the trial date.
At the trial, the family law judge will make the decisions that will become a court order, because the spouses and their lawyers were unable to reach an agreement.
Shall we go through some of the frequently asked questions about trials?
When is a divorce case set for a trial?
A trial is generally set in a divorce case when one or both spouses, through the lawyer, request a trial date.
A trial can also be set by the family law judge even if the lawyers did not ask for one.
The California divorce process gives the court the power to set a trial when the court believes it is appropriate. The process for setting a divorce trial varies from county to county.
How far out is the trial date set once it is requested?
This process varies from county to county in California.
The primary factors are the length of time the trial is estimated to take, the court's availability, and each lawyer and spouse.
How will my lawyer know how long a trial will take?
Experienced family law attorneys who have conducted enough trials have a good idea of how long a divorce trial should take, depending of course on the case's specific facts and issues.
Your lawyer and your spouse's lawyer will likely discuss the time estimates of the trial.
As part of the divorce process, the family law judge will want a "time estimate," so they know how many days the trial may proceed.
Will I have to appear and testify at trial?
You will likely have to appear and testify at trial, and you should speak with your attorney before the hearing about the nature and extent of your testimony.
Your attorney should go over the facts and issues with you, so you are prepared.
We encourage you to read our guide on California divorce trials to learn more.
Could the trial get continued?
Trial continuance is an interesting part of the California divorce process.
The judicial attitude can vary significantly from one county to another and even from one judge to another in the same county.
Some judges abhor continuances. Others hand them out whenever requested.
There are several different reasons a Court may continue a trial.
- One of them is a request for a continuance by one of the attorneys. If the judge believes the attorney has a good reason for the continuation, the judge can grant the continuance.
- Another reason may be the judge's unavailability because he or she double booked your case with other cases on that day.
- There may be matters that take priority over your case (such as domestic violence matters) and need to go first.
- The priority issue depends on what your trial is about versus the other trial that may or may not take priority over yours.
Another common reason for a continuance is the inability to finish the trial on the trial date.
If that happens, many judges will continue the trial date to a different day to finish it. The new day or days depends on how the judge manages his or her busy calendar.
How will the court inform us of the decision once the trial concludes?
Judges will typically mail their decisions to both lawyers after the trial concludes.
The alternative is to order the spouses and lawyers back into court to hear the decision and then order one of the lawyers to prepare the written judgment.
How a judge announces his or her decision will vary from county to county in California.
Nuances to Step 10 of the California Divorce Process
What does it mean to bifurcate marital status?
Sometimes a spouse may want to end the marriage before the divorce case is final.
The spouses either agree to the bifurcation of marital status or the spouse who wants it files a formal request.
The California divorce process makes the bifurcation process complex, and an attorney's advice becomes critical to avoid mistakes.
What does it mean to bifurcate specific divorce-related issues?
Sometimes, a court must separately decide the issues in a divorce.
A typical example is the date of separation. Since the date of separation can impact both support and property issues, lawyers and judges will sometimes want to get that issue decided first.
Bifurcation saves time and money if the final decision on that issue significantly impacts the remaining issues.
Different Fee Types and Different Payment Options
We added some bonus frequently asked questions to our California divorce process guide.
What is the difference between an hourly rate and a flat fee in a divorce?
An hourly rate is a rate charged by an attorney per hour. A different rate may apply to an attorney's time and non-attorney time. In law firms similar to ours, the hourly rate can vary between attorneys.
A flat fee is a one time fee paid for a service.
Do lawyers typically handle divorce cases on a flat fee or at an hourly rate?
Most divorce attorneys handle a divorce at an hourly rate or varying rates. Some lawyers may handle the divorce on a flat fee, especially in uncontested cases.
What are a retainer deposit and retainer agreement?
The retainer agreement is the contract signed between the lawyer and the client that explains the terms of the lawyer's representation of the client. A retainer deposit is typically the initial retainer deposit paid by the client to the lawyer.
How much does a divorce typically cost?
Unfortunately, there is no "typical." The cost of a divorce varies depending on several factors. The most common is the complexity of the issues and the level of contention or disputes between the spouses. That last point may be the most important. Even complex divorce cases do not have to be expensive for the spouses if the spouses cooperate.
How Long Does the California Divorce Process Take?
Here are the bonus frequently asked questions about the California divorce process. We will discuss how long a divorce takes and why.
I have heard divorce cases go on for years. Is that true?
The divorce process in California isn't always short, but it doesn't have to feel endless.
It is a little unusual for a divorce case to go on for years.
Typically, that happens if one or both spouses have caused significant delays. Delays occur for a variety of reasons.
Does the California divorce process change if my spouse decides to be self-represented?
No. Law and procedure does not change because somebody is self- represented. That is one reason representing yourself is such a bad idea.
However, it is not uncommon for a family law judge to give a little more leeway to a self-represented spouse.
The latitude will happen on occasion if the family law judge believes the self-represented person is acting in good faith.
For example, a continuance request is more likely if the person is self-represented and needs more time to prepare for a hearing.
Our experience has been that self-represented spouses do not get special treatment through the California divorce process if they try to delay the case or take unreasonable positions.
My spouse keeps changing lawyers and asks for delays. Can I stop this?
Several options are available when something like this happens, and our family law firm has specific experience with this issue.
Spouses who keep firing lawyers to delay cases should have a sanctions motion filed against them.
Also, any continuance requests they make should be opposed when that continuance request is unreasonable.
You have more control than you think. When a spouse engages in this type of conduct, your family law attorney should speak with you about your options in this regard.
What is the 6 Month Waiting Period?
California Family Code 2339 states:
(a) Subject to subdivision (b) and to Sections 2340 to 2344, inclusive, no judgment of dissolution is final for the purpose of terminating the marriage relationship of the parties until six months have expired from the date of service of a copy of summons and petition or the date of appearance of the respondent, whichever occurs first.
(b) The court may extend the six-month period described in subdivision (a) for good cause shown.
Your divorce case (and resolving it) may be shorter or longer than six months.
This section only deals with ending the marriage status and restoring each person to the status of an unmarried person.
Use the knowledge you gained about the divorce process to make smart choices
We hope you enjoyed our comprehensive guide on the California divorce process.
Ready to learn more? Click on the links below to additional divorce guides and articles.
Now is also the time to actually get some legal advice about your specific situation. Advice comes from an informative and affordable strategy session with our experienced family law attorneys. Contact us today for an affordable strategy session. We are here to help.