CALIFORNIA DIVORCE PROCESS

Learn California's divorce process from start to finish

California Divorce Process Guide

California Divorce Process 10 Step Guide From The Initial Petition Through Trial

The California divorce process is a system of steps and procedures that carry the case from the initial filing petition through trial. Questions about the California 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 roadmap.

We decided to write this guide as a comprehensive set of frequently asked questions about the California divorce process and answers to those questions.

Also, this part is very important – 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.

Click on the magnifying glass icon before each title if you want to automatically scroll down to that portion of the FAQ.

Step One: The 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. 

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 divorce process - serve the divorce petition on your spouse.

Is there a filing fee to file the petition and a summons?

Yes. 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 or not me 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 is the divorce summons and petition served on the respondent?

The divorce summons and petition is 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 of the summons and divorce petition if the respondent cannot be found or is evading service?

Yes, the divorce process does allow for alternatives. You must first 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 a 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 of time (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 Two: Responding to the Divorce Petition

How does the respondent respond to the divorce petition?

The form for the response 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.

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 One and Two of the Divorce Process: Amending the Petition or Response

What happens if I do not complete the divorce petition or response correctly?

This is exactly 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, these types of mistakes can be corrected through the filing of an amended petition or response. The procedure for that can get complex depending on the timing of it. 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 completed 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 knowlegable 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 want. 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 want even if the respondent has failed to participate and whose default has been taken.

My default has been taken, what do 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 your ability for a set aside.

Step Three: Requesting Temporary Custody or Support

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 and serves the divorce petition. For the respondent, he or she may file the request for order with the response or after he or she files and services the response.

The California divorce process does not dictate a strict timeline on these issues and 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 spouse seeks such temporary orders by filing a “request for order” with the court. 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 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 really have to disclose my income and expenses on the income and expense declaration?

Yes, it is mandatory. That document is signed under penalty of perjury and willfully providing false or incomplete information can have serious, adverse consequences. 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 the California divorce process is one not enforced. We have actually 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 opposing spouses who have lied. Truthful, accurate and complete income and expense declaration are a must. 

Let’s assume, with my attorney’s help, I filled out all the forms correctly and I completed the declaration. 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 the request for order is filed?

This really 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. 

The date is stamped on the request for order once it is filed. The hearing can be set in as short as 30 days and as long as 90 days or more. How busy a particular 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, child custody and visitation orders are based on the children’s best interest. Therefore, the best interest factors are analyzed. 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 exist which will help in deciding what specific parenting plan I should request?

In Orange County, we have specific parenting guidelines that family law attorneys and of course judges are familiar with and can rely on. They are called the Orange County Parenting Guidelines. The other counties have a less voluminous and specific version of these guidelines.

These guidelines are not set in stone but they are helpful in understanding the different parenting plans available in custody cases. While these guidelines are more about the local process than California's process, they are still important to undertand before you walk into divorce court.

Do family law judges favor a particular gender in child custody cases?

California law specifically forbids preference to one gender or another in child custody cases. 

Are my spouse and I given an opportunity to settle the child custody issues before the request for order 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 Riverside, these mediators actually make recommendations to the Court. Most Southern California counties do not have this "reporting" provision and the mediation, including everything stated to the mediator, is strictly confidential. 

Step Four: Responding to the Temporary Custody and Support Request

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.

Similar to 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.

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 order by your spouse. It is dangerous 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 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 important.

What if I am not ready to proceed forward with the hearing and I need a continuance of the child custody and support request for order? Can I request it from my spouse or his or her attorney?

Requesting it and getting it are two different things. It is common for the initial request for order to be continued by 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 then 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 good cause, the process gives the court significant discretion.

What if my spouse refuses to agree to the continuance of the request for order? Can I still request it from the court?

You can request a continuance in the timely responsive declaration you file with the court.

You will need to show the 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.

It addition, 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. This is 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 of the Divorce Process: The Interplay Between Temporary Support Versus Custody

How is the request for temporary child and spousal support orders different from the custody part of it?

I have heard that temporary child and spousal support orders are based on a computer program. Is that really true?

How does the court figure out income for a self-employed person?

What is California's divorce process for emergency hearings regarding child custody and visitation?

What is the basis I can seek an emergency child custody request and order?

How does the court decide whether or not to grant the emergency child custody request?

How do I oppose an emergency request for child custody and visitation?

I do not have the same access to money or ability to pay attorney’s fees like my spouse does. What can I do?

Will my spouse be ordered to pay all of my attorney’s fees?

Can attorney’s fees be ordered to be paid from community assets?

Can the court order attorney’s fees to be paid from my spouse’s separate property?

How can I seek sanctions against my spouse for not accepting reasonable settlement offers or unreasonably increasing the cost of the divorce litigation?

Do I have to show that I have a need for attorneys fees to get sanctions pursuant to family code 271?

How do I put the issue of attorney’s fees in front of the court so the court can make a ruling?

I do make more money than my spouse but after payment of support, there is no way I can also for to pay my spouse’s attorney fees. What can I do?

My spouse is being uncooperative, unreasonable and causing unnecessary litigation. Will I really be ordered to pay my spouse’ attorney fees even in such a circumstance?

How is the request for temporary child and spousal support orders different from the custody part of it?

The California divorce process is nearly identical in the sense that the same type of paperwork is filed to get a hearing date and response to the filing. The biggest difference is the requirement of an income and expense declaration to be filed with supporting income documents such as pay-stubs, as one example.

I have heard that temporary child and spousal support orders are based on a computer program. Is that really true?

The court typically calculates child-support based on a computer program that determines guideline support. The computer program essentially 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.

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 to figure out the final one. Instead, the judge has to rely on Family Code 4320.

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 structure of the self-employment income is more complex.

Typically, the court will expect to look at tax return 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. This 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.

While California's divorce process does not strictly dictate how the Court determines income, the use of forensic accounts is often a big part of 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 and some counties only hear emergency requests on particular days and times. This is another example of how the California divorce process is not always the same from one courthouse to another in this State. Fortunately, your divorce attorney should be very familiar with the 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.

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 that you filed provides sufficient grounds to make an emergency order. The family law judge rarely take live testimony on these emergency hearings and instead relies on the paperwork filed with the court.

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, he or she must serve you with the paperwork. Your lawyer will show up to the hearing (often with you present), receive the paperwork and then 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. While the California divorce process does not require you to file and serve a response to the emergency application, we believe it is a mistake to not file one unless there is tactical reason for not doing so.

I do not have the same access to money or ability to pay attorney’s fees like my spouse does. What can I do?

California family law states when one spouse has the ability to pay for attorney’s fees and the other spouse has a need based on their relative circumstances, the spouse with the need can seek a contribution of attorney’s fees from the higher earning spouse or the spouse that has a greater access to money.

The California divorce process allows either spouse to file a request for order to seek such fees during the divorce or even post judgment if there are post judgment proceedings. A spouse may also seek fees at a trial. There are even laws that allow for an oral attorney fee request although that is less common.

This commonly occurs when one spouse earns significantly more money than the other or has access to accounts that the other spouse does not have access to.

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 attorneys fees. There is no set percentage or set amount. The court looks at each parties' relative circumstances and factors that show need and ability to pay. Access to money is an important part of the analysis.

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. This includes community bank accounts, brokerage accounts and the family law judge even has the power to order the sale of property if necessary to pay for attorney’s fees.

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 to be paid 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 cost of the divorce litigation?

We suggest reading our guide on Family Code 271. It is comprehensive and informative on exactly this subject.

Do I have to show that I have a need for attorneys fees to get sanctions pursuant to family code 271?

No. 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 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 order for it and lays out the factual and legal basis for the fee request. Your attorney will also complete and sign an attorney fee declaration that lays out the necessity for attorney’s fees, the reasonableness of the attorney’s fees, the amount of time spent so far and the estimated amount of time to be spent.

The California divorce process set forth certain requirements for attorney fee declarations when an attorney seeks fees on a spouse's behalf.

I do make more money than my spouse but after payment of support, there is no way I can also for to pay my spouse’s attorney fees. What can I do?

Your lawyer should be able to explain to the court that after payment of your own reasonable expenses and deduction of support your pay to your spouse, you do not have enough net disposable income to also pay your spouse’s attorney fees.

My spouse is being uncooperative, unreasonable and causing unnecessary litigation. Will I really be ordered to pay my spouse’ attorney fees even in such a circumstance?

A spouse who takes unreasonable positions and who unnecessarily increases the cost of litigation may be monetarily sanctioned and such conduct is sometimes a defense to an attorney fee claim by that spouse. Family Code 271 (quoted above) is the main California sanctions statute. 

Step Five of the California Divorce Process

Do I have to attend the hearing on my request for order or will the judge just base the decision on the paperwork I filed?

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 (remember, we are assuming you are not trying to represent yourself and you have hired a family law attorney) must attend the hearing on the request for order that you filed or the judge may deny each of your requests. There are some limited exceptions to this and the divorce process does also allow ways to appear by phone, if needed.

Will my spouse and I actually testify at the hearing?

This 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. Lawyers are asked to give a time estimate on the length of the hearing. The judge requests this information at “calendar call” (when all of the cases are called in the morning) so that he or she can slot the case with the other hearings on other matters.

Short cause hearings are those that typically takes three hours or less although this can vary depending on the county and the court. Long cause hearings are those that are more than three hours. We have seen some courts consider long cause hearings as those longer than five hours and that also can vary.

A simple child custody hearing without very much testimony can be as short as 15 to 30 minutes. If one or more witnesses have to testify, the hearing will obviously take longer. The more complex the custody hearing is, the longer it can go. If the support issues are very complex and involve a self employed spouse, disputes regarding income and the testimony of forensic accountants, the hearing can go many hours and sometimes even greater 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 isi greatly 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 make the decision on the temporary order request?

The divorce process gives the family law two common ways to make the decision and announce his or her ruling.

The first way is immediately after the hearing concludes whereby 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 documents called a “minute order” or order after hearing. 

Step Six: Declarations of Disclosure

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.

Please read our pages on the preliminary declaration of disclosure and final declaration of disclosure. 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’re the petitioner) or within 60 days of the response (if you’re the respondent) pursuant to Family Code 2104.

Each spouse must serve the final declaration of disclosure no later than 45 days before the first assigned trial date, pursuant to Family Code 2105 or submit a waiver of it.

It is common for there to be an extension request on the preliminary declaration of disclosure. It is less common for the final one. 

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 declaration of disclosure package, your lawyer will serve the package on your spouse’s lawyer. He or she will then file a proof of that service so the court knows the exchange took place. Your spouse follows the same procedure. This disclosure process is mostly form driven. 

Why does the California divorce process require that we exchange disclosures of all assets, debts, income and expenses?

Spouses are fiduciaries to each other. That means there is a very high duty of loyalty. It is sometimes said that family law disclosures are like an open spigot. Everything has to come out regarding assets, debts, income and expenses to ensure that before a settlement, each spouse disclosed everything the law requires they disclose.

What happens if I refuse to provide my spouse with the mandatory declaration of disclosure?

A lot of very bad things can occur. The divorce process allows your spouse to make a demand for the disclosure, get a court order for one and even get significant monetary sanctions (including attorney fees) against you.

In addition, in certain circumstances, the court could 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. The California 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 in identifying the areas of your spouse’s declaration of disclosure which are incomplete and go through a meet and confer process with your spouse’s lawyer to request the additional information.

This is usually done in writing between the lawyers. If your spouse refuses to provide the additional information, there are additional options available to you, including seeking court orders on the missing information.

Does the California divorce process address the issue of finding out after the judgment about a missing asset that was 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 postjudgment motion or order to show cause in the proceeding in order to obtain adjudication of any community estate asset or liability omitted or not adjudicated by the judgment. In these cases, the court shall equally divide the omitted or unadjudicated community estate asset or liability, unless the court finds upon good cause shown that the interests of justice require an unequal division of the asset or liability.

What was left out and why also makes a difference to how your lawyer may approach the situation. The law is not limited to Family Code 2556. Both California law and the 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?

A preliminary declaration of disclosure cannot be waived except for very limited and unique circumstances.

A final declaration of disclosure can be waived if that waiver is in writing and in the proper form. Y

ou should speak with your lawyer before any agreement with your spouse to waive the final declaration of disclosure. Under some circumstances, it is a bad idea.

Step Seven: The Discovery Process

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 interrogatories, request for production of documents, request for admissions and depositions. There are also subpoenas for information from non-parties.

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 exactly what you probably think it is. It is a formal request for your spouse to produce documentation.

Request for admissions are written requests that ask your spouse to admit or deny certain facts to be true or certain documents to be genuine.

A deposition is a question and answer session that is typically in person and attended by your spouse who is questioned by your lawyer. Your spouse’s attorney is also present. Your deposition can also be taken as can a witness’ deposition. Everything that is said is taken down by a court reporter. 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 must be provided 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 provide the responses to the discovery?

If your spouse refuses to provide responses 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 responses.

If the spouses, through the lawyers, cannot reach resolution, 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 Eight: Use of Expert Witnesses

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.

What are the types of experts used in divorce cases?

There are several different types of experts that are used. The following are not all of them but the most common:

  1. Private child custody evaluator.
  2. Forensic accountant.
  3. Vocational evaluator / examiner.
  4. Real estate appraiser.

Experts are often appointed pursuant to 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. They conduct an interview with the spouses, witnesses, review documents, conduct testing, sometimes interview 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 deeper 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.

How much does a child custody evaluation cost?

The cost depends on the complexity of the child custody case and how much work the evaluator has to 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.

How is a child custody evaluation by a forensic psychologist different than a child custody investigation in Orange County?

We have written an article on this subject. Please check it out – Orange County child custody investigations (CCI).

What is a forensic accountant?

A forensic accountant is either a privately retained expert for a spouse or a court appointed expert who conducts an evaluation of the accounting issues for which he or she is appointed.

How is a forensic accountant used in a divorce case?

A forensic accountant may be appointed 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 the several thousands 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 pursuant to Family Code 4331. If appointed by court order, the vocational examiner will then conduct a vocational examination of the spouse. Vocational examiners can also be appointed by stipulation and court order. 

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 exactly what you think it is. It is an expert who is hired to appraise the value of 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. An experienced, certified appraiser is used 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 Nine: Settlements Negotiations

Will my spouse and I be given an opportunity to settle the divorce case and avoid court?

Yes. 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. Even if you and your spouse are not able to resolve every issue, as many issues that can be fairly resolved consistent with the facts and law, the better and less money spent on attorneys fees. 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 me and my spouse 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 obviously start at any time including before the disclosures since custody has little direct correlation for settlement purposes with the financial issues. In most cases, settlement offers are made in writing from one lawyer to the other. Then, counter offers are made until the spouses are able to reach a settlement on some or all of the issues.

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 that. On property issues, communication with your lawyer is very important.

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.

Is there really 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 make 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 really make sense to spend $25,000 in attorneys 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 the filing of the petition to the filing of a stipulated judgment, if both spouses diligently complete their disclosures, produce all the information required by law and reasonably work through a settlement 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 actually become an unmarried man or woman. Ending the status of the marriage however does not have to slow down 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.

When should a voluntary settlement conference take place?

That depends on the case and every case 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 that are more complex and have a lot of factual issues and 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.

How does private mediation work in a divorce case?

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.

Who picks the mediator?

The mediator is typically mutually chosen by the lawyers, with input from the spouses. Retired judges are generally a good choice for the role of the mediator so long as they are experienced in family law.

How long does a 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?

This also varies depending on the case.

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 mediation fees are split 50-50.

There is no hard and fast rule on how this must happen during the divorce process. Payment of the mediator’s fees is something that needs to be discussed between the lawyers and the mediator 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 the type of relationship with your spouse or your spouse’s lawyer (or other factors that may merit disqualification) that would otherwise disqualify the mediator from being the mediator.

What happens if we are able to resolve some or all of the issues in mediation?

Similar to 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 don’t like that idea but you should speak with your lawyer about it. We believe it is always the better idea to have the lawyers present during mediation and nothing should be signed regarding a settlement without each lawyer’s written approval in writing. That is why you have an attorney – for your attorney to advise you on such things before you come to agreement.

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 certain 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. Mandatory settlement conferences are usually driven by local county rules and thus the local process, as opposed to California's divorce process.

If my spouse and I are able to reach an agreement at the mandatory settlement conference, 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 is then instructed to prepare that typewritten version of it. Other times, lawyers who are more tech savvy will actually 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?

Settlements are usually documented in a stipulated judgment. A stipulated judgment is a court judgment that is drafted by each spouse’s lawyer. It is signed by the spouses, lawyers and the judge.

What is a marital settlement agreement?

Marital settlement agreements are similar to 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 and as long as 50 or more pages 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 or attorney will be considered the drafter of the stipulated judgment. Your lawyer can explain to you why such a provision exists and may be important. 

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 back logged the Court is at that time. 

Step Ten of the California Divorce Process

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, requests a trial date. A trial can also be set by the family law judge even if the lawyers did not request one. 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 also varies from county to county in California. In Orange County, a trial date can be set as early as 30 days and as late as many months after the request is made. The primary factors are the length of time the trial is estimated to take, the court’s availability and that of 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 and then present that time estimate to the court. 

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 trial 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?

There are several different reasons and ways a trial date may be continued. 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 continuance, the judge has the discretion to grant the continuance.

Another reason may be the unavailability of the judge because he or she double booked your case with other cases on that day or matters that take priority over your case (such as domestic violence matters) need to go first. The issue of priority 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 simply the inability to finish the trial on the trial date. If that happens, many judges will continue the trial date to a different date to finish it. That different date may be the next day or it could be weeks or months away depending 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. This is a local divorce process more than a State process.

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. When that happens, the spouses can either agree to a bifurcation of the marital status to accomplish this or the spouse who wants it can file a formal request with the court. 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 certain divorce related issues?

Sometimes, certain parts of the divorce case need to be decided before other parts of it can be resolved. A common example is the date of separation. Since the date of separation can have an impact on both support and property issues, lawyers and judges will sometimes want to get that issue decided.

This is done by either an agreement that becomes a court order or, if there is no agreement, a request for a court order to bifurcate issues. Bifurcation can save a lot of time and money if the issue being bifurcated and the final decision on that issue has a significant impact on remaining issues.

How Are Divorce Attorneys Paid and How Much does the Divorce Process Cost?

What is the difference between an hourly rate and a flat fee in a divorce?

An hourly rate is the 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 that is paid for a service.

Do lawyers typically handle divorce cases on a flat fee or at an hourly rate?

Divorce cases are generally handled at an hourly rate or varying rates. However, some lawyers may handle the divorce on a flat fee especially in uncontested cases. There is no right or wrong way when it comes to this although lawyers who handle an entire divorce case on a flat feet are pretty rare because the time spent on a divorce case is not really predictable and can wildly vary from case to case depending on the issues and the level of contention between the spouses.

What is a retainer deposit and retainer agreement?

The retainer agreement is the contract that is signed between the lawyer and the client which explains the terms of the lawyer’s representation of the client. A retainer deposit is typically the initial retainer deposit that is 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 ones are 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 with each other and are on the same page with a reasonable settlement. 

How Long Does the California Divorce Process Take?

I have heard divorce cases go on for years. Is that really true?

How long does a divorce take? The divorce process in California isn’t always short but it doesn’t have 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 can be caused for a variety of reasons.

Does the California divorce process change if my spouse decides to be self represented instead of having a lawyer?

No. Law and procedure does not change because somebody is not represented. A spouse who is self represented is held to the same standard as a represented spouse. That is one of the main reasons representing yourself in 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. This will happen on occasion if the family law judge believes the self represented person is acting in good faith. For example, a continuance request may be a little 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 are trying to unreasonably delay the case or take unreasonable positions.

My spouse is going through several lawyers. She keeps firing them, hires new ones and causes delays. Doesn’t the California divorce process say something about this issue to keep her from continually doing this?

There are several options 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 for the delays. In addition, any continuance requests they make should be opposed when that continuance request is unreasonable. You have more control over the California divorce process 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 6 months. This section only deals with the issue of ending the marriage status and restoring each person to the status of an unmarried person.

You now know much more about the California divorce process.

Ready to learn more? Click on the link below to learn about California's divorce laws.

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. 

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