How to get a divorce in California?
The question weighs heavily on husbands and wives. This article walks spouses through the process of how to get a divorce by helping them do the following:
- learn the divorce process,
- understand how to hire a lawyer that fits need and budget,
- with the help of a family law attorney, putting together a specific strategy, and
- executing on that strategy.
Perhaps you know the marriage is over and at this point you cannot save it. And yet, the thought of getting a divorce seems overwhelming. Perhaps the divorce process feels too complex. It does not have to be. It takes smart choices and reasonable expectations to get through it right. The choice to get a divorce doesn’t have to overwhelm you regardless of whether you have filed or your spouse has done so. The answer to how to get a divorce in California should not feel out of reach.
Our goal with this article is to better inform you about the California divorce process and navigate through the sometimes mire of how to get a divorce in California. Everything we write is about California divorces. If your divorce is outside the state of California, please consult with an attorney in your State.
This is not legal advice for your specific situation. Please have a private consultation with a family law attorney for legal advice you need. If your matter is or will be in Southern California, give us a call and let’s talk.
The first step to get a divorce in California is interviewing lawyers.
Interviewing attorneys is not on anyone’s wish list in life. It’s not difficult to find a lawyer with whom you can speak. It’s difficult to find a good lawyer with experience and who will be a good fit for you. Lawyers notoriously have a reputation for being poor communicators. And divorce lawyers can be expensive. How do you start a divorce by finding the right lawyer?
You start with due diligence
First, do your due diligence. Before you even consult with an attorney, make sure the attorney has years of experience practicing family law. How much experience depends on your comfort level. Also ensure the attorney does not have a State Bar discipline record. Now days, with the technology and the internet, this is not complicated. You can check the official California State Bar website. Most lawyers and law firms also have their own websites.
Does the initial telephone call matter?
Yes, the initial phone call is important. Speak with a lawyer by telephone if he or she is available. Make sure your case is the type he or she will handle. Your case may be too simple or it may be too complex. Most attorneys can let you know in a short phone call if your case is one they feel comfortable to handle.
Don’t skip the in-person meeting
Third, there is no substitute for a face-to-face meeting. Sit down with the attorney you’re interviewing and listen carefully to what he or she states. Gauge the level of care, attention and experience the lawyer has. Hung up on free consultations? Don’t be. A free consultation may be informative but it also may mostly be the lawyer selling his or her services. Is that what you want? Or do you want a real strategy session? You should want the second. That is where you and the attorney talk about your specific case and your questions.
Our family law firm generally does not offer a free consultation (there are exceptions). But we offer those who come in and see us with the level of care and detailed attention to their needs. This makes every dollar they pay for the strategy session well worth it.
Got questions? Have them ready
Have your questions ready ahead of time. The lawyer should talk about the California divorce process, California divorce laws and how to get a divorce in California based on the facts you provide him or her. Did the lawyer need more information you didn’t have at the consultation to answer your question? Honest lawyers will tell you that instead of telling you what you want to hear. Either way, the attorney should be able to tell you how to get a divorce in California. You want to walk out of the consultation far more educated than when you first walked in.
You have now completed the interviews. It’s decision time. It is generally smart to interview several attorneys before you make a decision.
Is it better to hire a family law firm?
One other thing to keep in mind is the lawyer’s number of staff and resources. If you expect to have a contentious or complex case, consider hiring a family law firm to represent you. Can a solo practitioner handle your case? Perhaps. Once again, your comfort level is important.
The second step of how to get a divorce in California is choosing your advocate.
Now that you have interviewed attorneys, it is decision time. Did the meeting go well? How closely did the lawyer listen to your questions and concerns? How well did the attorney impress you with his or her level of expertise and experience? Did the lawyer answer your questions and educate you about the process of how to get a divorce in California? Was the fee quote within your budget? Was the lawyer honest with you about what your fees may be going forward?
If an attorney tells you that your fees won’t exceed a certain amount, then ask for that in writing. Some unscrupulous attorneys will simply lie to their clients. What if the lawyer tells you he or she will cap your fees even though the lawyer charges by the hour? Read the retainer agreement carefully. Don’t sign it if it is not consistent with what the lawyer explained to you.
What is the scope of the family law attorney’s services?
Does the attorney represent you on a limited scope? Or for all aspects of your divorce? Limited scope means the lawyer does not represent you for all aspects of your divorce. It means he or she will only handle specific issues or specific hearings. For example, a lawyer may only represent you on child custody issues and nothing else on a limited scope.
The third step of how to get a divorce in California is setting a strategy that fits your budget and reasonable needs.
You have interviewed attorneys. You have hired one of them or, better yet, a reputable law firm to represent you. The first two steps are complete. Now comes one of the most important parts of the process of how to get a divorce in California – setting goals and strategy.
Be smart about litigation
Divorce litigation for the sake of litigation is a waste of time and money. The answer to the question of how to get a divorce in California is not bury your spouse in paperwork and litigation. Such a strategy may blow up in your face.
Every case and client should have a custom strategy to that particular client's needs. Don’t have unreasonable expectations of the process. Do not let emotions rule the day or your course. Do not be a bully and do not allow yourself to be bullied. You want to get from the start to the finish line in a reasonable time. Strategy and planning are the key.
Navigating through the dysfunction is part of the process
Of course, neither you nor your advocate will be able to control your spouse or your spouse’s attorney. Neither one of you will control the backlog that will likely exist in the family court and with the judge. There is a certain level of dysfunction that unfortunately exists when you decide to get a divorce in California. Nevertheless, experienced family law attorneys can help you get through that dysfunction. Your attorney should lay out specific strategies on how to approach issues such as:
- Child custody and visitation,
- Child support and spousal support,
- Splitting community property assets and determining what is separate property,
- Attorneys fees and who pays what and why, and
- Every other issue in your divorce.
Make offers early on issues that should be easy to resolve
It does not make sense to spend thousands of dollars on child custody and visitation issues with two good and fit parents. A good divorce lawyer does not waste his client’s time and money litigating such issues. A good divorce lawyer:
- Sits down with the client,
- Formulates the parenting plan that makes sense, and
- Early in the case make settlement offers to the other spouse or the other spouse’s attorney.
You should handle every issue in your divorce this way. If the issues are straightforward and there’s no reason to wait, settlement offers should be early and often.
Spouses may not come to an agreement in any foreseeable way. Perhaps the spouses have sharply different perspectives on the facts. Maybe one spouse is simply being ridiculously unreasonable. In such a situation, spending a lot of time and money in settlement negotiations will probably be a waste of time. Those cases need to go to hearing. Flesh out these contested issues early in the divorce.
When you’re dealing with a highly unreasonable spouse, it is a almost unavoidable for a divorce to get expensive. It is also common for it to go much longer than it usually would. If that is your case, then your lawyer and you will likely need to evaluate and reevaluate strategy more often.
The fourth step to get a divorce in California is getting necessary, temporary orders.
Spouses may need temporary orders. The most common ones are:
- child custody,
- parenting time,
- child support, spousal support, and
- attorneys fees.
There are others depending on the individual case.
One spouse often files the request for order to put these issues in front of the court. The court will sometimes make temporary orders on all the above issues. This allows some stability to take place while the spouses and their lawyers resolve as many issues as they can.
These temporary orders are a necessity but it doesn’t always have to be by litigation. If the parents resolve custody and visitation, they should also resolve child support unless the parents dispute each other’s income. Spousal support on a temporary basis is often based on the same computer program as child support. Thus, once again, unless there is a real dispute about income, there should not be too much litigation on temporary spousal support.
Attorney fees are a critical issue if one spouse significantly out earns the other one or has significant access to resources to pay for fees compared to the other one.
A critical fifth step on how to get a divorce in California is exchanging preliminary disclosures.
The preliminary declaration of disclosure is made up of mandatory information and documents the California Family Code requires spouses to exchange. Limited exceptions exist to the duty to exchange a preliminary declaration of disclosure. Those exceptions are beyond the scope of this article.
The goal of the preliminary decoration of disclosure is for each side to know what all the assets, debts, income and expenses are. This allows each spouse to have complete and accurate information. Incomplete or inaccurate information can significantly impact settlement discussions and resolution.
Too many spouses do not take disclosures seriously. Too many lawyers in our experience simply do not understand the importance of them. Well drafted disclosures that are complete and accurate can speed up the entire divorce process. It can also narrow issues and allow spouses and attorneys to settle issues early.
The sometimes misunderstood sixth step on how to get a divorce in California may be the “discovery” process.
Discovery is the formal request for information. Discovery depends in large part on the complexity of the case. The simpler the case, the less discovery needed. The more complex the case and issues, the more discovery is generally required. Discovery includes:
- formal interrogatories (both in a preprinted form or specially drafted ones),
- formal requests to produce documents,
- written request for a spouse to admit certain facts as true, and
- depositions and more.
If there is hiding or failing to disclose assets, lying about income, etc., discovery may become contentious.
We believe depositions are one of the most powerful discovery tools that exist. It’s one thing to take deceptive positions and hide behind a lawyer. It is quite another when the court reporter places the other spouse under oath in a room and we ask the other spouse to answer our questions. It’s not easy to explain lies when you catch a spouse in them. We often catch the other spouse in those lies at depositions. Both they and their lawyers quickly learn that whatever they planned to pull over on the court or us will probably fail. We use depositions on those cases that merit it and include sharp disagreements on important issues.
The seventh step of how to get a divorce in California involves exchanging settlement offers.
Settlement can be great. It gives both spouses the opportunity to dictate their own lives and their own futures. Resolution on custody and visitation issues take the decision away from a stranger in a black robe (the judge). Settlement on financial issues gives spouses the power to control their present and future financial needs. Settlement on property and assets gives the spouses the ability to divide what they have worked hard during the marriage to attain.
It shouldn’t be all or nothing with settlement
Settlement on every issue is not always possible. Just because you cannot settle everything does not mean you should not settle anything. Lawyers sometimes make the mistake of being their client’s puppet and take an all or nothing approach. I’ve never understood this approach but it is pervasive in our area of law. Spouses may not resolve financial issues. That does not always mean they should litigate custody. Spouses may disagree on whether an asset is community or separate property. That does not always mean they should litigate support issues.
Sometimes, you cannot separate interconnected issues and settlement of one depends on the other. But most of the time, two good lawyers with two reasonable clients should be able to resolve at least some issues, if not most issues. That way, the judge decides those issues you cannot resolve.
Cost versus benefit analysis is essential
Do a cost versus benefit analysis. Only a dummy spends nine dollars on a ten dollar dispute. On custody issues, litigation can get expensive. Some people rightfully believe there is no price you can pay to protect children. However, if there is a financial issue that is worth $10,000, it is foolish to spend $10,000 on it, right?
If you really get into a situation like that and your spouse is just being unreasonable and refusing to compromise, there are options. One option is an attorney fee motion against the other spouse. Family Code 271 partly exists for this reason.
The eighth step of how to get a divorce in California if the case does not settle is setting the divorce for trial.
Some or all the issues in a divorce may not resolve. In those situations, the judge may set the case for trial. In Orange County, either attorney or self represented party can file a document called an “at issue memorandum.” The court then sets a trial setting conference. At the trial setting conference, assuming the case is ready, the court can and usually does set a trial date.
Sometimes, the court will set a mandatory settlement conference before setting the case for trial. The family court wants to give each spouse this sometimes final, cost effective opportunity to resolve the issues.
A court may break up trials and let certain issues go first. The court may do this on its own motion or at a lawyer’s request. A common example of this is date of separation disputes. A date of separation can control many other issues. These include the community versus separate property character of an asset or debt, spousal support issues, and more. Often, a bifurcated trial is necessary.
The ninth step of how to get a divorce in California involves exchanging final disclosures.
The final declaration of disclosure is a more comprehensive version of the preliminary declaration of disclosure. It has many similarities but it is not identical. The Family Code requires the exchange to take place no later than 45 days prior to the first assigned trial date. There are exceptions to this. You need an attorney’s advice on these issues. A final declaration of disclosure is sometimes waived if the matter settles. This is not a good idea on some (and some lawyers believe, many) cases and you should speak with your divorce lawyer regarding whether you and your spouse should waive the final disclosure.
The final step of how to get a divorce in California when settlement is not possible is going to trial.
It is beyond the scope of this article to do an in-depth presentation of what it means to go to trial. Fortunately, we have written an article on California divorce trials.
While every spouse hopes to avoid trial and hopes to resolve the issues, trial may be unavoidable in certain divorce cases. The goal of the trial should always be to have the court make rulings consistent with the facts and the law. The law instructs family law judges to make decisions on the case’s merits. Procedural issues can sometimes get in the way of the merits. For the most part, our experience has been that family law judges want to do the right thing. That means family law judges want to make rulings consistent with what they believe the law mandates.
Trials may be the most expensive part of the divorce process. Whether a case goes to trial is something the spouses should consider carefully. Strategic planning is important.
Did you enjoy this article?
We hope you did and now it’s time to start making good choices. Looking for an experienced, knowledgable and a trusted family law firm for a potential or pending divorce? If so, please contact us for an affordable strategy session. We have offices in Orange County and Los Angeles.