What Happens After Divorce Papers are Served?
We provide you answers for uncontested and contested divorces
What happens after divorce papers are served?
The answer in a California divorce case depends on whether the divorce is contested or uncontested.
What happens after divorce papers are served in an uncontested case? A timely response is filed and served and the spouses then work to settle all of their disputes in either a divorce mediation or other setting that doesn’t involve litigation.
How about contested California divorce cases? A timely response is still filed and served although there typically follows litigation that may involve discovery requests, requests for orders and even trial.
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In this article, we discuss generally what happens after divorce papers are served in California, in both an uncontested and contested case. We will assume for the purposes of this article the divorce papers were properly served and there is no issue about that. We are also going to assume in this article there are no issues regarding California jurisdiction (the court's power to make orders) or whether the divorce was filed in the right county within California.
This article is not legal advice. If you need legal advice on your specific case and you have a California family law matter, contact our family law firm for an affordable strategy session. We handle family law cases in Orange County, Los Angeles and each of the other five Southern California counties. Like what you read? Please share this article with friends or family.
The automatic temporary restraining orders go into effect
Let's quickly talk about something important that you should know once you have been served with a divorce petition. They are called California ATROs, which stands for automatic temporary restraining orders and you can find them on the back of the summons. What are they? We suggest you read our article on California ATROs to learn all about them. It's important reading because the ATROs immediately go into effect on the respondent once the divorce papers are properly served.
What happens after divorce papers are served in an uncontested case?
Uncontested cases typically follow a predictable path. Once divorce papers are served (which should include the divorce summons and petition), several steps follow.
The response to the divorce petition after the divorce papers are served
The response to the divorce petition is called exactly that. It is form FL-120 and the respondent can either file the response to the divorce petition without also requesting divorce or can file it and affirmatively also request divorce in response. Most divorce responses also ask for divorce. California law doesn't require both spouses to agree to a divorce. If one spouse wants it, that is enough.
The preliminary declaration of disclosure after divorce papers are served
The preliminary declaration of disclosure consists of several forms that need to be completed. The two most important ones are an income and expense declaration and a schedule of assets and debts. Think of a preliminary declaration of disclosure as the first opportunity to disclose everything that is community property or separate property as well as list all of the income and expenses. California law is strict on nondisclosure. Hiding or misrepresenting assets or lying on an income and expense declaration is a recipe for disaster.
California Family Code 2104 requires the preliminary declaration of disclosure to be exchanged within the following timelines:
The petitioner shall serve the other party with the preliminary declaration of disclosure either concurrently with the petition for dissolution, or within 60 days of filing the petition. The respondent shall serve the other party with the preliminary declaration of disclosure either concurrently with the response to the petition, or within 60 days of filing the response. The time periods specified in this subdivision may be extended by written agreement of the parties or by court order.
- California Family Code 2104
The settlement communications after divorce papers are served
In uncontested divorce cases, settlement discussions start quickly. We believe the preliminary declaration of disclosure should be exchanged and it should be complete before substantive settlement discussions start and certainly before any settlement agreement on financial issues is signed. The reason is simple – settlement discussions should be serious when both parties know everything there is to know about assets, debts, income and expenses.
The final declaration of disclosure
California Family Code 2105 requires the final declaration of disclosure to be exchanged within the following timeline:
Except by court order for good cause, before or at the time the parties enter into an agreement for the resolution of property or support issues other than pendente lite support, or, if the case goes to trial, no later than 45 days before the first assigned trial date, each party, or the attorney for the party in this matter, shall serve on the other party a final declaration of disclosure and a current income and expense declaration, executed under penalty of perjury on a form prescribed by the Judicial Council, unless the parties mutually waive the final declaration of disclosure.
- California Family Code 2105
In uncontested cases, when there is no trial, it should be exchanged before the final judgment and most appropriately before the judgment is finalized and signed. Some spouses prefer to waive the final declaration of disclosure. Whether that is wise or not depends on the facts of the case and beyond the scope of this article.
The divorce judgment after divorce papers are served
The divorce judgment is the final document that settles all of the divorce issues and lays out the terms and conditions of the divorce including but not limited to custody, child support, spousal support, property and debt division.
Is an attorney’s representation needed after divorce papers are served?
Yes. We don’t believe there is an exception to this although we understand some people choose to represent themselves.
What happens after divorce papers are served in a contested case?
The response, preliminary and final declarations of disclosure are typically the same as an uncontested case
The response to the divorce petition, preliminary and final declarations of disclosure are usually the same in contested cases. There can be practical differences in the timing of them and whether requests are filed to compel their disclosure if they are not exchanged or incomplete but we won’t go through that in this article.
The request for temporary orders once divorce papers are served
After divorce papers are served, the petitioner may file a request for order and seek temporary orders. The respondent can do the same thing. There are different types of temporary orders a spouse may seek.
The higher earning spouse in a divorce typically faces the support and attorney fee orders.
The discovery process after divorce papers are served
The discovery process is very common in contested cases once divorce papers are served. Discovery is the formal request for information by one spouse to the other spouse. These can include:
- Form interrogatories (preprinted questions),
- Special interrogatories (custom made questions),
- Request for production of documents,
- Requests to the other spouse to admit certain facts as true,
- Requests to the other spouse to admit the genuineness of certain documents, and
- Notices of depositions.
California divorce depositions are proceedings where questions under oath are asked of one spouse, outside of court (typically in an attorney's conference room) and in the presence of a court reporter.
These are not all of the discovery tools available but they are the most common.
Attorney fee requests and oppositions to them after the divorce papers are served
Attorney fee requests are common after divorce papers are served. There are different types of attorney fee requests. We will talk about the two most common one although there are others.
The first are "need based" attorney fee requests in divorce proceedings. These are requests that focus on a spouse's need for attorney fees and the other spouse's ability to pay it. These fee requests can also be made against liquid community or separate property funds or even request the sale of assets to pay for fees. Family Code 2030, 2031 and 2032 typically deal with these requests.
The second type are "sanctions" requests and the most common type is from Family Code 271. These requests have no "need" basis but they also cannot cause "an unreasonable financial burden on the party against whom the sanction is imposed."
Settlement offers and response to them after divorce papers are served
Just because a case is contested doesn't mean nothing settles after divorce papers are served. Settlement discussions should occur between spouses. Even if everything cannot be settled, some things may be resolved to at least make the divorce case less costly for everyone. If a spouse refuses to engage in settlement discussions or makes unreasonable offers, documenting that is important for the Family Code 271 sanctions request or, for the higher earning spouse, avoiding attorney fees by showing the other spouse has caused unnecessary fees to be incurred.
The trial on issues that cannot be settled
We suggest you read our article on California divorce trials. It is quite excellent, if we do say so ourselves. After divorce papers are served, a contested case may go to trial. Family law trials can get pretty complex. An attorney's representation is very important.
You have been served with divorce papers - now what?
It doesn't have to be high stress or doom and gloom. You need an attorney's help. We are a premier California family law firm with offices in Orange County and Los Angeles. We offer an affordable initial strategy session and are ready to help.
We hope you enjoyed this article.