WHAT TO EXPECT IN DIVORCE COURT

What happens in divorce court and why?

What to Expect in Divorce Court. What Happens and Why?

What to expect in divorce court
What to expect in divorce court? What happens and why? This article helps explain the California divorce court hearing process, specifically that of Orange County.

What to expect in divorce court? 

Divorce Court can be scary for everyone except for judges and divorce lawyers. We are used to it. What to expect in Divorce Court is the scariest part because the unexpected can lead to fear. Fear of what? Fear of the unknown. Sounds obvious but the best way to make the unknown “known” is knowledge.

We have good news for California husbands and wives who have Divorce Court ahead of them and want to know what to expect or just want more information on the process. 

For those who have a divorce cases in Orange County, Los Angeles, or any of the other five Southern California counties or expect one in the near future, don’t stop once you have read this article. Our talented divorce lawyers are available for an affordable strategy session.

What to expect in Divorce Court from yourself?

I realize you are surprised I led with this but there’s a good reason for it. Before you worry about what to expect from lawyers, judges and the Family Court, focus on what you can control the most – yourself. There are three things to keep in mind:

  1. Expect you will know your facts before you walk into Divorce Court. If you think your lawyer is supposed to know everything and you don’t need to do anything but show up to Divorce Court, you are doing yourself and your case a disfavor. Expect you will be in Divorce Court prepared for the outcome.
  2. Experienced divorce lawyers will tell you that Divorce Court isn’t black and white. You don’t walk in, read a script and get handed the predestined result. Expect you will have to read your paperwork and know it well before you walk into Court, whether that is your declaration, that of witnesses, your lawyer’s legal arguments presented to the Court or all of it. Also read what your spouse and his or her lawyer have presented to the Court. A prepared mind is rarely surprised and what you should expect in Divorce Court is you, prepared and ready.
  3. Expect you will not let fear, stress or emotion take over in Family Court. It is normal to be scared. It would be odd if you were not stressed out. If you don’t get emotional at some point about your divorce, you’re not human. But realize that letting any of it take over your thought process is foolish and may not lead to good results. You should expect in Divorce Court that you will be factual, logical and as unemotional as you can regarding your decision making process. That means when your lawyer speaks with you about choices to make, you make them based on the facts, not anger or other unhealthy emotions.
  4. Expect you will tell the truth in Divorce Court even if your spouse lies. Yes, this should go without saying but I am still writing it to emphasize a critical point. I do so because the temptation may be there and you should not give in to it. The Honorable James Waltz, a Family Law Judge in Orange County, has a quote from Edward Murrow posted by the door that leads into his Courtroom. The quote goes something like this, “To be persuasive we must be believable; to be believable we must be credible; to be credible we must be truthful.” You should expect in Divorce Court that you will never stray from the truth, no exaggeration of the truth or misrepresentation.

What to expect in Divorce Court from your lawyer?

A good divorce lawyer should agree with what I write here. And if you are not seeing this from your divorce lawyer in Family Court, you should ask yourself why that is.

You should expect your lawyer to be prepared in Divorce Court. Just like you will be familiar with your case, your lawyer should be too. He or she should know the facts, know what your testimony will be, what questions will be asked of your spouse and witnesses and how the arguments will be presented to the judge. While Family Court isn’t scripted, it’s not an ad-lib process either.

You should expect your lawyer to communicate with your spouse’s lawyer while in Family Court. Family law is a small community in Orange County. Lawyers who exclusively practice family law (like those at our law firm) will generally know our colleagues well because we have gone up against many of them in other cases. Lawyers are expected to discuss the case and attempt resolution or at least narrow the issues for the Court to avoid situations where everything is in dispute and nothing is able to resolve.

You should expect your divorce lawyer will talk with you extensively as the Court day progresses. In Family Court, your divorce lawyer should be in regular communication with you about several topics. These include (a) status of discussions with your spouse’s lawyer (b) status of settlement potential or narrowing of issues and (c) regular status updates on your matter (including when your case is expected to start). We discuss section (c) in more detail below.

What to expect in Divorce Court from the judge?

Once again, much of what we write here is again from our experience with Orange County Family Court. Family Courts do vary from county to county but the difference is usually not dramatic on the list we are about to give you:

You should expect the Family Law Judge will have to juggle your court case along with others on his or her calendar. There is one exception and that is if your case is “specially set” for the judge’s calendar. That means the Family Law Judge has previously carved out specific time to dedicate to your case.

You should expect the Family Law Judge will have to prioritize the types of cases. This falls under the category of what the Family Law Judge “should do” although they don’t always do it. There is a priority in which cases are supposed to be heard. That priority from first to last is: (1) domestic violence cases (2) child custody cases (3) everything else. That means, for example, if you are in Family Court on a child custody case, you should take priority over every other case on the judge’s calendar other than domestic violence cases.

You should expect the Family Law Judge will want your lawyer and your spouse’s lawyer to give the judge a “time estimate.” Lawyers are sometimes bad at estimating how long a hearing will take. That is mostly because family law cases are tough to predict, even among very experienced divorce lawyers. The longer the time estimate, the more challenging it will be to fit your case in the calendar. But giving short time estimates when the matter will take longer is not wise. It could lead to an upset Family Law Judge and your matter continued anyway. It could even lead to a mistrial, where the judge requires everyone to start over on a different date.

You should expect the Family Court will want to know why your matter has not settled. Courts are congested. Some Courts are more than others. Even certain courtroom departments in the same courthouse are much busier than others. For these reasons, the judge will want to know why your case hasn’t resolved and it is possible the Family Court will even nudge each lawyer to continue to talk about resolution while you wait for your case to be heard.

Some judges are more assertive than others about this. Some make suggestions. Others will expect the lawyers to participate into a chamber’s conference and some judges even make suggestions on what a settlement should be.

Now, let’s briefly discuss some specific situations of what to expect in Divorce Court.

What to expect in Divorce Court when faced with temporary orders?

Temporary orders are those that are sought before trial until the order is modified to become the one ordered at final judgment. The more common ones (although not all of them) are child custody, child support, spousal support (also called alimony) and attorney fees. There are also a variety of emergency (called “ex parte”) orders that are sometimes brought during a divorce case.

What to expect in Divorce Court when one spouse seeks temporary child custody orders?

Here are some things you can expect in Divorce Court on typical child custody issues:

  1. The Court will want to hear evidence (typically testimony and/or documentary evidence) on the child’s best interest, specifically on issues of health, education, safety, general welfare, stability, continuity and anything else that will impact the child’s best interest. In contested cases where each parent seeks primary custody, these issues become important.
  2. If there are serious allegations of abuse or neglect or issues such as substance abuse, the Court may make orders to keep the child safe while the allegations are investigated. This may include orders for a partial or full child custody investigation (called a CCI), child custody evaluation by a forensic psychologist, drug or alcohol assessment or minor’s counsel (a lawyer for the child or children).
  3. If the Court believes that independent and Family Court appointed experts are not necessary to make orders, it is reasonably possible for the Court to allow a full hearing with testimony on the issues.

Without complicated issues, child custody issues can be straightforward inside an Orange County Court. The Court doesn’t always hold a full evidentiary hearing (opening statement, formal testimony, documents and exhibits, closing argument) although it is more likely if one of the parent’s lawyers insists on one.

If it doesn’t hold a full hearing, you should expect the Family Law Judge will likely still give each side the opportunity to present their case in a less formalized setting. This is sometimes called presenting the case through an “offer of proof” where both parties are sworn (placed under oath) and they then present their case in a less formal but much faster manner.

An argument can be made that this offer of proof procedure is no longer proper in family law cases with some of the new laws and rules that have been passed in the last few years. These laws came into effect because family law proceedings had become too informal and spouses were not getting a proper opportunity to present their case and its relevant facts.

What to expect in Divorce Court on temporary child and spousal support matters?

You should expect the Family Law Judge will make rulings on temporary child support and spousal support issues by relying on the computer program that calculates it. How simple and straightforward this process is depends on whether income is in dispute. For W2 employees and income beyond reasonable dispute, there is usually not a full evidentiary hearing. After all, the income and expense declaration and income verification attachments may be sufficient.

But the more complex the income issues become, especially when dealing with divorce for self employed spouses or fluctuating income, testimony may be required and sometimes one or both of the spouses’ attorneys may have hired a forensic accountant to appear and testify regarding cash flow and income for support purposes.

What to expect in Divorce Court regarding attorney fee orders before trial?

Attorney fee orders are supposed to be handled like any other temporary order hearing. Family Courts are not supposed to take shortcuts with such hearings. When attorney fee orders are sought as part of something else, such as a support or custody hearings, the Court will hear everything at the same time. But when attorney fee motions are brought on their own, the process can be inconsistent. Sometimes, there is a full hearing. Other times, the Court may even make the ruling just on what the parties have filed, even though that is not proper.

What to expect in Divorce Court about emergency orders?

Sometimes, orders are sought with minimal notice. In Orange County divorce cases, this notice can be as late as 10am, the day before the Court date. In family law cases that involve domestic violence, the notice can be even shorter. Under some circumstances, there is no notice at all although that is for cases and facts that involve more immediate danger to health or safety. Advice from an attorney who is familiar with your specific facts is important here.

Such ex parte (emergency) requests are simple. Unless it’s an unusual case, you should expect the Family Law Judge will not have a full hearing on your emergency request but rather base the decision on the paperwork you submit and, if you gave notice and your spouse submitted a written opposition, after reading that too.

In Orange County, the papers are first submitted to the clerk’s office on the 7th floor and then a Family Law Judge is assigned to hear the ex parte unless the judge has already been assigned to the pending divorce case. That judge will read all of the paperwork in his or her chambers and you should expect the Family Law Judge to then either deny the request, grant it or deny in part and grant in part. The far majority of the time, no matter how the judge rules on the emergency request, there is a further hearing set and you are given notice of it.

What to expect in Divorce Court at trial setting conferences?

Trial setting conferences are generally the first major step toward getting a trial date. In Orange County, the trial setting conference is attended by the lawyers. The spouses usually don’t appear although they can if they wish and sometimes the Divorce Court may order the spouses to appear. Of course, if a spouse is self represented, he or she must appear because there isn’t a lawyer to handle it. To be certain, a spouse should always speak with his or her lawyer before any trial setting conference to see if attendance is mandatory or, even if not, helpful.

At the trial setting conference, the judge will ask if the case is ready for trial. Here are some of the most common scenarios that follows and you should expect:

Let’s assume both parties agree the case is ready for trial. In that situation, the Divorce Court may: (a) set the trial date when dates are discussed and cleared with everyone’s availability or (b) not set the trial date yet and instead set a mandatory settlement conference date (discussed below).

If one spouse states the case is not ready for a trial, the Family Court can still set the case for trial but that is not as common unless the case has been delayed for an unreasonable time or the reasons the spouse is requesting a trial not be set is not a good one.

What to expect in Divorce Court at a settlement conference?

In Orange County and most other Courts in Southern California, there is a Court conference called a “Mandatory Settlement Conference” or MSC for short. Mandatory settlement conferences are handled a variety of ways.

Some are simply an opportunity for the lawyers and spouses to sit down and work out a settlement on as many issues as possible. In others, the Family Court may get involved but there is one perspective that the same judge that will do your trial should not be involved in settlement discussion.

The Court could also assign a settlement officer (which can be a lawyer that volunteers his time and sometimes a retired judge) to help the parties settle. This is more common with self represented spouses.

What to expect in Divorce Court at trial?

We have written a comprehensive article on California divorce trials and provided general information on this important topic. Please check out our article on California divorce trials.

For additional reading, check out our article on expectations in a divorce and important questions to ask a California divorce lawyer before hiring one.

About the Author

B. Robert Farzad

B. Robert Farzad is the president of Farzad Family Law, APC. Every Orange County divorce or paternity case Mr. Farzad handles receives his p...
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