We’ve resolved all issues but I don’t know what to do next?
Even uncontested divorces can be tricky to finalize when you are not an experienced divorce attorney. In California, if you and your spouse have agreed on all issues (child custody, child support, spousal support, property & debt division and attorney fees), you can proceed by a process called ‘default’ which allows you to finalize your divorce without the other party filing all of the mandatory forms and without (usually) having to appear in court. One spouse files a Petition for Dissolution of Marriage and Summons and has a third party personally serve the other spouse. The friend, family member or process server who serves the Petition must file a Proof of Personal Service. Once 31 days have passed since service, the Petitioning spouse may file a Request to Enter Default, Income and Expense Declaration, Property Declaration, Declaration for Default, Judgment, and Notice of Entry of Judgment. If you have minor children, you will also need a Child Custody and Visitation Order Attachment, Child Support Information and Order Attachment, Child Support Case Registry Form, and a Notice of Rights and Responsibilities.The forms and procedure for this type of divorce action can be found here. Assuming you have a full agreement, you and your spouse may work together to write that agreement up and incorporate it into a Judgment for Dissolution of Marriage. Assuming neither spouse is receive public assistance, requesting child or spousal support or seeking an annulment — chances are neither of you will ever have to go to court. Assuming six months have passed since your spouse was initially served with the Petition, your Divorce will likely be final on the day your judge signs the Judgment and it is filed by the court.
Judgments for Dissolution of Marriage can be tricky to get approved by the court in your County. If you are having difficulty getting your Judgment processed by the court, it may be prudent to spend an hour or two with an attorney who can give you pointers on what changes need to be made to complete the divorce. Often times we find that clients struggle with understanding the child support rules. So, for example, if you and spouse agree to a child support amount that feels fair to both of you, you will still need to calculate child support based on California guidelines. If the amount is different than the amount the two of you agreed upon, you will need to explain why the amount you agreed upon is in the best interests of your children.
I am trying to finalize my divorce but my spouse and I can’t agree on everything. We are stuck and I don’t know how to move forward….
What happens when a Petition and a Response has been filed but you can’t come to a full agreement and your case feels like it is ‘lost in the system?’ In this situation the process usually starts with one spouse filing a Request for Status Conference or Request for Case Resolution Conference. Some counties have local forms you must use. For example, in Alameda County, the local form can be found here. A status conference will be scheduled where the Judge will usually ask the parties what the outstanding issues are. At this point the Court may order you to return for a ‘Settlement Conference’ to discuss the remaining issues and see if s/he can help you resolve your differences before setting trial. Preparation for a settlement conference is super important and it would be a good time for you to meet with an attorney to help you prepare. Other judge’s may set the matter for a trial and have all of the contested matters decided at that time or require you first to complete pretrial matters like service of mandatory financial disclosures. Once all issues are resolved amicable or by a judge who hears the case, a Judgment must be prepared before the divorce action will be considered final.
There are no hard and fast rules regarding when you can or should employ an attorney to help you through your divorce. If your separation issues are fairly minor, it might work for you to do as much of the paperwork on your own until you feel stuck or need some help strategizing and/or completing the divorce paperwork. Of course, it would be most prudent to have an attorney on hand from the start of your divorce action (or even a bit ahead of filing if possible) to ensure that your rights are protected and you are not prejudicing your case in any serious way. That said, many litigants find that they all they need is a bit of help along the way. To learn if a legal ‘coach’ might be right for you, take a look at an article we recently wrote about the role a coach can play in getting your divorce completed so that you can move on!
**Please note that this blog pertains to existing California law and is meant for informational purposes only. Please do not make decisions that will affect your future based on things you’ve read on our website. Instead, consult with a Certified Family Law Specialist – It doesn’t have to be us, but be sure to seek out sound legal advice that pertains specifically to the facts of your case.