Three Typical Cases: Default, Uncontested, and Contested

A California divorce begins once a spouse files a “Petition” in the Superior Court for dissolution of the marriage. The Petition requests a dissolution of marriage along with other marital issues such as property division, debt division, child custody, child support, spousal support, payment of attorney fees and court costs, etc. Once the Petition is filed, the path to resolution of the divorce depends on Respondent’s action. The Respondent may

1) Not respond to the Petition

Default: The Respondent in the case does not file timely response to the petition for divorce or legal separation. The Respondent “defaults” and the case proceeds without the Respondent’s participation.

2) Settle the case; or,

Uncontested: Parties settle by way of agreement. The Respondent may or may not file a Response.

3) Respond but contest the divorce.

Contested: Response is filed and the case is resolved by a Judge.

Uncontested and Default Divorces: Step by Step

Informational purposes only!

Step 1: Decide Which Court: 

The case must be filed in a court that has authority to hear your case, requiring compliance with jurisdiction requirements.

Step 2: Download and Prepare Initial Forms

• Petition – FL-100 – Asks the court for a divorce and to decide other issues
• Summons – FL-110 – Notifies your spouse of the divorce
• Proof of Service of Summons – FL-115 – Explains when and how you notified your spouse
• Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act – FL-105 & Attachment FL-105(A) – Informs the court of information regarding your children if any
• Disclosure requirements – FL-140, FL-141, FL-142
  
• Property Declaration – FL-160 – Lists your assets
• Income and Expense Declaration – FL-150 – Explains your monthly finances
• Blank Response – FL-120 – Given to your spouse
• Request to Waive Court Fees – FW-001 – available to lower income persons
• Court order requests – procedure depends on what you request including restraining orders, support and property issues
• Required local forms – your specific county may require additional forms

Step 3: File Petition and Other Documents

Obtain copies for service

Step 4: Serve The Petition and Other Documents 

Have another person over 18 hand your spouse the petition, summons, blank response, then notify the court.

Step 5: Default – Absent a Response

If your spouse does not take certain actions you may request that the court decide the matter.

Step 6: Financial Disclosure 

Gather ALL your financial information. For property issues complete declaration requirements and file and serve Income and Expense Declaration – FL-150 or for simpler estates Financial Statement – FL-155. File and serve a final disclosure or waiver.

Step 7: Marital Settlement Agreement 

If the Respondent agrees to settle issues of the divorce, the singed marital agreement will state the resolution. Deciding how to resolve these issues is complex which can be disappointing to parties looking for a fast and cheap answers.  Common issues include:

• Division of Property and Debts
• Child Custody and Support
• Spousal Support
• Attorney Fees & Costs

Step 8: Order for Wage Garnishment for Child or Spousal Support 

Orders the payor’s employer to garnish for support.

Step 9: File Judgment Documents

These docs contain the resolution to all divorce issues which become final with court approval.

Step 10: Service of Judgment

This notifies you and the other party of the decision.

Step 11: File Child Support Case Registry

Sends notice of child support requirement to the State.

Step 12: Serve The Order To Withhold (Wage Garnishment) On Spouse’s Employer

Provides notice of the order to the employer of the paying spouse.

Complex Contested Divorce Steps :

Procedure and Strategy Varies Widely

Don’t underestimate the complexity of divorce. Just because the system permits you to represent yourself does not mean you should. At minimum contact an attorney for an individual consultation or to coach you along. Rapid deadlines and complex procedures present obstacles regardless of your desire and aptitude to learn the law. Making mistakes can cause lifelong negative results.

Preliminary Motions: 

These can be thought of as a “trial before the trial” where a party is asking the court to decide an issue. Obtained by filing an “Order to Show Cause” or “Noticed Motion:”  The waiting period before the hearing varies as certain requirements must be met. An ex parte hearing is used for quicker relief. The strategy of obtaining a preliminary motion also varies depending on the stage of the proceeding and on what is being sought:

• Custody – you want to protect your relationship with your children
• Support – you need money from your husband or wife
  
• Property & living arrangements – you want to protect your assets or you want your spouse out of the house
  
• Attorney fees and costs – you want your spouse to pay for the costs of the divorce
  
• Domestic violence – you want to protect you or your children from harassment or violence
  

Conduct Discovery

You, your spouse, and the court may need to know all about your finances. Begin by asking your spouse for all relevant info, then evaluate the need for formal discovery including depositions, interrogatories, requests for admissions, and others. Required disclosure requirements assure that there are far less surprises in a real family court than the drama displayed on TV. Also keep in mind that formal discovery is confusing without an attorney and expensive with one.

Obtain a Hearing

The court schedules hearings. Often people are frustrated that they must wait around all day for the court to spend only a few minutes deciding their case.

 

Attend Settlement Conferences

Identify all unresolved issues and attempt a resolution. The procedure varies as each county has different rules.

Prepare Evidence for Trial

Complex evidence rules dictate how you will present your case. Don’t assume that you will be able to “wing this” rigid procedure or that the judge will “let you slide” because you are representing yourself. The judge is obligated to follow the law.

Attend Trial

Come prepared and dress appropriately.

Complete the Steps Required Documents for a Valid Judgment

The judges decision needs to be recorded with the court.