Blog Topic

The Divorce Process
Posted by: Bill Edgar
February 12, 2009

The party filing for divorce must be a resident of the county in which they file for at least three months and a resident of California for at least six months prior to filing for divorce.  This is a jurisdictional requirement, called the residency requirement, and the court does not have the discretion to change the requirement.  A legal separation does not have the same residency requirement and is often filed when the residency requirements have not been met. 

A Summons and Petition for Dissolution of Marriage is filed in the Superior Court.  This Summons and Petition must be personally served by someone over the age of 18 and not a party to the action.  I always advise against having any family member or friend serve the Summons and Petition.  There are alternate means of service if personal serive is impossible, such as publication.  The date of service is important because it establishes the "jurisidictional date."  The quickest a person can be divorced is 6 months and 1 day from the jurisdictional date or the date of service.  This waiting period is also statutory and can not be modified.  Despite what you may hear or see advertised as a "quick divorce," this can not be changed by the court. 

We often file an Order to Show Cause at the same time as the Summons and Petition.  By filing an Order to Show Cause (OSC) a court date will be set to get temporary orders pending a settlement conference and trial.  The OSC can be filed to get child custody and visitation orders, child and spousal support orders, and property control orders.  If there is domestic violence, a restraining order should be filed immediately as well.  It is important to hire an attorney during the early stages of the divorce becuase it will dictate how the rest of the case may go.  It may difficult to undo the temporary orders once they are in place.  

The next step would the characterization and valuation of the property.  The general presumption is that any property, whether it is asset and debt, that is acquired during marriage is community property and would be divided equally.  If property is acquired prior to marriage or after the date of separation, then it would generally presumed to be separate property.  There are many nuances to these general presumptions and you should hire an attorney in order to property evaluate and protect any of your property rights.  As part of the characterization and valuation process, discovery should be conducted to properly evaluate the property issues.

The next step would be a settlement conference.  A settlement conference may be with a local experienced family law attorney or a judge, and they will sit down with the parties and try to reach a negotiated settlement.  Some or all of the issues may settle at the settlement conference.  Any issues that are not settled would get set for trial.  The majority, if not all, family law trials are bench trials and not jury trials.  If a person is not satisfied with the trial results, they may be able to appeal the decision in the Court of Appeal. 

It is important that you have legal assistance throughtout the divorce process, please contact us to set an appointment to discuss your legal rights and options. 

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