The Separation
This article is to provide a general overview of the divorce process couples usually go through when they want to get divorced.
Keep in mind that each state has its own special rules, and that this article is only to provide a general overview of what divorce involves.
Most states have a separation requirement meaning that the husband and wife must have lived in separate households (not bedrooms) continuously for a certain amount of time. Filing a petition for divorce must be done in the state of residence after the separation requirements have been met.
The Petition
A petition for divorce is also called a “Complaint for Dissolution of Marriage.” Certain required forms must be completed, a fee paid and the papers filed in the superior court of the appropriate county.
In the petition for divorce, a section for specifying the grounds for divorce must be completed. Even for a no-fault divorce, there must be a reason listed. Examples ground for no-fault divorce may be “irreconcilable differences” or “irretrievable breakdown of marriage”, etc.
Another section that must be completed is the specification of all assets owned by the married couple. These include residence, property, cars, and other shared possessions.
After this petition (also called a complaint) is filed, your spouse must be informed. This is called being “served.” When your spouse has been served (usually meaning that a process server has handed him a copy of the petition), the court must be notified that this has been done and your spouse has a certain number of days to formally file an answer. Once the answer is filed, a hearing will be set.
If no answer is filed, the judge may grant you everything you asked for in the petition.
Sometimes, your spouse cannot be located. In this event, you may do “service by publication.” Notice of the divorce is then published in a newspaper in the county where your spouse last resided.
Temporary Hearings
Since a trial may not be held for up to a year, sometimes there will be temporary hearings or requests for a judge to decide issues (called motions) such as temporary spousal or child support. These may include custody of minor children, child support, exclusive use of home or car, an injunction to make sure health insurance is not cancelled, freezing of access to investment accounts temporarily, award of attorney’s fees, and alimony.
The Agreement
All agreements in a divorce should be detailed in a written agreement. This is an important part of a divorce as it lays out how to split property and debts, child custody and spousal support. If this can be done without going to court, then it’s better for everyone. These decisions must be detailed in a written agreement which outlines the rules and states what conditions each spouse has agreed to. It is a legally binding contract and can have two primary purposes.
First, it sets the time period between the initial separation and the time of the divorce. Since this initial separation could last from several months to years before the actual divorce is completed, it is very important to identify and settle the necessary issues in writing. Usually, this will be done at the temporary hearing mentioned above.
The agreement can be the legal document that settles all the divorce issues that is used to get a final judgment or divorce decree by the divorce court (or judge).
If both spouses have retained an attorney, that the attorneys will conduct what is called discovery to gather all financial information and then negotiate the terms of the settlement for their clients. If no agreement is reachable through this collaborative law method, a mediator may be used, or if that still does not help reach an agreement, the matter can be taken to court and the judge will decide.
The Trial
A divorce can be a battle. Each attorney will try to get their client what they want, and sometimes, it creates a hostile environment.
Most of the time, divorce trials are held in front of a judge and not a jury. Issues are addressed such as establishing entitlement to a divorce, arranging child custody and visitation rights, arranging child support, arranging spousal support, and settling financial aspects and property distribution.
The judge will look at the evidence presented and will make a final decision immediately or within hours.
If a spouse is not happy with the decisions that judge has made with regard to the divorce, they have the right to appeal. If they win the appeal, it goes back to court usually in front of the same judge. Note, the appellate court does not decide or change the terms originally determined by the judge.
Call the Law Offices of Aaron O. Anguiano to use his many years of experience in the divorce process and family law as an attorney in the Modesto, CA area.
