Divorce - Process
THE DIVORCE PROCESS
A divorce case begins when one spouse submits a Summons and a Petition for Dissolution of Marriage to the county filing clerk for filing. The filing spouse is called the “Petitioner,” and the other spouse is called the “Respondent.” The Petitioner also has a duty to serve a Preliminary Declaration of Disclosure (PDD) either concurrently with the Petition or, within 60 days of filing the Petition. The PDD consists essentially of: (1) an Income and Expense Declaration (2) a Schedule of Assets and Debts, or Property Declaration and (3) copies of Petitioner’s last two years’ tax returns.
The clerk files the original documents and issues the Summons which, when personally served (i.e., handed to …) the Respondent by an adult third party, binds him/her to file a Response to the Petition within 30 days of being served, or else take the risk that the Petitioner will “default” him/her. Each Summons includes Automatic Restraining orders which bind both parties regarding taking the children out of the state of California, removal or selling of property, and cancellation of such payments such as insurance premiums and the like, without consent of the other spouse or court order.
A default prevents the Respondent from being able to address the court regarding any family law issue unless, and until, the default has been set aside. If and when a default is entered, the court clerk will mail a notice of entry of default to the Respondent’s last known address. The Respondent must act immediately, but in no case longer than six months, from the date default was entered, to ask the court to set aside the default. If the Respondent does not file documents within six months asking the court to set aside the default, only facts amounting to fraud, or other substantial good reason must be given for the Respondent’s failure to meet the six month time-limit. Statutes which allow parties to petition the court for set-side after the six month period allow for 1-2 years after the default was entered. If the Respondent is defaulted, the Petitioner must submit a proposed judgment to the court regarding all applicable issues (e.g., child custody, visitation, child support, spousal support, asset division, debt division and attorney’s fees) which the court reviews for apparent fairness, and legal and procedural compliance. If the Judge determines that the proposed Judgment looks fair, and complies with all legal and procedural rules, the Judge will sign it and copies will be mailed to each party. The Petitioner can then petition the court for any orders s/he might need to enforce the Judgment.
If the Respondent files a Response, the matter is deemed to be “at issue,” that is, the matter is in controversy, and each side has a right to be heard regarding all applicable issues. The Respondent also has a duty to serve a Preliminary Declaration of Disclosure (PDD) either concurrently with the Response or, within 60 days of filing the Response.
The divorce is not final until a Judgment is entered. A Judgment is obtained by either Marital Settlement Agreement, in which the parties agree on all of the issues or, by trial of the issues before the Judge (there is no jury trial in family law). It usually takes at least four months for the matter to come to trial after the Response is filed. Many people need temporary orders on such issues as child custody, visitation, child support, spousal support, attorney’s fees, and orders regarding property and/or debts, while they wait for trial. A request for temporary orders is usually filed at the same time as the Petition and PDD, or soon afterward.
Fresno County, Kings County, Tulare County, especially Visalia, California, and Surrounding Areas