When you hire a divorce lawyer, you are hiring him or her to help you get a divorce. What does that mean? Very simply put, at the end of this lengthy process, is a Judgment of Dissolution. Your divorce is not final unless this judgment is entered. Sounds silly, but some people believe they are divorced even without that piece of paper. Some have come to my office after unsuccessful jaunts with lawyers who let the case drag on for years without obtaining judgment. Here are the steps that need to be taken to get back to being single again.
Step 1: Filing of petition/response. California is a no-fault state. This means that either spouse may file for divorce without proving someone is at fault (i.e. cheating, physical violence, etc.). To start a divorce, one party files a
Petition for Dissolution. Currently, this petition costs $320 to file. Then the party who filed it must serve the papers to their partner to notify them that a divorce proceeding has been filed. I recommend you notify the other person before serving the papers. We’ve all seen the video footage of the crestfallen face of Kevin Federline, who allegedly discovered via text message that Britney filed for divorce. Divorce is difficult enough. If there is any room for courtesy, apply it.
After the other person gets the paperwork, they have 30 days to file a response, which costs $320. If they do not file it, the person who filed the Petition (called the
Petitioner), may request a
default judgment. In this case, they will generally receive everything they have asked for in their paperwork. (with some exceptions which you must discuss with an attorney).
In California, a judgment is entered no earlier than six months after the date the responding party (called the
Respondent) is served with papers.Why?This is the waiting period created by the Legislature to encourage reconciliation. It is also a period where you can obtain all the financial information you need before entering into an agreement.
After the initial Petition is filed,
automatic temporary restraining orders , also known as ATRO’s, kick in. They apply to both parties. The purpose of ATRO’s is to prevent angry parties from absconding with the children or wasting away all assets in order to spite the other side. Some examples include:
1. You cannot remove minor children from the state.
2. You cannot take benefited party off of insurance.
3. You cannot transfer, convey, encumber, or conceal property.
4. You cannot create probate transfer without notice.
Filing and serving divorce papers is just the first step to divorce. It is not the last. To get a judgment, you must keep going.
Step 2: Getting temporary orders via an Order to Show Cause.
Because it takes six months (or longer) to obtain a judgment, some stuff needs to be sorted out in the interim. For example: Who stays in the house? Who pays for the mortgage? If you are the supported spouse, will you get your living expenses paid for? What about spousal support? If you have children, who has custodial rights? What about child support?
Because your questions need immediate answers, it is wise to get an immediate court date in order to resolve these issues. You get a court date by filing what's called an "
Order to Show Cause”, also known as an OSC. It can resolve issues of
custody, visitation,
child support,
spousal support, attorneys’ fees, etc. OSC are called “pendent lite," which is Latin for “while the case is pending”. They are temporary orders, though in some cases they may end up being permanent. This is especially true in custody cases, because status quo is favored and the longer a temporary order stays in place, the firmer a status quo arrangement becomes.Currently, filing an OSC costs $40.
An OSC does not mean you are trigger-happy and racing to court to win. At all stages of divorce, you have the option to reach an agreement with the other side. You are always in control of whether you want to go to court. If you reach an agreement, you can file it the court. Usually, the judge will agree with you and commend you for settling. There are certain exceptions, of course. For example, in California, you can never take away the court’s power to rule on child support. It is always a good idea to file an OSC when issues of custody or visitation and support arise. Again, it takes six months or longer to obtain a judgment. In the meantime, both parties should desire temporary orders for peace of mind. Of course, if both parties have been separated for a long time, are self-supporting and have no children, there may not be any issues to be resolved. In this case, you can forgo the OSC.
