You cannot fully protect yourself without knowing what is out there. In general, discovery is one of the most expensive investments in a divorce. Not only does it cost money to prepare and serve discovery, but it also takes a substantial amount of time to review the documents and other answers to the discovery. In addition to cost, discovery is often considered to be an act of war.
Whenever you serve discovery, you should be prepared for your spouse to retaliate with the same requests and interrogatories. This may ultimately increase the conflict and tension. Finally, discovery can be abused. Some people can use this tool as a weapon, and so long as it is masked under a guise of being relevant, you will have little protection from the law.
Discovery responses are generally due 30 calendar days after service. If the discovery was served by mail, you have an additional 5 calendar days, changing your deadline to 35 days after service. If you or your spouse miss the deadline to respond to discovery, any objections to responding are automatically waived. If you need more time, you should ask for an extension.
Discovery extensions are fairly common, and obtaining a written agreement for an extension that also preserves your ability to object to the discovery will protect you and your rights.
If a person fails to respond to discovery, or the answers are incomplete, the party seeking the discovery may file a motion with the court to compel answers or the production of documents. It is generally a good idea for both parties to discuss the outstanding discovery before going to the time and expense of filing a formal motion.
If there was no response, the meet and confer is a suggestion but not a requirement. Once all reasonable and good faith attempts have been made to resolve the issue, commonly known as a discovery dispute, then the motion to compel will likely be filed. A motion to compel must include the following:. The court can issue sanctions for failure to comply with the discovery process.
These sanctions include the following:. While the code does not specifically state the amount of attorney fees, the goal is to encourage both sides to be transparent and comply with the discovery process.
If a party continues to fail to respond to discovery, a judge can issue a number of various nonmonetary sanctions. A motion to compel must be filed no later than 45 days after the response to the discovery was filed. If a person does not respond at all to discovery, he or she can be served with a motion to compel at any time. In the event that a trial date has been set, a hearing on a motion to compel must be scheduled at least 15 court days before trial.
A complete settlement involves a full resolution of all issues related to the divorce. Settlement is a two-way street, meaning that it truly has to be an agreement between you and your spouse. Your final judgment, or divorce decree, will recite the terms of your agreement. Divorce issues include the following:. A full agreement will be detailed enough so that both of you understand the terms and conditions.
It will also need to be written down in a proper legal format that can be approved by your judge. In order to settle, both of you will need to compromise.
Neither spouse is going to get everything on his or her wish list. At the same time, a good settlement will be one that both of you can live with. It makes sense to begin discussing financial settlement as soon as both spouses have exchanged their preliminary declaration of disclosure Step 5. As for the other issues, there is no automatic timeline for when settlement can begin.
Your specific situation will dictate the best time to begin discussing settlement. Keep in mind that you may not be in a position to settle your case for a long time, and there is nothing wrong with waiting. Your family is going through an enormous amount of change, and it can take time to get settled in. Your children may need to adjust to living in separate residences before you can determine whether or not the visitation schedule is best for them.
As for the issue of support, it can be very daunting to try and determine what amount is reasonable. Divorce is a time of upheaval, and many people have to move to new residences and even new cities.
Monthly budgets change, some spouses are looking to enter the workforce, and both spouses are recovering from the financial impact of divorce. In other words, rushing to resolve the issue of support can be financially detrimental to one or both spouses.
Take your time. While settlement for the sake of settlement is rarely a good idea, there are many advantages to reaching a resolution with your spouse. Settling your case with your spouse allows the two of you to retain control over your own lives. You and your spouse are in the best position to determine what is best for you and your children. No matter how compassionate your judge is, that person is still not going to have to live with the consequences.
You and your spouse will live with the decisions that are made in your divorce. It is your choice as to whether or not you want to be the ones making the decision, or if you want to give that power to a third party who will never really know you as people. Settlement allows for greater creativity in the divorce process. By settling, you and your spouse have the opportunity to do better than what the law gives you.
You can come up with unique and creative solutions to your problems. While a judge is limited by the law, you and your spouse are only limited by your creativity and willingness to work together. In addition, settling your divorce is very empowering and teaches you important tools to working together in the future.
Divorce changes your relationship, but in most situations, it does not end the relationship. It is your choice as to whether you want your future relationship to be cordial and friendly, or contentious and bitter. Once your divorce is done, you want it to really be done. A judge can help you with your case through something called a Settlement Conference. A Settlement Conference is a court hearing where a judge assists parties with resolving their differences.
Judges assist with the settlement process by listening to both sides and suggesting compromises. Some judges will provide input as to their thoughts on the legal aspects of the issues or give insight as to how they might rule if the issues were presented at trial.
Settlement Conferences, if used correctly, can be an effective and positive method to resolving divorce cases. A final settlement agreement is documented in a divorce Judgment. If it is an agreed-upon judgment, it is called a stipulated judgment. The Judgment contains the legal terms and provisions as related to your agreements. Every county has its own specific procedural requirements for a divorce judgment, but in general, you will be required to use form FL and cover the following issues:.
There are two types of child custody, legal and physical. Your agreement should state whether you will share joint custody, or if one parent will have sole custody. You should have a clear parenting schedule that defines when your children are with each parent.
Detailed visitation agreements will also contain provisions related to holidays and vacations. Child Support. The amount of child support payable from one parent to the other should be stated. If you are choosing an amount of child support that deviates from what a judge would order under the state guidelines, you should be clear as to why you are choosing to do something different.
Child support agreements should also clarify which parent is claiming the children as dependents on tax returns, how uninsured medical expenses, child care, extracurricular activity, and other child-related expenses are divided, and who will be providing health insurance. Spousal Support. The amount and duration should be specified as to each spouse, as well as the tax consequences. Property Division. You should be prepared to clearly state what you and your spouse each receive in the divorce.
This includes everything from the household items to the retirement accounts. It is very important to clarify which spouse is responsible for what debt in order to avoid missed payments and credit damage. Attorney Fees. Even if each of you will be paying your own attorney fees, you should say so in the Judgment. Marital Status. You have the option to pick the date you become single again, although you generally cannot pick a date before you actually submit your judgment or before the mandatory six month waiting period.
If you do not have a preference, the date will be selected on your behalf. Step 9: Trial When is a divorce case set for trial? Trial dates are typically only scheduled after all other settlement options have failed, including a Settlement Conference. Trials can be requested by one or both of the spouses, but there are times when the judge will set a trial, even if neither party asks for a trial date.
In some situations, bifurcating separating certain divorce issues from the rest of the case can actually aid in settlement. One of the most common bifurcated issues is regarding the date of separation. Once a judge makes a ruling on the date of separation, it can be easier for spouses to resolve their property and debt issues. Bifurcating certain issues can save time and money, and if you fall into that category of cases, you may wish to consider asking your judge for a bifurcated trial.
Unless you can settle your case, the only way you can finish your case is through a trial. While you may be able to temporarily delay your case being set for trial, you will not be able to do so forever. At some point in time, the judge will set a trial date. One of the questions the judge will ask is for a trial time estimate. Trial days are very different than business days.
A half day is considered to be somewhere between two and three hours, and a full day is about six hours. You will need to tell the judge how many days you think your trial will take. Alternatively, the judge can also give you another trial date, which may be many months later. Both spouses will have to testify at trial.
Lay Witnesses. These witnesses testify about their personal knowledge of the facts in your case. These witnesses need to provide relevant information regarding the disputed issues in your case. Expert Witnesses. These witnesses testify based on their special knowledge and proficiency in a particular field. There are two types of expert witnesses, those appointed by the court, and those who have been privately retained by one of the parties.
These experts are considered neutral, and their job is to report their expert opinions to the judge. What kind of preparation is involved in a California divorce trial? Each county has its own unique set of specific pre-trial orders. These orders need to be carefully followed, and failing to do so may result in you not being able to present your evidence.
You need to provide the other side and the court with a summary of all of the documentary evidence you intend to present at trial. Exhibits are anything other than testimony that can be perceived by the senses and include things such as records, photographs, charts, tangible objects, and letters.
Witness List. This is a list of all of the people you intend to call as witnesses at trial. Trial Brief. A trial brief is a roadmap of your case. It summarizes the issues, facts, and law in support of your trial position. What should I expect at trial? Trials generally follow the same organizational pattern. The Petitioner puts on his or her case first, followed by the Respondent.
This is neither a good nor bad thing — someone has to go first. The judge will confirm that both parties are ready to proceed with trial. This includes reviewing a number of details such as ensuring that both sides have all of the exhibits, paid their trial fees, and discussed the case. Opening Statement. You have the option to provide an opening statement at trial. Many family law judges prefer to skip this step; however, it is an opportunity to provide the judge with an oral roadmap and present a factual summary of the case.
Each witness is called up to the stand to testify. This initial testimony is called direct testimony. Direct testimony is usually presented with open-ended questions that start with who, what, where, when, how, and why.
Once direct examination is done, the other side has a chance to ask questions by cross-examinations. Closing Argument. Once all of the evidence has been presented and all witnesses have been questioned, each side has the opportunity to provide a closing argument. A good closing argument puts all of the pieces of the puzzle together to create a clear picture of the desired outcome. It explains how all of the facts, law, and evidence work together in your favor.
In addition, you will also receive a separately filed Notice of Entry of Judgment. Once you receive these documents back, you will know that your divorce is final. After you submit your proposed Judgment to the court, it can take weeks and even months before your judge is able to review and approve it. Until it is filed, you are technically not done with your case.
This waiting period can be extremely frustrating and stressful, since there is little you can do to speed up the process without hiring a private judge. If you choose to hire a private judge, your judge will be able to review and sign off on your judgment must faster than a public judge. You will first and foremost want to review your judgment to make sure you are in full compliance with the orders. Common examples of what you may need to do after the divorce include the following:.
It may be a good idea to create a checklist in order to avoid missing any important action items. If you requested the restoration of a former name in your divorce judgment, you can begin changing your name once you receive your filed judgment back from the court. You will need to start with filling out an application for a new Social Security card with your restored name. You will also need to provide your new name to your employer to change your payroll and Human Resource records.
Revoke your will and draft a new one if you have not already done so. While California law states that a divorce revokes any bequests that your will made to your former spouse, you should still update it.
That way, you can clarify where the property that previously would have gone to your former spouse would go to instead. Name an executor. You will want to consider changing executors. Name a guardian for your minor children. In the event that both you and your spouse die, you will want to ensure that your children are cared for by an individual or individuals that you trust.
Update beneficiary designations. You will want to review all assets that may not be part of your will. These assets include retirement accounts, life insurance policies, and bank accounts. Make new powers of attorney. These documents give someone authority to act for you if you are somehow incapacitated.
This typically includes an Advance Healthcare Directive, which allows another person to make medical decisions on your behalf.
During marriage, this person is typically your spouse. As such, you will want to consider designating someone else to make these important decisions about your life. Consider a living trust. A living trust is a written document that is a partial substitute for a will. Your assets are put into a trust, administered for your benefit during your lifetime, and ultimately transferred to your beneficiaries upon your death.
If you own property and have minor children, a living trust is typically a good idea. When are the retirement accounts divided? Many divorce judgments contain orders that the retirement accounts need to be divided. You should not delay in preparing the QDROs.
Dividing retirement accounts can be very complicated and is often mishandled. As such, you will want to start the process as quickly as possible. It can be done by a transfer or a rollover by the IRA custodian. You will want to make sure that you do not divide the IRA before there is an established order to do so, and you do not want to delay once there is a valid order.
If you transfer too soon or take too long, there may be negative tax implications. The key to remember with retirement division is that it is not something that automatically occurs. A divorce judgment is not enough. It is up to you and your former spouse to take these last steps and ensure that your rights are protected.
No two divorces are the same. Some of the steps listed in this guide will not be taken by all divorcing couples. Other steps are required, and it is vital that you take the right steps for you and your family in order to ensure a fair outcome.
We hope that you take care of yourself during this difficult time in your life. In order to better understand the divorce process and how it relates to you, please take the next step by contacting us. Obtain the knowledge you need to take control of your own divorce with the help of our video series that walks you through the California divorce process. Join us as we go step by step with detailed explanations of required court forms, including shortcuts and insider tips that will help you avoid common mistakes.
Get started now, or read an overview. Divorce Resource Center. Visit our divorce resource center to learn more about the process and better prepare yourself for the days ahead. Download court forms, read legal answers to your questions, and dive into detailed articles on some of the more nuanced aspects of separating. California Child Support in 10 Steps. Date of Separation Importance and Implications. Here are some questions you may wish to ask yourself before deciding to file for divorce: Have I done everything within my abilities to repair the relationship?
Am I really ready for a divorce, or am I reacting emotionally? You must file a Motion for Substituted Service and a Rule b Affidavit from the constable, sheriff or private process server. If the judge is convinced that your spouse can be found at the location where service was attempted, the judge can sign an Order for Substituted Service that authorizes the constable, sheriff, or private process server to:.
This method of service is used if you cannot find your spouse after looking really hard , and there are no children involved. This method of service is used if you cannot find your spouse after looking really hard , and there are children involved.
As a general rule, only the initial divorce papers citation, petition, and any other papers you file with the petition need to be served by a constable, sheriff, private process server or the court clerk.
You can serve the rest of the papers yourself. Send a copy of any other papers you file in the case to your spouse. If your spouse has a lawyer, send a copy to the lawyer instead. You can use any of these delivery methods:. Exception: If you file an amended petition for divorce and your spouse has not filed an answer, you must have your spouse served with the amended petition. Follow these steps:. Common Topics. Family, Divorce, and Children.
All Topics. Court Basics. Individual Rights. Name Change. Protection from Violence or Abuse. Self Help. Featured Self-Help. Self-Help Guides. Ask a Question. Guided Forms. Informative Articles. The filing spouse must do everything possible to find and serve the other spouse. However, if you can't locate your spouse or your spouse is purposely hiding or avoiding service, you can ask the court for permission to serve your spouse another way.
The court refers to this as "service by alternative means" or "substituted service. You can request an alternative form of service by filing a motion and affidavit of attempted service with the court.
The motion and affidavit will explain what efforts you've made to serve your spouse. If your motion demonstrates that you've made your best efforts to serve your spouse, the judge will sign an order allowing you to use alternative means for service. The order will contain the judge's specific instructions on how to serve your spouse. You must follow the instructions closely. The most common method of alternate service is by publication. You'll need to follow your court's service by publication rules, but in most courts you'll have to place notice of the divorce in a newspaper that you could reasonably expect your spouse to see.
The court's order will specify how long the notice must remain in the newspaper. You'll be responsible for placing and paying for the ad, but you usually can ask the court to order your spouse to reimburse you later. If you can't afford to place an ad, ask the court what other options you might have—the court might allow you to instead post the notice at the courthouse where you filed for divorce.
With the number of print newspapers dwindling across the country, it's become more common for courts to allow other forms of substituted service. Some forms of service that courts have allowed include:. No matter what form of service you use, you must follow exactly the rules of service and any court orders regarding service. If you fail to properly serve your spouse, the court might dismiss your case, leaving you no option but to start the process all over again.
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Grow Your Legal Practice. Meet the Editors. How to Serve Divorce Papers. Service of process ensures that both spouses know about the divorce and can respond to and participate in the proceedings. Serving Documents After You've Served the Petition The requirement to serve your spouse doesn't end after you've served a copy of the divorce petition—you must continue to serve your spouse with a copy of everything you file in court.
Who Can Serve Divorce Papers? Possible process servers include: A friend or family member. As long as the person isn't involved in the divorce, you can have a friend or family member act as your process server and save yourself the expense of having to pay someone.
You'll have to make sure the friend or family member closely follows all state and local rules regarding service, though, or risk having to start the process over.
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