Overview of Steps Involved In Most Divorces
Orange County Divorce Lawyers Discuss the Process
The following provides an overview of the steps in a typical
divorce. However, keep in mind that every case is different, and yours might take
a very different path.
STEP 1 – INITIATING A DISSOLUTION
- A Petition for Divorce is filed with the court. The spouse that files it
is called the “Petitioner”.
- The other spouse (the “Respondent”) is then served with these papers.
Note: The date Respondent receives the Petition for Dissolution is also
called the Date of Service, and marks the 6 month “Waiting Period”
or “Cooling off Period”. Final Judgment cannot be entered
per California Law until this period is satisfied.
"Self Help Divorce Tips – getting divorce started" for more details on this process.
STEP 2 –RESPONSE TO PETITION
- Respondent has 30 days to file the Response papers with the court from
the date they are served with the Petition for Dissolution. Respondent
must mail - serve them on petitioner.
STEP 3 – DISCOVERY & INVESTIGATION
Both parties must complete the following Judicial Council Forms within
about 60 days from the date the Petition was filed with the court.
- FL-142 – Schedule of Assets and Debts
- FL-150 – Income and Expense Declaration
- FL-140 – Declaration of Disclosure
- FL-141 – Declaration Regarding Service of Declaration of Disclosure
and Income and Expense Declaration
To obtain additional information, counsel for each side will often also
serve various types of
“Discovery” including requests to respond under oath to written questions (“Interrogatories”),
Demands for Production of Documents, and Requests for Admissions of Fact.
- Subpoenas may also be issued to banks, businesses, and so forth to obtain
- Depositions: In addition, either side has the right to take depositions.
These are more expensive, and often not conducted in smaller cases. A
deposition is a legal proceeding, usually conducted in an attorney’s
office, where the attorney verbally asks a party or a witness questions.
This testimony is recorded on paper by a certified court reporter.
Retention of Experts: Experts may need to be retained regarding various
issues. Experts can be expensive, so often extensive efforts are made
to settle the case before they are retained. However, in other instances,
experts can be an indispensable tool in getting a case settled or adequately
prepared for trial. Such experts may include the following:
Appraisals: A professional appraiser may have to be retained to conduct
an appraisal of real or personal property, such as of a house, or antique
piece of furniture or art.
- Often parties will stipulate to share the cost of the appraisals.
- Business Valuation: If there is a business at issue, an expert may have
to be retained to conduct a business valuation.
- Forensic Tracing: A qualified accountant may need to be retained to trace
the source of income to determine whether property that was acquired is
community, separate (i.e., belongs to one party alone), or some combination
of the two.
- Actuary: An actuary may need to be retained to calculate the community
interest in retirement accounts.
STEP 4 – REVIEW DISCOVERY/SETTLEMENT
- Attorneys analyze all of the information collected about the case.
- Based on this analysis, a plan is discussed with the client on how to proceed.
- When appropriate, a settlement proposal is usually submitted to the opposing
party for review. This may be to resolve temporary issues pending trial,
like for temporary spousal and/or child support, and/or to resolve the
- If your case settles quickly, congratulations! You just saved a great deal
of time, money, uncertainty and stress. Your spouse will also be easier
to deal with in the future. However, even after you reach a settlement,
the parties must still complete the following tasks:
- Prepare a final settlement agreement to be filed as a stipulated judgment
with the court along with other required forms related to judgment.
File a “Declaration Regarding Service of Declaration of Disclosure
and Income and Expense Declaration” (FL-141) – (Should have
already been filed when the PDD was done):
- In addition, both parties must make sure their FL-150 and FL-140 are complete
and don’t need to be updated. Then certain documents must be filed
with the court to confirm that the parties have provided each other with
current financial disclosures.
Wait for the court to sign off on your judgment package:
- After all parties and their counsel sign the Stipulated Judgment (your
settlement agreement), it will sit in the judge’s to-do pile for
some time, until the judge has the time to review it, confirm the Stipulated
Judgment has all the required language, appropriately executed forms,
and sign off on it. If the stipulated judgment was filed within less than
6 months since the date the Petition for Dissolution was originally served
on the respondent, then the court will not sign off on the Stipulated
Judgment until after the 6 month cooling off period has expired. Sometimes
the court will simply indicate a future date at which time the dissolution
will be final. If that period has already expired, you simply must wait
until the judge has the time to get around to it. It can be as short as
a week, but typically takes a month or so because the judges are too few
STEP 5 – REQUEST FOR ORDER PENDING FINAL TRIAL
If some or all issues can’t be settled, you can go to court to ask
for “Temporary Orders” pending the final trial or resolution
of your case, for such issues as:
Note: If minor children are involved, a mandatory mediation date will be
issued prior to any hearing regarding child custody, so the mediator can
work with parents as to custody and visitation issues.
Note: If any of these are ordered it can delay the divorce process anywhere
from 1 to 4 months or more.
If either party brings a hearing pending trial to obtain court orders to
resolve issues about custody or visitation, the judge can make orders
after considering evidence from both sides. In addition, the court can
also set further hearings, to allow for any of the following items, to
help the court make its decision:
A Family Code Section 730 Evaluation
- A psychologist is appointed by the court to interview the parties, the
children, and witnesses to make child custody recommendations to the court.
- One or both parties will be ordered to pay the cost of the evaluation.
The total expert fees for this are usually in the $5,000 - $15,000 range.
An Emergency Child Custody Investigation (“CCI”)
- This is a streamlined, child custody evaluation, usually as to very specific
issues. It is usually conducted by trained counselors on staff with the
court. A CCI is ordered where time is especially of the essence, such
as when there are grave concerns about children’s safety.
The Appointment of Minors’ Counsel
- A separate attorney is appointed by the court to represent the children,
and to speak on their behalf.
STEP 6 – REQUEST TRIAL DATE
- An “At Issue Memorandum” (L-0031) is filed with the court to
request a trial date. Note: Both parties must have filed their FL-141
forms in order for the court to accept the At-Issue Memo.
Attend Trial Setting Conference and Mandatory Settlement Conference.
- After an At Issue Memorandum is filed, the court will usually set both
a Trial Setting Conference ("TSC") (to schedule a trial date),
and a Mandatory Settlement Conference ("MSC"). Some require
the MSC to happen before they will give you a TSC.
- Both hearings are sometimes set on the same date.
Note: Prior to going to any court hearing, your Attorney will advise of
possible outcomes, expenses, and alternative actions. This is so you can
make an informed decision as to how to proceed.
STEP 7– MANDATORY SETTLE MENT CONFERENCE
Mandatory Settlement Brief prepared by Attorney
- Your attorney will prepare a pleading that explains your position in the
case as to all disputed issues.
All parties must update their financial disclosures.
- [See “File a Declaration Regarding Service of Declaration of Disclosure
and Income and Expense Declaration” above.]
- All parties will go to court for a Mandatory Settlement Conference (MSC).
At the MSC, sometimes an attorney appointed by the court (a volunteer),
will attempt to help both parties and their counsel settle some or all
issues in their case. This proceeding usually takes place in a very informal
manner in the court hallways or court cafeteria.
STEP 8 – TRIAL PREPARATION
- Often, a great deal of time and money is spent at this stage. Thus, this
presents an incentive to both sides to settle the case prior to this stage.
- Any final investigation and discovery will be completed. Some of these
tasks may be more expensive items that were being delayed in hopes the
case could be settled.
- Any deposition transcripts will be summarized and indexed for trial.
- All trial exhibits will be prepared and organized. This may include key
financial documents, or “demonstrative” exhibits like charts,
graphs, and time lines of events.
- Trial Brief: A written brief providing a road map of the evidence and legal
arguments will usually be prepared and submitted to the judge.
- The attorney will prepare outlines of his or her direct and cross examination
of the parties, witnesses, and expert witnesses (if any).
- Practice Session(s): The attorney will meet with you and the witnesses
to run through the questions, so both you and they are more comfortable
with what to expect in court.
STEP 9 – TRIAL
You, your Orange County divorce attorney, and any experts and witnesses
will attend trial and the opposing side and his or her counsel, experts
and witnesses. In Family Law Court:
- There is no jury, just a judge to decide your case.
- Witnesses (when not testifying) and sometimes the public can be excluded
from the courtroom.
- Both counsel have the opportunity to present an opening statement, which
is a roadmap to the case.
- Petitioner’s counsel goes first. Petitioner’s counsel then
presents his/her client’s “Case in Chief”, calling witnesses
to the stand in whatever order Petitioner’s counsel chooses. After
each witness testifies, Respondent’s counsel may cross-examine each
witness. Then Petitioner’s counsel may re-direct the witness, Respondent’s
counsel may re-cross, and so on, until the attorneys are done with that
- After Petitioner is done presenting his/her "Case in Chief",
then Respondent gets to put on his/her "Case in Chief", in the
same method as followed by Petitioner in putting on Petitioner’s
"Case in Chief".
- At the end, Petitioner's and Respondent’s counsel will each have
the opportunity to make a “closing argument” to the court,
summarizing the evidence and legal arguments.
- The court will then make final orders at that time, or “take the
matter under submission” to review the court transcript and exhibits,
and make a ruling on another date.
Consider a Private Judge
- Due to the lack of funding for California Courts, there are not enough
judges. Thus, the court may not have the time to hear your matter for
many months, or all at once. Thus, for example, even if your trial is
expected to take 3 full days, the court may only have the time to hear
your matter in 2 – 4 hour segments, over a period of weeks or months.
It is stressful, frustrating, and wastes time and money, to continually
prepare for court, show up, wait around for your matter to be called,
put your case on for a few hours, only to have to come back days, or weeks,
or months later, to do this process again and again.
- Thus, it is usually faster, and often less expensive, for both sides to
agree to pay for a Private Judge to hear cases that are expected to take
more than a day to litigate – depending upon the regular judge’s
availability. Private Judges often run about $400 to $800 per hour, with
each side typically paying half.