The participants control the actual divorce process. The length of time it takes to pursue a divorce through the court system affects the process as well. In a litigated case, it often depends on how crowded the court docket may be in your state or county, and can take two years or more. A Divorce Process through the courts may include the following stages: Jurisdiction, Summons and Petition, Temporary Hearings, Mediation Co-Parenting Classes, Advance Case Review, Discovery, Experts, Settlement, Settlement Conference/Pretrial, and the Trial.
Many people are not aware divorces are not required to go through a contested courtroom proceeding. Mediation or Collaborative Process cases can proceed at the speed the clients choose, completely within their control with the exception of the minimum waiting period in each state before a divorce can become final.
- Divorce Process: Jurisdiction – Before a divorce is filed, a determination must be made where the matter will be heard. Different states have different rules for bestowing jurisdiction. In California, a party must have lived in the state for 180 days prior to filing. If there are two possible jurisdictions, it may benefit the party filing to serve the divorce documents first to choose jurisdiction in their state. It is the primary benefit of serving and filing first. There is little benefit to serving and filing first other than to prepare in advance and to choose the jurisdiction.
- Divorce Process: Summons – The summons is a document announcing a divorce or legal separation action is being commenced in California. This document also indicates from the time it is filed moving forward, neither party may dispose of marital assets, change insurance coverage or modify any other significant holdings except for the necessities of life.
- Divorce Process: Petition – The Petition has two parts. The first part is a statement of facts which describes the identities of the parties, whether they have children and what assets they may hold. The second part of the Petition seeks relief such as an award of custody, spousal maintenance or child support and a division of assets and debts. The Petition is often tailored to seek the maximum relief. It is a positioning paper that will often seeks as much relief as the proponent could possibly seek.
- Divorce Process: Petition and Response – In the divorce process, the opposing party has thirty (30) days to submit a response to the divorce petition. The response is the opposing party’s statement of facts and request for relief. Often the service of a response is waived. This is often done to save the parties the cost of an additional filing fee should the matter be settled. However, if the opposing party does not grant a waiver or extension and a response is not filed within thirty (30) days, the original party may seek a default. A default means that the original moving party may request the relief requested in their petition without opposition. Late answers are often accepted since courts prefer determining cases on their merits rather than by default.
- Divorce Process: Temporary Hearing – A temporary hearing may also be called a Pendente Lite Hearing. Such a hearing may be scheduled by either party by filing a Motion supported by an affidavit. Temporary/Pendente Lite hearings are designed to resolve issues while the divorce is pending including temporary custody, temporary child or spousal support; where the parties are going to reside pending the resolution of the case; protection from harassment and domestic violence; injunctions against financial improprieties; and the use of assets such as bank accounts, investments, or property.
- Divorce Process: Discovery – Discovery refers to the “investigation” phase of the divorce process. It is primarily dedicated to identifying the contested issues, a determination of assets, income and debt of the parties. This exchange of information can be conducted informally with the parties agreeing to freely exchange the information or, formally, through the submission of formal documents that require answers under oath. (See Declaration of Disclosure)
- Divorce Process: Experts – Experts are often employed to determine certain facts. Experts may be jointly agreed upon by the parties, which can save the cost of having individual experts testify at trial. Where that is not possible, each side may hire an expert to contest an issue and require their testimony at trial. Common experts include:
- Child custody evaluators
- Financial planners to determine future economic circumstances
- Business evaluators to determine the monetary value of a businesses
- Real estate appraisers to value property such as homes or land
- Personal property appraiser to value furnishings and other assets (often this is an auctioneer experienced in selling home goods)
- Vocational evaluator to determine earning capacity
- Psychologists to testify to mental health issues
- Divorce Process: Settlement – A divorce or legal separation case may be resolved at any time the parties come to an agreement on the issues. In such cases, the parties would sign a Marital Settlement Agreement or some other form of stipulation resolving their issues. This can occur right up to the point of trial in court.
- Divorce Process: Settlement Conference/Pretrial – Settlement or pretrial conferences are scheduled by the court. In such conferences the court may require each party to submit a trial brief of the cases and issues. The judge may meet with the lawyers and/or parties to discuss the issues and to make settlement recommendations.
- Divorce Process: Trial – If the spouses are unable to settle the case, it will go to trial. At trial each party tells his or her story to the judge. It is told through testimony, the testimony of other witnesses, and documents called exhibits. At trial, the moving party (usually called the petitioner or plaintiff) presents his or her case first. He or she calls witnesses who are subject to cross-examination by the opposing party. When the plaintiff or Petitioner rests his or her case, the Respondent or Defendant presents his or her own case with witnesses and evidence, each subject to cross examination by the opposing party.