Filing your California divorce case: when and who should go first?

A critical issue that comes up in almost EVERY family law case is: when to file and who should file first.

For either a divorce or other family law case, my general feeling is that it is important to file as soon as possible. Every situation is different, and there are situations where it is a better idea to wait, but in general the best option is to file as soon as possible, or as soon as you realize you need to.

It doesn’t matter who files first, and when you file (whether it’s a divorce or paternity action), you will either be the Petitioner or the Respondent. It doesn’t matter at all which you are.

The key reason why it’s important to file as soon as you can are two-fold. First, once the Respondent is served with the paperwork you have filed, the Automatic Temporary Restraining Orders (ATROs) go into effect. They are located on the back of the Summons, and prevent either party from disposing of or acquiring property – separate property or community property -from leaving the State of California with your child (without the permission of the other party), and changing benefits or beneficiaries on accounts or insurance, like life, health, and car insurance and retirement, bank and stock accounts. The second important reason to file as soon as possible is to get the date of separation determined. I’ve already talked about the importance of the date of separation, so I won’t repeat myself. But nailing down that date is beneficial to everyone.

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How to file for divorce in California

In general, filing a family law case is fairly simple (legally-speaking. Emotionally? A totally different story). For a divorce or paternity case, the process is about the same. You need to file a Summons (different for each case), which basically just identifies you and your opponent and states that you are suing your opponent. With the Summons, you have to file a Petition (again, different for divorce and paternity), which is the ‘meat’ of the filing. The Petition specifies what’s going on and what you want, and defines the universe of options for your case.

For example, as I mentioned in an earlier post, if you want to be able to get spousal support at any time during your case, you MUST mark that box in your Petition. If you don’t, then it comes off the table completely. You need to file your Petition correctly, and there can be tricky elements, but for the most part it is fairly simple.

Finally, if you have children, you need to file the Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). This form sounds scarier than it is, as it’s simply where your child has lived for the last five years.

Of course, if you are asking for any orders, such as a custody or visitation order, child or spousal support, or anything else, you have to file other forms. But merely filing your case involves just these three forms: Summons, Petition, and UCCJEA.

Filing your California divorce case: when and who should go first?

A critical issue that comes up in almost EVERY family law case is: when to file and who should file first.

For either a divorce or other family law case, my general feeling is that it is important to file as soon as possible. Every situation is different, and there are situations where it is a better idea to wait, but in general the best option is to file as soon as possible, or as soon as you realize you need to.

It doesn’t matter who files first, and when you file (whether it’s a divorce or paternity action), you will either be the Petitioner or the Respondent. It doesn’t matter at all which you are.

The key reason why it’s important to file as soon as you can are two-fold. First, once the Respondent is served with the paperwork you have filed, the Automatic Temporary Restraining Orders (ATROs) go into effect. They are located on the back of the Summons, and prevent either party from disposing of or acquiring property – separate property or community property -from leaving the State of California with your child (without the permission of the other party), and changing benefits or beneficiaries on accounts or insurance, like life, health, and car insurance and retirement, bank and stock accounts. The second important reason to file as soon as possible is to get the date of separation determined. I’ve already talked about the importance of the date of separation, so I won’t repeat myself. But nailing down that date is beneficial to everyone.

How to file for California divorce

Filing for divorce in California is pretty simple – you just file a form with the clerk.  Nolo Press has a great book about how to file your California divorce that goes over the process.  After making the difficult and emotional decision (usually it’s emotional and difficult; there are exceptions), the actual filing can be a bit anticlimactic, if pricey.  All you need to do is fill out the Family Law Summons, Petition, and the Declaration Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which is a form you need only if you have children of the marriage.  All three forms are pretty straightforward, but they do need to be completed properly to ensure your rights are protected.

For example, the Family Law Petition outlines the basic issues in the case.  It isn’t a formal request for anything, but rather is a form that defines the universe of the issues in your case.  It is the Family Law RFO (Request for Order) or motion that gets you before the judge asking for the judge to make orders, not the Petition.  So if you mark on your Petition that you want your ex to pay your attorney fees, you won’t get those unless and until you also file a court motion, which is separate from the Petition.  Many of my clients come in to my office, upset that their ex has marked something on the Petition, when there’s nothing to get upset about.

Of course, once you have filed the documents, you need to serve them on your ex, which can be easy or difficult, depending on your situation.  Of course, you cannot serve the documents – they must be served by someone who is not you but is over 18 years of age.

And with that, your divorce is underway…

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A summer parenting plan: why the summer schedules can be more difficult than the holiday schedule

Aaaaah, summer.  It may seem far away now, but if you need to make a change, the time to start working on it is now.  The California family law court system works very slowly, so plan at least 3 months before you may need court assistance, if not more.  In Alameda County and Contra Costa County, courts are setting hearings out as much as 6-8 weeks.

Summer brings with it thoughts of sunshine, barbeques, vacations and…custody issues if you’re a family law attorney working with divorced parents.   Summer brings with it unique challenges for the separated couple that interrupt the schedule:

1. Vacations: a regular schedule can get way off track once a two-week vacation is scheduled.  Anticipating this in advance is critical to avoid last-minute problems.
2. Summer camps, sports camps, and musical camps: summer camps cause problems because it is often one parent who signs the child up, and invariably the camp is set for the other parent’s time. Again, this needs to be anticipated in advance to avoid problems.
3. Summer school: Like summer camps, summer school invariably messes up both parent’s schedules, and the parent signing the child up often does so without the permission or consultation of the other parent.
4. Child care challenges arising from the modified summer schedule: Summer schedules often vary from the school schedule to give the lower-time parent extra time.  Week-to-week schedules are not uncommon where the school schedule just provides for weekends for the lower-time parent.  This means that both parents have to adjust for the summer, which can be tricky when dealing with younger children (who need child care) and working parents not used to having a child home all the time.

The key here is ensuring that you work with someone who knows and can anticipate these problems ahead of time and provide for them in your parenting plan.  First, this means both of you have thought of the potential problem and talked out how you would deal with it.  Second, it provides for a solution in the event you can’t agree when the dispute arises.

Thinking about filing for divorce? What you need to do first:

Are you thinking of filing for divorce?  Had it with your spouse?  Before you pull the trigger, so to speak, and file for divorce, do some investigating and some collecting.  You’ll be glad you did.  Specifically:

1. Gather copies of financial documents, such as tax returns (at least the past three years), bank statements (go back several months to a year), investment accounts, and business records.  Print them out in case you lose access.
2. Keep the copies in a secure location away from your home.  Try a friend or relative’s home or your workplace.
3. Secure and possessions you’d be heartbroken to lose, especially anything breakable or very valuable. If your spouse “loses” your father’s antique watch, it’ll be up to you to prove it was your spouse’s fault.
4. Learn your rights.  Listening to your friends, relatives and neighbors about what happened in their divorce will not help you one little bit as each divorce is individual to the circumstances of the couple.  Consult with a licensed lawyer or Family Law Coach in your area, and don’t feel pressured to hire someone at this point.  Do some fact-finding.  Read some books on divorce in your area.
5. Learn your responsibilities.  Just as critical as rights, what you have to do as a member of a divorcing couple, and perhaps a parent, is as critical.  You don’t want to damage your children, your future, or your credit by not understanding what’s best for you to do.
6. Consider counseling, like now.  Divorce is so difficult that it’s considered one of the five major life events/traumas.  The legal process is not designed to help you through the emotional aspects, and it won’t.  It will likely make them worse.  Find a counselor, find a divorce support group, talk to your church, or discover some way to deal with the emotional aspects.
7. Learn the process.  Divorce, as I have mentioned before, takes far longer and is far more expensive then you ever anticipate.  If you’re not aware of this at the outset, then the delays, disappointments and cost can become quickly and repeatedly overwhelming.
8. Open your own bank account, without your spouse’s name on it.  Just before you file, if you have money in a savings account, consider transferring HALF of the money – just half – into that account.  Check with a lawyer in your area first, however, to make sure you don’t get in trouble later for doing this, as every state has different rules.

The more prepared you are in advance, the easier the process will be.  Divorce is so difficult that it’s well worth your time and effort to make it easier, because when you’re going through it, you’ll appreciate each and every break you can manage.  And you could end up like this couple, whose divorce “rehearsal” actually saved their marriage.

Filing your California divorce case: when and who should go first?

A critical issue that comes up in almost EVERY family law case is: when to file and who should file first.

For either a divorce or other family law case, my general feeling is that it is important to file as soon as possible. Every situation is different, and there are situations where it is a better idea to wait, but in general the best option is to file as soon as possible, or as soon as you realize you need to.

It doesn’t matter who files first, and when you file (whether it’s a divorce or paternity action), you will either be the Petitioner or the Respondent. It doesn’t matter at all which you are.

The key reason why it’s important to file as soon as you can are two-fold. First, once the Respondent is served with the paperwork you have filed, the Automatic Temporary Restraining Orders (ATROs) go into effect. They are located on the back of the Summons, and prevent either party from disposing of or acquiring property – separate property or community property -from leaving the State of California with your child (without the permission of the other party), and changing benefits or beneficiaries on accounts or insurance, like life, health, and car insurance and retirement, bank and stock accounts. The second important reason to file as soon as possible is to get the date of separation determined. I’ve already talked about the importance of the date of separation, so I won’t repeat myself. But nailing down that date is beneficial to everyone.

How to file for divorce in California

In general, filing a family law case is fairly simple. For a divorce or paternity case, the process is about the same. You need to file a Summons (different for each case), which basically just identifies you and your opponent and states that you are suing your opponent. With the Summons, you have to file a Petition (again, different for divorce and paternity), which is the ‘meat’ of the filing. The Petition specifies what’s going on and what you want, and defines the universe of options for your case.

For example, as I mentioned in an earlier post, if you want to be able to get spousal support at any time during your case, you MUST mark that box in your Petition. If you don’t, then it comes off the table completely. You need to file your Petition correctly, and there can be tricky elements, but for the most part it is fairly simple.

Finally, if you have children, you need to file the Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). This form sounds scarier than it is, as it’s simply where your child has lived for the last five years.

Of course, if you are asking for any orders, such as a custody or visitation order, child or spousal support, or anything else, you have to file other forms. But merely filing your case involves just these three forms: Summons, Petition, and UCCJEA.

Forms in California divorce: Navigating the document overload

Forms, forms, forms. The life of a family law litigant is filled with forms. The first thing you will file is your Summons and Petition, then every time you want something, you will have to file another form (or two or three). Completing your case involves even more forms.

The bad news? The forms are complicated, confusing, and far from user-friendly. One example is just the title. The title of the form, the name of it, is located at the bottom of it, which is probably the last place you’d look for a title.

More bad news? You MUST fill out your forms properly to (1) convey what you want, (2) get what you want, (3) have your documents accepted by the court (and not kicked back unfiled), and (4) complete your case properly.

The worst bad news? Filling out a form can be devastating to your case. For example, if you fail to make the box for “spousal support” on the Petition for divorce when you first file, then you can never ask for it. Ever. (OK so there are ways to amend your Petition, but this is not easy or common, and is far from guaranteed). So if you file and do not ask for spousal support, then your ex, three years later when you’re still fighting, wins the lottery just as you lose your job, you’re out of luck.

Redeeming news? There’s help out there, all over the place. You can even fill out the forms online here: CA Judicial Council Forms. Just be careful.

Think your divorce will take six months? Think again

It is a common misconception that divorce in California takes six months.  The reality is that California has a waiting period of six months, which means that the earliest time that you can be divorced is six months and one day from the day you or your spouse is served with the divorce Petition.  The divorce process, however, bears no relationship to this timeline, and though some divorces can resolve before this, most divorces take much longer to settle.

The delay is caused by many factors. First, the courts in California are severely under funded, so the existing judges are doing the work of far more personnel, and the court staff is woefully lacking as well.  This means that the lead time to get in to see the judge for a hearing is much longer – 6-8 weeks if not more – and then follow-up hearings are also pushed out. It can take four months alone to have a temporary and review hearing on a common issue such as support or custody/visitation.

Second, the delay in the court hearings often inadvertently delays the resolution of the rest of the case.  Often what happens with the property depends on what happens with the children or support, so the parties are waiting for some kind of preliminary resolution on these issues before working on the property.  Financial reasons, too, can delay the process when one party needs an attorney’s help – or money for filing fees or mediation fees – but just can’t afford it.

Mediation and other out-of-court options can speed up the process significantly as well as keep costs down, but too many couples are unwilling to try mediation, or else they don’t know enough about the benefits.  In any event, the lengthy process of divorce is unlikely to speed up any time soon.

Need more help?  Click here for our FREE Divorce e-Course.