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In California, a divorce is called a dissolution of marriage proceeding. A dissolution of marriage proceeding is commenced by the filing party who will be referred to as the "Petitioner", and the responding or answering party will be referred to as the "Respondent" through all aspects of the proceedings.
A dissolution of marriage proceeding is commenced by the filing of a Petition for Dissolution of Marriage. The divorce proceeding will encompass a resolution of all issues related to the termination and ending of a marriage. Child custody, child visitation, child support, spousal support or alimony, asset valuation issues, property division, division of assets, division of debts, rights of reimbursement, credit issues, restraining orders and all other related issues regarding the marriage will be formally resolved. The final order resolving the marital issues will generally be called a Judgment of Dissolution of Marriage.
At any time during the divorce process, a case may settle in full or in part, or a case may proceed on to a hearing and/or trial on some or all of the marital issues. Whether a case settles or goes to trial is by and large a product of the complexity of the issues in the case, and the reasonableness of the parties in attempting to achieve compromise and settlement. These same concepts determine how long a case may last and, needless to say, how expensive a case may become.
HOW LONG DOES A DIVORCE TAKE?
It takes a minimum of six months and a day from the date that the Petition for Dissolution of Marriage is served on the Respondent for a party to be entitled to terminate his or her marital status. While some cases may actually be completed before six months has elapsed, the marital status cannot terminate until six months and a day has arrived. Accordingly, a Judgment of Dissolution of Marriage can be filed and entered, but the marital status cannot terminate until the magic six months and day is achieved. More often than not, a case is not completed within six months. If such is the case, upon proper application to the Court, a case may be "bifurcated" such that marital status may terminate on or after the six month and a day mark, however, the balance of the case will remain active and continue on through the court system until all issues are resolved. The complexity and number of issues involved, together with the reasonableness of the parties will often determine how long the case will otherwise last.
COMMENCING A DIVORCE
Once the divorce petition is filed and served, the party upon whom the documents are served has thirty (30) days to file a response. The response must be formally filed with the issuing Superior Court and served by mail on the moving party. If a response is not filed and served on the moving party within thirty days, the petitioning party may proceed to take the non-responding party's default, at which time the court may allow the moving party to proceed without any appearance or input from the defaulting party. The general effect of taking the non-responding party's default is that the filing party will receive the relief requested in their Petition and moving pleadings, according to proof, as is consistent with the law - with no input from the other side of the case.
WHAT HAPPENS AFTER THE PETITION IS SERVED?
If a response is timely filed and served, discovery proceedings may be commenced (depositions, interrogatories, subpoenas, investigation of assets and debts, etc.), motions may be filed, settlement negotiations may be commenced and trial preparations may commence. At this juncture the case is generally considered to be contested.
Interim hearings (Order To Show Cause hearings) or emergency hearings ("ex parte") may be scheduled to achieve emergency and/or temporary orders pending settlement, further hearing or trial regarding child custody issues, visitation issues, child and spousal support issues, residential use issues, use of assets, attorney fees requests, requests for appointments of financial experts and forensics, requests for appointments of child custody experts or other mental health experts to assist the court in making child custody determinations, requests for limited or full child custody investigations through mediation and investigative authorities, requests for appointment of counsel for minor children, requests for restraining orders and other interim issues and considerations. The general idea is to achieve "interim" or "pendent lite" or "temporary" orders pending trial, to keep the peace and define each party's rights pending trial or further hearing in the matter. At trial, "permanent" orders are made resolving these issues. As a general rule, absent emergency or unusual considerations, the court will generally not divide assets or allocate debts pending trial.
At the trial level, the Court will determine issues as to the characterization of property (what is community property and what is separate property), the court will award community property, the court will confirm separate property, the court will resolve other community property and separate property issues, the court will resolve property division issues, the court will resolve value issues regarding assets, the court will resolve accounting and commingling issues, the court will determine cash flow issues from business or self employed parties to determine support issues, the court will determine business valuation issues, and the court will determine reimbursement and credit issues, together with attorney fee, cost and an entire host of other family law related issues. Finally, the court will generally make "final" orders regarding child custody, visitation, child support, and spousal support issues.
At any stage during the proceedings, settlement may be entertained or achieved in whole or in part, allowing portions of the case to be resolved with the balance of issues proceeding to trial. A case may resolve by way of marital settlement agreement, or stipulated judgments or orders. All or part of a case may proceed to trial, despite the fact that some or most of a case has been resolved.
MODIFYING EXISTING ORDERS
As a general rule, attempts to change or "modify" a temporary order or an interim order (orders pending trial) are the subject of an Order to Show Cause for Modification, which carry substantial complex considerations, legal consequences, and complex burdens of proof. Attempts to modify a court's orders after entry of judgment are, also, called Order to Show Cause for Modification and generally are brought to attempt to achieve a modification of existing child custody, child visitation, child support, spousal support orders, or to address "move away" cases, and are also the subject of substantial complex considerations, legal consequences and complex burdens of proof. Generally, after entry of judgment of dissolution of marriage, the division of assets and debts is not usually modifiable. The division of assets and debts is generally intended to be a permanent consequence, unless otherwise stated.