Overview of the Court Process in a Divorce
Dear Clients and Friends,
Persons looking to commence or respond to a divorce filing need information about the Process.
The best option is to retain an experienced attorney that you can have a good rapport with. We routinely hear from clients how stress reducing it is to have this relationship during these trying times.
Alternatively, one can seek to do it on their own, and when for financial reasons that becomes their course of action I have provided below a page from the California Courts web site outlining the divorce process in California.
However one chooses to work through a marriage dissolution process we continue to be available for a free initial phone evaluation regarding a parties family law concerns.
Please also ask us about our “hybrid” representation for those needing to go it alone while still needing questions answered, documents prepared and the like.
Overview of the Court Process
In general, this is the court process for a divorce, legal separation, or annulment of a marriage, or domestic partnership (Or click to see information on Legal Steps for a Divorce or Legal Separation (FL-107-INFO) with links for detailed information on each step):
1. The person starting the court case (the petitioner) figures out:
How do I want to end my marriage or domestic partnership? Divorce, legal separation, annulment?
If I want a divorce, do we qualify for a summary dissolution?
If I want a divorce, can I file it in California? What county or counties can it be filed in?
How much money will it cost to file the forms, and how can I pay the fees? Can I ask the judge to order the other side to help me pay for a lawyer?
Are there any special procedures that apply in the local court in my county? Are there any required local forms I should be aware of? How many copies of my papers will I have to turn in?
2. If appropriate, the petitioner can talk to his or her spouse or domestic partner (the respondent) to see if they can work out an agreement about the terms of the divorce or legal separation.
If they can work out an agreement, they may be able to save on filing fees (maybe only the petitioner needs to file papers in court) and save a lot of time by avoiding having to go to court a lot.
They can get help working out their disagreements from a mediator.
These conversations and attempts to work out the terms of the divorce can happen throughout the case. Even if a couple cannot reach an agreement early on, it is possible they will be able to as the case moves along. So do not give up trying to work out an agreement, either on the whole case or at least some parts of it.
DO NOT try this if you are a victim of domestic violence and are concerned about your safety. Talk to a lawyer or domestic violence counselor first if this is your situation. Click for more information about domestic violence.
3. The petitioner gets and completes all the required forms (including any local forms he or she may need).
The forms can be found on this website, at most courthouses, and in public or county law libraries.
Click for information on working with court forms.
4. The petitioner files his or her court forms.
“Filing the forms” means taking the forms to the courthouse and giving them to a court clerk. The clerk will put the original forms in a file that starts the court case, then stamp the photocopies “Filed,” and return them to the person doing the filing.
There is a filing fee to file court forms. Find out how much the court fee is for filing a divorce petition. If you cannot afford the fees, you can apply for a fee waiver.
5. A person at least 18 who is not involved in the case gives the other spouse or partner (the respondent) copies of the court forms.
When a lawsuit is filed, the person being sued (the respondent) has a right to be told about it. This needs to be done in time for the respondent to go to court and tell the judge his or her side of the story before the judge makes a decision. This is called “service of process” and is very important.
The person who serves copies of the court forms on the respondent fills out a form called a “proof of service” to show that he or she has given the correct forms to the respondent in the right way.
The petitioner files the proof of service form with the court clerk.
The petitioner is NOT done. There are more steps after the respondent’s time to file a response runs out. Without these additional steps, the divorce will NOT be final.
6. The respondent decides how he or she wants to handle the case.
The respondent will decide if he or she wants to file a response with the court. If he or she does not, the judge can make a decision ending the marriage or dissolving the registered domestic partnership without hearing the respondent’s side of the story.
He or she can try to work out an agreement with the petitioner about the terms of the divorce. If there is domestic violence in the relationship, read the domestic violence section to make sure you are safe while you go through the court process.
7. If the respondent chooses to file a response, he or she gets the forms he or she needs, fills them out, and files them with the court clerk.
The respondent files his or her court forms within 30 days of being served with the petitioner’s paperwork.
The respondent files the papers at court and will have to pay a filing fee. Find out how much the court fee is for responding to the divorce petition. If you cannot afford the fees, you can apply for a fee waiver.
8. A person over 18 who is not involved in the case gives (serves) the petitioner a copy of the respondent’s court forms.
The person who serves copies of the court forms on the petitioner fills out a form called a “proof of service” to show that he or she has given the correct forms to the petitioner in the right way.
The respondent files the proof of service form with the court clerk.
9. The parties will exchange financial documents that show what they own and owe. This process is called “preliminary declaration of disclosure.”
The declaration of disclosure will help both parties to come up with a fair way to divide their property and debt.
10. To let a couple become divorced or legally separated, the court must approve and sign a judgment. The process of obtaining a judgment will depend on whether the respondent files a response and whether the spouses or domestic partners can reach an agreement about the terms of the divorce or legal separation. The terms of the divorce become a part of the judgment.
You cannot legally end your marital status until at least 6 months after the case is filed and the respondent has been served with a copy of the petitioner’s paperwork. AND the divorce will not become final on its own. One or both sides will have to file more papers before that happens. Make sure you follow all the necessary steps to make sure you finish your divorce.
In general, if the couple can reach an agreement about all their issues, they may not need to go to in front of a judge. If they cannot reach an agreement, they will have to go to court to handle the issues that they cannot work out themselves.
During the process of divorce, either side may want to ask the court for orders about child custody and visitation (parenting time), child support, spousal or partner support, or other types of orders. Click to find out more about requests for orders during your divorce or legal separation.
IMPORTANT! Divorce or legal separation can be a complicated process, especially if you have children together or a lot of property or debt. It is often a good idea to talk to a lawyer before you start the court process, to make sure you know what to do when and are prepared.