A common reason that people file for divorce is if their spouse had cheated on them. California is a no-fault state, meaning that it would be irrelevant in the divorce if somebody cheated or had an affair. If one spouse was working all the time and making all of the money, while the other spouse was the stay-at-home spouse, then it would not matter if the stay-at-home spouse cheated while the other one was working.
The community property that was built up during the marriage would still be part of the community property that would need to be divided up at the divorce. Before getting married, people can enter into prenuptial agreements which could control where the property went in case of a divorce, however most people do not have prenuptial agreements.
Do You Encourage People To Go To Counseling Or Work Things Out On Their Own?
I always ask the client if they think they would be getting back together, because it is not uncommon to see people getting back together after going through a heated legal battle and spending money on lawyers and court fees. I try to see if they actually want to get back together or go to counseling, and I always bring it up, although they are generally ready to do something by the time they do call a lawyer.
I try to find out what they want to do, so if it is a divorce, then they will get a divorce, if it is a paternity case, then they would need to file for paternity. The mother would also be able to file for paternity and become a petitioner to get custody orders, just like the father would be able to.
How Can Somebody Start The Process Of A Divorce?
The first thing to do would be to file a petition and a summons with the court, which would then need to be served upon the other party by an adult, meaning someone who was 18-years or older. The served party would be given 30 days in which to respond to it, but if they did not respond, then there would be a process to take the person into default. This is because they cannot just leave the case hanging around doing nothing, because at least one party would want something done.
The default process would involve filing some forms that would be submitted to the court, and it would be a very simple process if the other side did not contest it.
A few things would need to be done if the other side did respond. The parties would firstly need to consider whether or not they needed a temporary court date to get custody orders, child support, spousal support and those few issues resolved. California calls it spousal support, not alimony. The parties would file for spousal support which would be based on factors of the California Family Code 4320.
Some factors that would need to be considered would be the age and health of the parties, the status of the employed spouse and the marital standard of living. The court would look at these factors for temporary support orders at the temporary hearing date, but not as closely as they would be looked at, at the actual trial date that would come further down the road.
When a petition is usually started in California, a “Request for Order,” would need to be filed, which used to be called, “An Order To Show Cause.” After filing that, the person would need to come into the court within a month or two, at whatever date the court gave to get issues like child support addressed.
The court would generally not address issues regarding the house or the sale of the house at a Request For Order hearing, however the judge would have to do something with the house at a trial date if the parties wanted to sell their house or if they had agreed on what they wanted to do with the house, although the judge would generally order that the house be sold.
Why Would A Discovery Have To Be Done?
Discovery is another part of the divorce process that needs to be looked into. One spouse would have the right to know if the other spouse had certain assets or if they had more access to business or something along those lines. They would have to conduct some discovery, which is what an attorney can generally do for one of the parties by asking the other side legal questions regarding what property and assets they had and how much money they made so it could be calculated in an analysis for the entire case. That information would then be available when it came down to the trial.
The trial would be a lot more difficult if they did not conduct the discovery, because the court would not have all of the answers and the judge would ask for the discovery to be done at that time, so it can cause a lot of problems if the discovery is not conducted at the right time.
The discovery would be done after a case to case analysis, and it would sometimes not be needed for smaller cases where the parties did not have a lot of assets and where there was not a whole lot going on. Sometimes they can just send out “Form Interrogatories,” which in layperson's terms are just questions that are handed over to the other side.
The parties generally do not like having somebody looking into their financial matters, although unfortunately, the parties will have their incomes and expenses taken a look into in a divorce dissolution. The husband would have the right to look into the wife's expenses and the wife would have the right to look into the husband's expenses because it would all be part of the community property laws of California. Both sides would generally find it uncomfortable because the other side would want to look into how much money they were making.
What Would Happen If Someone Did Not Disclose All Of Their Assets?
Both sides would have a right to know, so the court would be able to punish or sanction the party that failed to disclose property, and those sanctions can be quite stiff. In an older case, one of the spouses did not disclose lottery winnings, so the other spouse went back to court at some later time and was awarded the entire lottery winnings to punish them for not disclosing that information, which is just a general glimpse of the divorce process.
What Is The Purpose Of The RFO?
The Request For Orders (RFO), helps the parties get in the court and it can also be filed after filing the petition and summons. The purpose of the RFO would be to get into court quickly to work out child custody, child support and spousal support. The judge could make a ruling on those issues within a couple of months, while the parties figured out what they wanted to do with the entire case.
The two parties would figure out how they wanted to divide their property, whether they were going to sell their house, if they could figure out what they wanted to do with the child custody, child support or spousal support issues, also known as alimony, although California calls it spousal support. All of this would be up to the parties.
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