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The Step-by-Step Divorce Process

Protecting Your Property in a High Asset Divorce

STEP 1:

Filing Initial Divorce Petition

The Petition is the first form filed with the court clerk. Filing of the Petition commences the dissolution proceedings. In the Petition, you will notify the court if you are asking for spousal support, child support, attorney’s fees, and other orders. The Petition tells the court all pertinent facts about the marriage and what you are requesting moving forward. The Petition includes information such as:

  • Date of Marriage
  • Date of Separation
  • Information regarding minor children including custody and support thereof
  • Information regarding separate property and debts
  • Information regarding community property and debts
  • Information regarding spousal support

STEP 2:

Summons

The summons is issued by the court clerk and orders the opposing party to file a response within  30 days of service of the initial Petition and paperwork. When the summons is issued, an automatic restraining order is placed on both parties. Absent a court order or written consent from the opposing party, the automatic restraining order prevents the parties from:

  • Removing children under 18 from the state
  • Applying for or replacing passports for children under 18
  • Cashing, borrowing against, cancelling, transferring, disposing of, or changing the beneficiaries of any insurance, or other coverage, including life, health, automobile, and disability, held for the benefit of the parties and their minor children
  • Transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community or separate, without the written consent of the other party or a court order, unless in the usual course of business or for necessities of life
  • Creating or modifying a non-probate transfer in a manner that affect the disposition of the property subject to the transfer, without the written consent of the other party or a court order. Notice of change must be filed with the court and served on the opposing party before revocation of a non-probate transfer can take effect or a right of survivorship can be eliminated
  • If extraordinary expenditures must be made after the restraining order goes into effect, the expending party must notify the other party at least five business days prior to the expenditure.
  • Community property, quasi-community property, and separate property may all be used to pay court costs and attorney fees in the divorce action.

If you are served with a summons and concerned about the automatic restraining order, it is best to contact an attorney. An attorney can negotiate stipulations with the opposing party allowing for necessary purchases or sales which might otherwise violate the automatic restraining order.

STEP 3:

Filing a UCCJEA Declaration (if you have children)

UCCJEA stands for Uniform Child Custody Jurisdiction and Enforcement Act. If you have minor children with the other party, you must file a UCCJEA Declaration. This Declaration provides the court with information about each child. The form includes information such as the child’s name, sex, date of birth, and place or birth.  The UCCJEA Declaration also requires you provide information on any known related cases such as family, guardianship, adoption, juvenile or domestic violence cases. This information helps the court determine issues of custody and visitation.

STEPS 1-3:

Accompanying Blank Response Forms

All of the forms in steps 1-3 must be served to the opposing party with accompanying blank response forms. Form FL-120 is the response to the initial Divorce Petition, and a blank FL-105 must be provided as well for the opposing party to fill out.

STEP 4:

Preliminary Financial Disclosures (California Family Code 2140)

Within 60 days of filing the initial Divorce Petition, the filing party must serve Preliminary Financial Disclosures. The responding party must also file Preliminary Financial Disclosures within 60 days of filing his or her response to the initial Divorce Petition. These disclosures are served only to the opposing party and not filed with the court. However, a declaration regarding service of the documents on the other party must be filed with the court (Form FL-141).

Preliminary Financial Disclosures:

The Income & Expense Declaration is extremely important in dissolution proceedings. As suggested by the title, this form is where you initially discuss and disclose your income and expenses. This form includes information such as:

  • Current or most recent employment
  • Educational background
  • Sources of income
  • Average income from each source over the past 12 months
  • Funds currently in your bank accounts
  • Property values
  • Monthly expenses

It is important to note that this is a preliminary declaration. You will almost certainly need to corroborate your claims with supporting documents such as bank statements, pay stubs, tax returns, W-2s, 1099s, etc. It is important to be accurate as possible to avoid issues later in the case with you Income & Expense Declaration not reflecting your other documents.

Additional funds or deposits reflected in your account are non-income gifts or other separate property, it will need to be proven as such. If that is the case, it would be prudent to start gathering evidence or testimony to prove the source of those funds.

Lastly, when listing your monthly expenses, it is just as important to be accurate. It is perfectly okay to make a best estimate if you are unsure, but do not check the Actual Expenses box if you are estimating.

The court uses this form to determine child support and spousal support. Any misrepresentations will not only make you appear untrustworthy to the court, but may lead to monetary sanctions as these documents are signed under penalty of perjury.

OR

Schedule of Assets and Debts

Form (FL-142)  http://www.courts.ca.gov/documents/fl142.pdf

You must also serve to the opposing party either a FL-160 or a FL-142. They both contain 24 fields. Fields 1-18 require you to list all assets including:

  • Real estate
  • Household furnishings
  • Jewelry, antiques, art, coin collections, etc
  • Vehicles, boats, trailers
  • Savings accounts
  • Checking accounts
  • Other deposit accounts
  • Cash
  • Tax refunds
  • Life insurance value
  • Stocks, bonds, secured notes, mutual funds
  • Retirement and pensions
  • Profit-sharing, annuities, IRAs, deferred compensation
  • Accounts receivable and unsecured notes
  • Partnerships and business interests
  • Other assets and total assets

Fields 19-24 require you to list all debts including:

  • Student loans
  • Taxes
  • Support arrearages
  • Loans  unsecured
  • Credit cards
  • Other debts and total debts

Additional requirements for Preliminary Disclosures

  • Two years of tax returns
  • Statement of material facts and information regarding valuation of all assets that are community property or in which the community has an interest
  • Statement of all material facts and information regarding obligations for which the community is liable
  • An accurate and complete written disclosure of any investment opportunities, or other income-producing opportunity presented since the date of separation that results from any investment, significant business, or other income-producing opportunity from the date of marriage to the date of separation.

STEP 5:

Discovery

Each party has the right to seek further information from the other party. Generally, discovery responses must be delivered to the propounding party within 30 days of service.

Other common discovery devices that do not use forms are:

  • Requests for Production of Documents
  • Special Interrogatories
  • Depositions
  • Notice to Appear and Produce Documents (CCP 1987)

STEP 6:

Mediation and Mandatory Settlement Conference (MSC)

If mediation is unsuccessful and you choose to proceed to trial, the next step is to schedule a Case Management Conference. At the Case Management Conference, the court will set a MSC date and Trial date.

At least five days prior to the MSC, both parties will lodge with the court and serve on the other party:

  • MSC Statement (lists the contested issues and proposals to resolve said issues)
  • Current Income & Expense Declaration (FL-150), and
  • Current Dissomaster printout if child support and/or spousal support are at issue

STEP 7:

Final Disclosures

At least 45 days before your trial date, you must exchange a Final Declaration of Disclosure.

STEP 8:

Default Judgment

If the opposing party fails to respond to your initial Divorce Petition within 30 days of service, you can file for a default judgment. This requires that you file the following forms:

Additional spousal support forms:

Additional child custody forms:

  • Child Custody and Visitation Order Attachment

Form (FL-341)  http://www.courts.ca.gov/documents/fl341.pdf

Additional child support forms:

Additional property division forms:

Depending on your unique situation, there may be additional forms you must file. If in doubt, contact an attorney.

STEP 9:

Marital Settlement Agreement (MSA)

If both parties are in agreement regarding the issues, the parties may enter into a MSA. The MSA should be drafted by an attorney familiar with your factual situation and the desires of the parties.

STEP 10:

Judgment

If your case goes to trial, the judgment handed down by the court will be your guide to your divorce. You must follow the terms of the judgment or risk being held in contempt of court. Thus, when agreeing to the judgment it is important to thoroughly understand your obligations. If in doubt, contact an attorney.

Due to the highly varied fact patterns that emerge in family law and divorces, it is impossible to create an exhaustive list of all forms and procedures one might need to be aware of. This list is meant for informational purposes only. Seeking guidance from legal counsel is always preferable.

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Kaspar & Lugay, LLP is a family law firm with offices in Corte Madera, CA; Napa, CA; Walnut Creek, CA; and San Diego, CA. We also represent clients in San Francisco, Oakland, Sacramento, Pismo Beach, Contra Costa County, and Los Angeles. Call us at 415-789-5881.