One of the most common questions we get from people recently beginning a family law case is “what can I expect from this process?”
Frankly, there is no “one-size fits all” answer. The facts and circumstances of your family, your relationship, your assets and debts, will all impact the way your specific legal matter moves forward.
However, to help you better understand the legal process, we’ve created a glossary and California legal proceedings guide. e key legal terms, phrases, and processes that you may encounter while navigating your family law case.
Legal Proceedings In California
How does a divorce proceedings work?
First, a divorce case can only start when one party files a petition. Once the petition is filed, the other person must be served.
The responding party has a set amount of time to provide and file a response to the petition.
The Responding Party has two choices:
Choice A: not to file a response. In this case, the matter proceeds as a ‘default’.
Choice B: file a response.
Following this decision, each case unfolds very differently.
You may have a case where a judge never becomes involved. Parties may choose to work together through mediation or collaborative law to reach an amicable settlement, and never appear before a judge.
Your case may require one or multiple appearances before your judge. If parties are at an impasse, or if either party believes there is no ability to work together, or if there is an emergency situation, then either one or both parties may file a motion(s) with the court. Filing a motion formally ‘raises the issue’ and brings it before the judge.
Court involvement is a common source of confusion or stress for clients. Motions can be as broad or as narrow as the situation calls for.
Example, you could file a motion regarding only the issue of visitation OR you could file a motion for custody, visitation, child support, spousal support, and use and possession of the marital home. Motions do not follow a strict formula in terms of how and when they are filed with the court. The trigger to file one is a breakdown in communication or settlement conversations that elevates the conflict to a point where it requires the input of a judge.
One thing to be aware of: not all lawyers view dispute resolution the same way. There are lawyers whose personal practice is to jump straight to the preparation and submission of a motion. There are also lawyers who will never work on a disputed case. There are lawyers at every point in between.
At Gomez Edwards Law Group, we believe every case presents the possibility of the parties reaching a resolution outside of court. We want parties to be empowered to work together to find creative solutions that are the best fit for them and their families. We never force clients into litigation and we make every effort to explore collaborative and alternative resolutions before pursuing litigation. We also recognize that once on a litigation path, there are still opportunities to decrease tension and transition back to alternative resolution pathways. Our personal philosophy is to never lock the door to a resolution. We take our obligation to meet and confer seriously and prefer to empower our clients to make the decisions that are best for themselves, rather than prioritizing a judge imposing an order on our clients and their families.
How does a divorce case end?
Once all issues are resolved, this can include property and debt division, child or spousal support, custody and visitation, then the parties are able to submit their judgment to the court. Once signed by the judge and filed with the court, your divorce is finalized and you return to being single.
Now that we’ve addressed the basic outline of a divorce proceeding, we want to provide you with definitions of legal terms you are likely to encounter during your family law case.
Petition: The Petition is the legal document that initiates a court case. Regardless of your specific type of case, or the path your case takes, every family law case requires someone to start the process by filing a Petition. There are many types of petitions in family law cases:
- Petition for Dissolution of Marriage/Domestic Partnership: this is the legal title used for what is commonly known as a divorce case.
- Petition for Legal Separation: this allows parties to terminate their financial relationship, divide assets, and cease being financially responsible for each other, without terminating their marital status. Many people prefer legal separation if they are of a religious belief that does not support divorce, or if they need to preserve health insurance for one spouse.
- Petition for Nullity: This is commonly referred to as an “annulment” case. These petitions may be used in very limited circumstances. When your marriage is annulled, it is treated as though it never existed. A marriage can be annulled because it is void (was never valid, because of bigamy or incest), or voidable (it is found to be invalid because one spouse committed fraud against the other at the time of marriage). These cases are very tricky and specific and it is important to consult with an attorney before pursuing one.
- Petition to Establish Parental Relationship: This type of case can be used in many circumstances but it is mandatory that the parents are not married. It can be used when unmarried parents separate, or even if unmarried parents remain together, but want a court judgment confirming the birth father is the legal father of the child.
Petitioner: The person who initiates a family law action (files a Petition).
Response: This is exactly as the name describes—this is the legal document filed in response to the Petition.
Respondent: The person who responds to a Petition.
Summons: This is a critically important legal document. It has tremendous importance in all legal cases. It is the document that “summons the Respondent to court’. A valid summons will include a court number and a stamp of a court clerk, confirming the existence of an active legal case and providing important details to the responding party.
ATROs: In a divorce action, it is highly likely that you will hear “ATROs” used quite a bit. This is an acronym that stands for “Automatic Temporary Restraining Order”. An ATROs is a restraining order that prevents spouses from causing any financial harm to the other spouse. Spouses going through a divorce proceeding cannot sell real property or offload stocks without the consent of the other spouse. Spouses cannot take actions to hide funds, withdraw from retirement, or engage in any action that would minimize the assets the other spouse might receive. Spouses have fiduciary obligations to each other, meaning that when managing assets, they must engage fairly, honestly, and with the other spouse’s best interests in mind. The existence of the ATROs is to ensure that both spouses continue to treat each other fairly and honestly even while going through a divorce.
APJ: An APJ is an acronym for “All Purpose Judge”. An APJ is a judge that has broad authority over the issues in a family law matter. Think of this as: “this is your judge for all purposes.”
Commissioner: A commissioner is a type of judicial officer. This is different from an APJ who has broad authority to hear legal issues. Rather, a commissioner’s authority is limited. Most often in family court cases, a commissioner may be a temporary judge over a limited issue or a sitting on the bench but hearing only child support cases.
RFO: Request for Order, or RFO, is what California has named its family law motions. In many counties, simply filing a Petition will never bring you before your judge. Some counties do automatically schedule review hearings, but in order to present evidence on an issue and have a judge make a ruling, you must properly bring it before the court by filing a motion and serving the other party with it.
Declaration: A declaration may be used in many circumstances, but in all of them, a declaration is a written statement submitted by a party, attorney, or witness, signed under penalty of perjury that the contents are true. A declaration is a form of written testimony that will provide notice to the responding party of what the allegations are thus giving them the ability to prepare to respond.
Ex Parte motion: An ex parte motion is a motion that is filed due to emergency reasons. An emergency can be concerns of child abuse, or the risk of imminent loss of property without immediate court invovlement. Some ex parte motions are submitted without notice to the other party, such as a request for a restraining order (a scenario where notice to the other party presents a risk of danger or other harm). Some ex parte motions require notice to the other party so that they may have an opportunity to respond to the motion before the court reviews it.
Ex parte communication: A communication is ex parte when either a party or attorney attempts to communicate with a judge—or his court clerk—without including the other side. Ex parte communications are absolutely not allowed. An example of an ex parte communication is mailing a letter to the judge, or staying after a hearing and attempting to speak to the judge after the other party leaves.
Court hearings: There are many types of hearings. Knowing what type of hearing you are going to have can help you feel more at ease with the legal process.
- Law and Motion: This is typically the first hearing you will have in court following filing a motion. Most judges keep these hearings to 10-20 minutes long. Judges want to know what is needed to resolve the issues raised by the motion. Perhaps there’s a way to settle the issue, or perhaps an extended trial is required. There are issues that can be resolved in a 15-20 minute hearing, but the vast majority of issues cannot be resolved this quickly. Judges will use this hearing to gain a sense of the dispute, how far apart the parties are, and how long the parties need to present their case.
- Evidentiary Hearing: Evidentiary hearings are what people think of as “trials.” Parties are sworn, testimony is given, and evidence is presented to the court with the goal of presenting the facts of the dispute in order to receive their desired court order.
- Status Conference: Some cases have a tremendous number of status conferences. For heavily litigated matters, status conferences are a power tool judges have to monitor the progress of a case. Status conferences are a chance for the judge to receive an update on parties’ compliance with court orders as they progress by trial.
- Review Hearing: A review hearing is similar to a status conference with one major difference: if the judge isn’t seeing what they want to see during the review, the judge has the authority to modify and issue new orders. For example: a high conflict custody case may have periodic 3 month reviews for the court to check on a parent’s progress with drug testing, or parenting classes. As the judge sees satisfactory progress, the court may find it is appropriate to increase that parent’s timeshare.
Mediation: Mediation is a process wherein parties utilize a neutral party to help them reach an agreement on any outstanding disputes. This can be used for disagreements over parenting plans, support calculations, or asset and debt division.
Legal Custody: Legal custody indicates which parent(s) has the right and the responsibility to make the decisions relating to the health, education, and welfare of a child. Legal custody may be sole with one parent, or joint and shared between both parents.
Physical Custody: If one parent has sole physical custody, the child will live only with that parent, and the other parent may be entitled to a visitation schedule. If parents share joint physical custody, then both parents shall have significant periods of responsibility for the child.
Timeshare: Timeshare is in reference to the actual visitation schedule. This will be different for every family and should be reflective of the needs to the child in the case. Needs of children change as they age. Other factors that will impact the visitation schedule is how far apart the parents live from each other. Some examples of schedules may be:
- Week on week off
- Alternating weekends
- 1st/3rd or 2nd/4th weekends
The most important thing about the timeshare schedule is that it meets the needs and supports the wellbeing of the children.
Child Support: In California, child support is dictated by the California family code, which contains a very specific calculation for child support. Child support based upon this calculation is called “guideline support.” The court is authorized to decrease a support order below the guideline calculation if the paying party can establish that they are under financial hardship.
DCSS: This is the Department of Child Support Services. It is possible to open your child support case through DCSS, and they will be present at the hearing and represent the interest of the county at the court hearing.
PDDs: In order to be divorced, parties must exchange disclosures of assets and debts. The purpose of the disclosure process is to ensure that marital property is divided equally. This allows the parties to account for what property they have individually and jointly and its value. Proper and complete disclosures help ensure the finality of the judgment and protect against the possibility of a judgment set-aside should it later be determined that one spouse hid property from the other or committed any other sort of fraud.
- Discovery: Discovery is the process of seeking information from the other side. Discovery is a time-consuming and nuanced process that includes very strict rules and deadlines. If you are facing discovery issues it is important to consult with an attorney to make sure you do not open yourself to harmful sanctions including a potential loss of an ability to present your evidence to the court.
- Request for production of documents: This process is used if you want to gain access to the other person’s records. You may request bank statements, business records, employment records, phone records, emails. Any sort of document, video, or photograph may be requested. “Documents” truly means anything tangible.
- Form interrogatories: this is a list of questions that require written answers. Think of this as a written interrogation. Questions can include
– Who lives with you?
– Have you received support from any third parties?
– List all of your dependents.
– What legal agreements, if any, have you entered into with the other party?
- Request for Admissions: This is the process of presenting statements which you ask the other person to admit or deny. Any statement which is admitted does not require additional evidence at trial. Requests for admissions are a way of narrowing the disagreements and size of a trial. Examples of requests for admissions include:
– You did not notify your spouse before you withdrew $10,000 from your community property retirement account.
– You received rental income which you did not disclose to your spouse.
– You were found guilty of a DUI in 2017.
Dependency Court: Dependency court is a type of juvenile court. Dependency court is different from family court in that the court has the ability to remove the children from their family and place them in foster care. Dependency court is involved where there is a seriousrisk of child abuse or danger, often involving parents with substance addictionor emotional regulation concerns. These families are in Dependency because Child Protection Services (CPS) or a family court judge has identified that the risk to the child is so great as to warrant heavy court involvement. The ultimate goal of dependency court is reunification, but if it appears that will not be possible, to find the child a safe, loving, and stable home.
Guardianship: Guardianship cases are different from family law matters in that the person providing care to a child is not the legal parent, and the parental rights of the legal parent have not been terminated. Guardianship cases are different from dependency cases because it is not a government agency that brings a case to dependency. Guardianship cases are filed by grandparents, aunts, uncles, or close family friends requesting that the guardian be given legal authority to manage the care and/or finances of the minor child. These individuals have the same responsibilities and legal rights as a parent, but if the parent is later able to return to provide safety and stability for the child, the guardianship can be terminated and responsibilities returned to the legal parent.
Legal Disclaimer: The materials contained on this website have been prepared by Gomez Edwards Law Group, LLP, and are intended for informational purposes only. This website contains general information on legal issues and is not a substitute for legal advice from a qualified attorney licensed in the appropriate jurisdiction. While we attempt to maintain information on this website as accurately as possible, the materials and information may contain errors or omissions, and may be out-of-date, for which we disclaim liability. Gomez Edwards Law Group, LLP expressly disclaims all liability with respect to actions taken or not taken based on any or all of the contents of this website. The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.