| When you hire a divorce lawyer, you are hiring him | | | | to understand the important role of an OSC. |
| her to help you get a divorce. What does that mean? | | | | STEP THREE: DOMESTIC VIOLENCE RESTRAINING |
| Very simply put, at the end of this lengthy process, | | | | ORDERS |
| is a Judgment of Dissolution. | | | | Purpose: In a high-conflict divorce and custody case, |
| Your divorce is not final unless Judgment is entered. | | | | to protect the parties and children involved. |
| Sounds silly, but some people believe they are | | | | Unfortunately, sometimes, after a divorce or custody |
| divorced even without that piece of paper. Some | | | | case is filed, someone gets angry and becomes |
| have come to my office after unsuccessful jaunts | | | | physically or emotionally violent. This is particularly |
| with lawyers who let the case drag on for years | | | | troublesome if there are minor children involved. In |
| without obtaining judgment. Below are steps to | | | | order to protect yourself, it may be vital to obtain a |
| Judgment, and the purpose of each step. | | | | temporary restraining order against the other side. |
| STEP ONE: FILING OF PETITION/RESPONSE | | | | Temporary restraining orders (usually lasting no more |
| Purpose: To get the process started. | | | | than 20 days) may be granted without a full |
| California is a "no-fault" state. This means that either | | | | evidentiary hearing (based on declaration alone). Since |
| spouse may file a divorce without proving someone | | | | they are granted based on one party's declaration, |
| is at fault (i.e. cheating, physical violence, etc.). Thus, | | | | they are set for hearing, where the Judge will take |
| in order to start a divorce, one party simply files a | | | | evidence from both sides before entering an Order |
| Petition for Dissolution. Currently, this petition costs | | | | for a longer restraining order. (lasting up to five |
| $320 to file. | | | | years). |
| After the petition is filed, the party who filed it must | | | | In California, there is a rebuttable presumption that an |
| serve the other side with the papers in order to | | | | award of custody to a perpetrator of domestic |
| notify them that a divorce proceeding has been filed. | | | | violence is detrimental to the best interests of the |
| I highly recommend that prior to serving the divorce | | | | child. Because of the weight this carries, restraining |
| papers, you notify the other side. We've all seen the | | | | orders are often abused in custody cases. It is |
| video footage of the crestfallen face of Kevin | | | | essential to immediately consult with a competent |
| Federline, who allegedly discovered via text message | | | | family attorney if you are experiencing domestic |
| that Britney filed for divorce. Divorce is difficult | | | | violence in your case. |
| enough. If there is any room for courtesy, apply it. | | | | STEP FOUR: DISCLOSURES OF FINANCES |
| After the other side receives the papers, they have | | | | Purpose: To Reach a Fair Settlement, and Ensure the |
| thirty days to respond to the Petition by filing a | | | | Settlement is Not Later Overturned For Failure to |
| Response. The Response currently costs $320 to file. | | | | Disclose |
| If they do not file a response within thirty days, the | | | | Frequently in relationships, one person knows more |
| person who filed the Petition (called the Petitioner), | | | | about their finances than the other. California is a |
| may request a default judgment. In this case, they | | | | community property state. This means, all property |
| will generally receive everything they ask for in their | | | | acquired after the date of marriage, before the date |
| papers. (with some exceptions which you must | | | | of separation, except for gift and inheritance, is |
| discuss with an attorney). | | | | community property. Community property assumes |
| In California, Judgment is entered no earlier than six | | | | the notion that even in relationships where only one |
| months after the date the responding party (called | | | | spouse works, the other spouse is contributing to |
| the Respondent) is served with papers. Why six | | | | the marriage by staying at home and providing |
| months? This is the waiting period created by the | | | | domestic duties. |
| Legislature to encourage reconciliation. It is also a | | | | Sometimes, the spouse that doesn't work stays at |
| period where you can obtain all the financial | | | | home and does nothing. In a community property |
| information you need before entering into an | | | | state, that doesn't matter. The law assumes they |
| agreement. Obviously, if you can get divorced as | | | | are contributing something. Thus, in a divorce, both |
| quickly as you can get married, our society would | | | | parties are entitled to half of what was earned during |
| have greater problems than it already does. | | | | the marriage. |
| After the initial Petition is filed, automatic temporary | | | | Because of the community property laws, the law |
| restraining orders (ATRO's) kick in. They apply to | | | | mandates that both parties must make extensive |
| both the PETITIONER and the RESPONDENT. Some | | | | financial disclosures. Generally, they will come in two |
| examples of ATRO's are the following: | | | | parts - the Preliminary Declarations of Disclosures |
| 1) cannot remove minor children out of state; 2) | | | | (served at the outset); and the Final Declarations of |
| cannot take benefited party off of insurance; 3) | | | | Disclosures (prior to settlement or trial). Because one |
| cannot transfer, convey, encumber, or conceal | | | | party may know more than the other, these |
| property; 4) cannot create probate transfer without | | | | mandatory disclosures are the court's way of |
| notice. The purpose of ATRO's, amongst other | | | | preventing foul play. You must exchange disclosures. |
| things, is to prevent angry parties from absconding | | | | You cannot waive them. |
| with the children out of malice, and to waste away all | | | | If you are the supporting spouse, you may wonder: |
| community assets in order to spite the other side. | | | | What happens if I don't disclose my assets? He or |
| Filing and serving divorce papers is the first step. It is | | | | she does not know of my offshore bank account in |
| by far not the last step. To get a Judgment, you | | | | the British Virgin Islands. |
| must keep going. | | | | There are several consequences to not disclosing. |
| STEP TWO: GETTING TEMPORARY ORDERS VIA | | | | The Judge may overturn your agreement. The Judge |
| OSC | | | | may punish you by awarding the non-disclosed asset |
| Purpose: To have a sense of peace and order by | | | | to the other side. In a famous 1996 case against |
| having temporary orders in writing pending the | | | | non-disclosure, Marriage of Rossi, Denise Rossi won |
| Judgment. | | | | $1.3 million in the California State Lottery. 11 days |
| Because it takes six months (or longer) to obtain a | | | | later, she filed for divorce, from her 25-year |
| Judgment, in the interim, some stuff needs to be | | | | marriage, never telling her husband. Judgment was |
| sorted out. For example: Who stays in the house? | | | | entered. 2 years later, her ex-husband discovered |
| Who pays for the mortgage? If you are the | | | | that his ex-wife had won the lottery. (They always |
| supported spouse, will you get your living expenses | | | | find out.) He filed a Motion and the judge gave the |
| paid for? What about spousal support? If you have | | | | ENTIRE $1.3 million dollar lottery winnings to the |
| children, who has custodial rights? What about child | | | | husband, since the wife had intentionally not disclosed |
| support? | | | | her winnings in the divorce proceedings. |
| Because your questions need immediate answers, it | | | | Always disclose. |
| is wise to get an immediate court date in order to | | | | STEP FIVE: REACHING AN AGREEMENT OR |
| resolve these issues. You get a court date by filing | | | | PREPARING FOR TRIAL |
| an OSC. This stands for "Order to Show Cause", and | | | | Purpose: To Get the Judgment Finalizing your Divorce |
| can resolve issues of Child Custody/Visitation, Child | | | | Case |
| Support, Spousal Support, Attorneys' Fees, etc., | | | | After disclosures have been completed, it is time to |
| pending the issuance of a Judgment. Currently, this | | | | start negotiating settlement. For example, who will |
| costs $40 to file. | | | | keep the house? How much support will you pay? |
| Filing an OSC does not mean you are trigger-happy, | | | | And for how long? Who will have the children for |
| and immediately racing to court to win. Remember: | | | | Christmas or Hanukkah this year? |
| At all stages of divorce, you always have the option | | | | Because both of you have completed full and |
| to reach an agreement with the other side. You are | | | | thorough disclosures, you are both now in a good |
| always in control of whether you want to go to | | | | position to discuss settlement. It is a good idea at |
| court or not. Usually, if you reach an agreement, you | | | | this time to simultaneous request the court for a trial |
| can file it the Court. Usually, the Judge will agree with | | | | date. I do this for my clients because with a looming |
| you, and even commend you for settling. There are | | | | trial date, both parties are more eager to resolve the |
| certain exceptions, of course. For example, in | | | | case. In addition, if settlement discussions fall apart, |
| California, you can never totally take away the | | | | there is already a trial date set in the future, so as |
| Court's power to rule on child support. | | | | not to delay the dissolution. Other attorneys prefer |
| It is always a good idea to file an OSC when issues | | | | not to do this, so they will have more time to |
| of custody/visitation and support arise. Again, it takes | | | | prepare for the trial. |
| six months or longer to obtain a Judgment. In the | | | | If you reach an agreement, you can file a Stipulated |
| meantime, both parties should desire temporary | | | | Judgment, or a Marital Settlement Agreement (MSA). |
| orders for peace of mind. | | | | The difference between both is that in addition to |
| Of course, if both parties have been separated for a | | | | being attached to the Judgment, the MSA is also a |
| long period of time, and are self-supporting, and have | | | | contract, and if either party breaches it, you have an |
| no children, there may not be any issues to be | | | | additional remedy - to sue for breach of contract. |
| resolved pending the Judgment. In this case, I would | | | | Once the Judgment is stamped by the Judge, you |
| opt to forgo the OSC. | | | | should receive a Notice of Entry of Judgment, which |
| Although the orders obtained through use of an OSC | | | | gives you a date of divorce. Only when this piece of |
| are called "pendent lite" (Latin for "while the case is | | | | paper has been filed is your divorce final. |
| pending") temporary orders, in some cases, they | | | | Congratulations! |
| may end up being the permanent orders incorporated | | | | Of course, in divorce cases, nothing is final. You may |
| into the Judgment. This is especially true in custody | | | | always file for Modification, but there are legal |
| cases, because "status quo" is favored, and the | | | | standards you must meet before the Judge will grant |
| longer a "temporary order" stays in place, the firmer | | | | you one. Please consult with a competent family |
| a "status quo" arrangement becomes. It is essential | | | | attorney. |