~ Ways We Can Help You ~

Client Testimonials

Educate Yourself

 
 

~ Anatomy of a Divorce or Legal Separation ~

Generally speaking, regardless of whether you're getting a divorce or legally separated, your case will follow a similar path in the beginning, regardless of whether or not children are involved. It all starts with the FL-100 form, Petition – Marriage. On this form, you inform the Court about basic information about your case. For example, you check one box if you are asking the Court to grant you a divorce and you check a different box if you are asking the Court to formally acknowledge a legal separation from your spouse. You also give the Court specific information about how long you've been married, whether you have children or not, information about your assets and debts, along with specific requests that you would like to Court to order.

A word of caution: on the surface, the preprinted legal forms that are used throughout the family law process appear simple and straightforward. Sometimes they are, but more often they're not. In reality, each and every box you check or piece of information you provide has some legal significance and is guiding your case in one direction, or another. There are times when checking the wrong box won't be a big deal and there are other times when checking the wrong box may be disastrous. Knowing which box to check and in what type of situation is what being a competent lawyer is all about. It's also the reason that it's dangerous to have a paralegal service, document preparation service or para-lawyer help you out. If you get into trouble in your case because the wrong box was checked, the wrong information was provided or you failed to file a form that was necessary to solve your problem, your document preparation service or para-lawyer can't legally come to Court to fix your problem, unless they're actually an attorney (which is highly unlikely) and unfortunately, a significant amount of our business involves trying to fix problems created by self-represented parties who used document preparation services, para-lawyers and sometimes, even bad attorneys.

Please don't misunderstand us, there are many things that you can do yourself, but there are an equal and perhaps greater number of things that you would be wise to hire a competent lawyer to take care of for you. Sometimes a lawyer will do some of the work for you while you do the rest. In these situations, called limited scope agreements, you can have the best of both worlds. However, if you're inclined to try and handle your own legal problem, be aware that most Courts have a "Self-Help Center" to provide some assistance to self-represented parties to try to help them successfully navigate the complex judicial system. The "Self-Help Center" can provide you with access to the legal forms necessary to request services from the Court, along with general information about how the process works. If you're trying to go it alone, please check with the "Self-Help Center" so you have the best chance of getting it done right, the first time. If you get stuck, you can always call the Law Offices of Werno & Associates for help at (714) 542-4466, or you can click here to contact us. We also have links to various legal resources that might help you out in the Videos section of our website.

Along with the FL-100 – Petition form, you will need to file an FL-110 Summons – Family Law form, which gives notice to the other party about the Court proceeding and provides information regarding their legal rights, along with the timeframe in which they have to file a response to your petition (30 calendar days from the date of personal service of the Summons on them).

Once you have all the forms you need completed, you will need to physically file them with the Clerk of the Court and pay the appropriate filing fee, which unfortunately just keeps going up and up. If the forms are filled out correctly, at least from a procedural standpoint, the Clerk will place a file stamp on them (the documents are then called "conformed copies"), assign a date for hearing in some cases and will make a bunch of other official notations on the documents indicating that they were legally filed with the Court. If you find yourself unable to pay the filing fee, you can file a FW-001 Request to Waive Court Fees form, along with your other documents and the Court may actually waive your filing fees, along with any future fees that are required to complete your legal matter.

Once you have all your legal documents "conformed" by the Clerk, you'll need to have them personally served on the opposing party, which means in its most literal sense, handed to them. Unfortunately, at this stage in the proceeding, you can't simply hand your soon-to-be ex-spouse the package of forms and be done with it. The reason for this rule actually makes sense. There are times, especially in family law matters, when tensions run high and the risk of danger is great. If the Court allowed you to serve your own forms, people would get hurt. As such, you'll have to have someone not related to the case, who's over 18 years old give (serve) the documents to the other party. We would strongly suggest that you do not have a family member and especially adult children of the marriage serve documents on the other side as that is incredibly hurtful, emotionally damaging and will create unnecessary stress and tension. Many people, including most attorneys, utilize a process server to perform this function and the cost is relatively low, compared to the other costs involved in your legal matter. Process servers are well aware of the inherent risks involved with serving these documents and will typically do so in a professional, less confrontational manner. Once the documents have been served, you will need to file a Proof of Personal Service with the Court and you can use the FL-330 Proof of Personal Service form to complete that task. That way the Court knows that your documents were actually given to the opposing party and that the 30 calendar day timeframe in which to respond has started.

At some point, usually within the 30 day timeframe discussed on the FL-110 Summons form, the opposing party will file a document called a Response using the FL-120 form. This document formally acknowledges service of the Petition (FL-100) and also provides independent verification for the Court of the statistical information that you provided on your FL-100 Petition form. Once this document is filed, the case is considered "at issue," meaning that it can proceed in a normal fashion. In the off chance that the other party does not file a FL-120 form within the proper timeframe, you can still ask that the Court proceed and grant you a divorce, but that process exceeds the scope of this general outline. The FL-165 – Request to Enter Default form will typically be used in the case a Response is not filed within the required time frame and may also be filed in some other situations, such as when the parties agree to negotiate a resolution to their marriage and elect to have it proceed as a default or uncontested matter. Please note that a Legal Separation cannot proceed until and unless the other party files a response with the Court.

Once the case is "at issue," there are a number of mandatory documents that must be exchanged by each party, listing their assets and debts. Be aware that there is a strict fiduciary duty on each party to fully disclose all assets and the failure to do so may allow the other party to ask that the Court award 100% of the omitted asset(s) to the other spouse. This fiduciary duty can be found in several places in the law, but one particular case, In re Marriage of Feldman (2007) 153 Cal.App.4th 1470 makes the fiduciary disclosure requirements clear. Another case, In RE Marriage of Rossi (2001) 90 Cal.App.4th 34, is a somewhat famous case where a wife purchased a winning lottery ticket prior to separation and then filed for divorce from her husband, who had no knowledge that she had, quite literally, won the lottery. The ex-husband only learned about the lottery winnings when his by then ex-wife began receiving mail asking how she intended to invest her lottery proceeds. The husband went back to Court and was able to show the Judge that his ex-wife had intentionally withheld information regarding her assets (the lottery winnings), whereupon the Court not only granted the husband his 50% of the lottery winnings, which would be consistent with California community property law (each party has a 50% interest in all assets obtained during the marriage – inheritances and some other types of monies like personal injury settlements excepted), but also granted the husband the other 50% of the lottery winnings, which would have otherwise gone to his wife, had she not intentionally failed to disclose the lottery winnings in the first place. As this case clearly illustrates, an intentional failure to fully disclose all assets during a divorce can have catastrophic consequences.

The forms used to make both preliminary (and final) disclosures of your assets and debts, are the FL-140 – Declaration of Disclosure form, the FL-142 – Schedule of Assets & Debts form and the FL-150 – Income & Expense Statement. These forms are mandatory and without them, the Court cannot grant a divorce or legal separation.

Once the disclosures of assets and debts have been made, cases begin to differ. For example, some cases will be negotiated, either through Mediation, by mutual agreement of the parties, or through the assistance of counsel resulting in the drafting of a legal contract of sorts called a Stipulated Judgment. In this scenario, the parties will utilize the FL-170 Declaration for Default or Uncontested Dissolution form, the FL-180 – Judgment form and the FL-190 – Notice of Entry of Judgment form. The FL-170 form is used to, among other things, tell the Court that the parties have reached an agreement that the parties would like made a formal, binding Order of the Court, despite the fact that one of the parties may not have filed a formal Response using the FL-120 form. The FL-180 form is signed by the Judge, making your divorce final or recognizing your legal separation. In many cases, this form is used in conjunction with a Stipulated Judgment to fully articulate the negotiated agreements reached by the parties regarding various issues, such as child custody, visitation, child and spousal support, allocation of assets and division of debts. If you were seeking a divorce, the date your divorce becomes final will also be listed on this form. The last form, the FL-190 form is more of an administrative form, which is used to provide formal notice that the Court has entered judgment in your case. Each of the parties will be mailed a conformed copy of the Judgment, which should be kept in a safe place should you need it at a later date.

One final note for those of you making a request to the Court for an initial Order or for a modification of an existing Order (perhaps for child or spousal support, custody, visitation or another reason), on July 1, 2012, the Judicial Counsel finally did away with two similar and confusing Judicial Counsel forms, the Notice of Motion (FL-301) form and the Order to Show Cause (FL-302) form. In reality, these forms confused everyone, including attorneys. The two forms were replaced with the Request for Order and Supporting Declaration (FL-300) form, which should now be used to ask the Court to make or change Orders.

If you would like assistance with your divorce or legal matter, you can always call the Law Offices of Werno & Associates to discuss how we can help you. Our phone number is (714) 542-4466 and consultations are always free.


Advisement: The information provided on this page and throughout this website is intended for general, educational purposes only and should not be construed as specific legal advice about your case, how a particular matter should be handled or how your case should proceed through the judicial system.  You should always contact a competent attorney to discuss the specific details of your own legal matter, before taking any action, so that you can be fully apprised of all of your legal rights, which this website is not intended to do.

Orange County family law attorney

Contact Us
For A Free Consultation

Contact Us
Please enter your name!
Please enter your email!
Write your message!
* Required fields
or
Offline

Testimonials

Centrally Located In Orange County