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Step by Step Divorce Process in Santa Barbara

Step 1

Filing initial divorce petition and other initial documents with the court clerk:

The Petition is the first form filed with the court. The Petition must be filed in order to start a divorce case in California. In the Petition you will notify the court if you are asking for spousal support, attorney’s fees and other orders. The petition lays out a road map for the court about your marriage and the type of orders you are requesting.

The Petition will describe statistical facts about the marriage such as:

  • Date of marriage
  • Date of separation
  • Information about minor children
  • Basic information about separate property and debts of the filing party
  • Separate property and debts are defined on the property division page

If unknown or unsure, the filing party should state the following, “The nature and extent of separate property assets and debts are unknown to Petitioner at this time; Petitioner asks leave of court to amend this when same is ascertained.”

Basic information about community property of the filing party.

Community Property and debts are defined on the property division page.

If unknown or unsure, the filing party should state the following, “The nature and extent of community property assets and debts are unknown to Petitioner at this time; Petitioner asks leave of court to amend this when same is ascertained.”

Step 2

Summons (Fl-110)

A summons is issued by the clerk which orders the opposing party to file a response within 30 days of service of the initial paperwork.

When the summons is issued by the court, automatic restraining orders are placed on each party. These restraining orders restrain the parties, unless there is a court order or written consent from the other party, from:

  1. Removing children under 18 from the state
  2. Applying for or replacing passports for children under 18;
  3. 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;
  4. 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 an order of the court, except in the usual course of business or for the necessities of life; and
  5. Creating a non-probate transfer or modifying a non-probate transfer in a manner that affects the disposition of property subject to the transfer, without the written consent of the other party or an order of the court. Before revocation of a non-probate transfer can take effect or a right of survivorship to property can be eliminated, notice of the change must be filed and served on the party.

The summons also requires each party to notify each other within five business days before incurring any “extraordinary expenditures” made after these restraining orders are effective.

Despite the above, you can use community property, quasi-community property or separate property to pay court costs and attorney fees in your divorce action.

When you are served with the summons, contact an attorney. An attorney can negotiate stipulations with the other party to relieve you from the burden of the automatic restraining order. For example, a business owner may need a stipulation to buy or sell property for business purposes. These transactions may be a violation of the automatic restraining order. But, each party can agree to the transactions and transfers if a stipulation is signed by both parties.

Step 3

Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (FL105)

If you have minor children with the other party, you must file a Declaration Under Uniform Child Custody Enforcement ACT (UCCJEA). This document will provide the court with information about each child. You must give each child’s: name, date of birth, place of birth, sex, age and list each address of the child for the last five years.

The UCCJEA will also require you to provide any known related cases. For example, if a court in another state or county has previously made a ruling concerning the parties in a family, guardianship, juvenile dependency, adoption, or domestic violence case, you must give the court information regarding that case. The purpose of requiring this information is to notify the court of a prior court case and prior court orders regarding the children. The above list of cases will give the court relevant information about if each parent will be a suitable candidate for custody and or visitation of the child.

Service

All the above forms must be served on the opposite party along with a Response- Marriage (FL-120) and blank UCCJEA (FL-105)

Step 4

Preliminary Disclosures

California Family Code § 2104 requires the Petitioner to serve on the Respondent within 60 days of filing the petition preliminary financial disclosures.  The Respondent must serve the same preliminary disclosures on Petitioner within 60 days of filing the response. These disclosures are not filed with the court. Only a declaration regarding service of the documents on the other party is required. (FL-141)

The documents that must be produced to the other party include:

a. Income & Expense Declaration (FL-150)- http://www.courts.ca.gov/documents/fl150.pdfThe income and expense declaration may be the single most important document you will file in your Santa Barbara divorce case. You will state your current (or most recent if unemployed) employment, your educational background and income information.

You will list all sources of income you had from the last month before filing. You will also be asked to list the average income from each source over the last 12 months. You will have to disclose how much money you have in your bank accounts and how much your property is worth. Finally, you must disclose your month expenses.

TAKE YOUR TIME WHEN FILING OUT THIS DOCUMENT

Common mistakes regarding Income and Expense Declarations:

  1. Make sure your documents support what you are putting on the income and expense declaration. For example, attorneys will look at your bank statements, pay checks, tax returns, W-2s, 1099s, etc. If your documents reflect more income then your stating, you have a problem.
  2. Bank deposits exceeding your stated income. You will be required to disclose all your bank statements for the past year, and possibly further back. If your bank statements are reflecting more income than you claimed on your Income and Expense Declaration, you have a problem. If deposits are gifts from family members or other payments received which are not income, start thinking about evidence or testimony that will prove these deposits are not income.
  3. Stating the same amount of income in the last month section and the average from the last 12 months section. Unless your income has not fluctuated in the last 12 months, do not over look the difference of the two sections.
  4. Checking the Actual Expenses box when you are estimating your expenses. On page three of the Income and Expense Declaration you are asked to give your monthly expenses. Take your time to look through your monthly bills and put as close to the exact numbers as possible. If you are unsure about a single section, put estimated expenses. Remember, you are signing this document under penalty of perjury. If you lie, you are committing a crime and will be seen as untrustworthy to the court.

Why is the Income and Expense Declaration so important? The court will use it to determine how much child support and spousal support (alimony) you or the opposing party will have to pay. That is why you want to be as accurate as possible. Any intentional misrepresentations may result in monetary sanctions imposed against you.

b. FL-160- Property Disclosure (http://www.courts.ca.gov/documents/fl160.pdf)  There are 24 different sections to list your property and debts. You will also be required to attach documents to the Property Disclosure. DO NOT FILE THIS WITH THE COURT. You are required to serve these documents on the other party. You must attach the following documents to the property disclosure:

  1. Real Estate: Deeds and latest lender statement.
  2. Vehicles, Boats and Trailers: Title documents.
  3. Bank Accounts: Latest statements.
  4. Life Insurance With Cash or Loan Value: Latest declaration page.
  5. Stocks, Bonds, Secured Notes & Mutual Funds: Latest certificate or statement.
  6. Retirement and Pensions: Latest summary plan document and latest benefit statement.
  7. For profit-sharing, IRAs, deferred compensation, and annuities: Latest statement
  8. Accounts Receivable and unsecured notes: documentation of the account receivable or note
  9. Partnerships and Other Business Interests: Most recent K-1 and Schedule C from your tax return
  10. Other Assets: Most current statement, title document or declaration
  11. Support Arrearages: Orders and Statements
  12. For Credit Cards and Other Debts: Latest Statement

c. Other requirements for preliminary disclosures

Two years of tax returns filed by the party in the two years before the date that the party served the disclosure documents.

A statement of material facts and information regarding valuation of all assets that are community property or in which the community has an interest.

A statement of all material facts and information regarding obligations for which the community is liable.

An accurate and complete written disclosure of any investment opportunity, 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 propound discovery on the other party. Discovery allows each party inquire more about each other’s case. Common discovery devices are:

Interrogatories (FL-145)

Demand for production of documents

Special interrogatories

Requests for Admission (DISC- 020)

Depositions

Notice to Appear at Trial or Hearing and Produce Documents (CCP 1987)

In general, discovery responses must be delivered to the propounding party within 30 days of service. Add five days if service by mail.

CCP 1987 requires a party to bring documents and appear at a hearing if notice has been given at least 30 days before the hearing (add 5 more days if service by mail).

Step 6

Mediation and Mandatory Settlement Conference (MSC)

SANTA BARBARA MEDIATION

Pursuant to Local Rule 1501 (b), mediation by Family Court Services is required before any hearing on a contested issue of child custody or visitation. Thus, if you have children, before you can have your day in court, you must go to mediation.

To schedule a mediation appointment, contact the family court services department and they will provide you with a date and time. Then, file with the court and serve on the opposite party an SC-4018 (notice of mediation with Family Custody Services)

Unless the parties agree otherwise, everything said in mediation will remain confidential. Meaning, what is said in mediation cannot be used as evidence against you or for you in your later family law proceedings.

In mediation, the mediator will speak to both parties individually, and then together, in order to try and resolve some of the issues in dispute. There is no requirement that you must agree with the mediator’s recommendations. If the parties do not agree, the case will proceed to a judicial hearing.

Step 7

Mandatory Settlement Conference

If you believe your case is ready for trial, file local form SC-4014, Request For Case Management Conference/Trial Setting.

At this hearing the court will set an MSC and trial date.

Pursuant to Local Rule 1423, no less than five (5) court days before the MSC, each party shall lodge with the court and serve on the other party

1. An MSC statement

The MSC statement shall list the contested issues and proposals to resolve those issues.

2. A current Income and Expense Declaration and a current Dissomaster printout if child support and or spousal support are at issue.

At the MSC, come prepared to discuss the issues and see if you can resolve the case. There are uncertainties that come with going to trial. If you can resolve the matter without going to trial on favorable terms, that is always the best option.

Final Disclosures

At least 45 days before your first assigned trial date, each party must exchange final disclosures and a final declaration of disclosure. (FL-141)

Step 8

Default

If the opposing party failed to file a response within 30 days of being served, you can file a default judgment against them. A default judgment requires the filing of paperwork with the court. If the paperwork is filed properly, the court will enter a judgment and the divorce will be complete.

In California, at least six months from the date of filing must elapse before the parties are deemed divorced.

The following forms need to be filed:

Request to Enter Default (FL-165)

Declaration for Default or Uncontested Dissolution of Legal Separation (FL-170)

Notice of Entry of Judgment (FL-190)

Judgment (FL-180)

Spousal Support Forms

Spousal or Partner Support Declaration Attachment (FL-157)

Spousal, Partner or Family Support Order Attachment (FL-343)

Income and Expense Declaration (FL-150)

Child Custody Forms

Child Custody and Visitation Order Attachment (FL-341)

Child Support Forms

Child Support Information and Order Attachment (FL-342)

Child Support Case Registry Form (FL-191)

Notice of Rights and Responsibilities (FL-192)

Income withholding for Support (FL-195)

Property Division Forms

Property Order Attachment (FL-345)

Property Declaration (FL-160)

More forms may be required depending on your factual situation.

Step 8

MSA (Martial Settlement Agreement)

If a party has responded and you are both in agreement about all issues, the parties may enter into a Martial Settlement Agreement (MSA). The MSA should be drafted by an attorney who knows the proper language given your factual situation. If there are pensions or retirement accounts that need to be divided, it is important that an attorney help you through the process of properly drafting a QDRO, Qualified Domestic Relations Order.

Step 9

Judgment After Trial

Similar forms above in section 7 will need to be filed.

*BE ADVISED THIS LIST IS NOT EXHAUSTIVE. FACTUAL CIRCUMSTANCES WILL VARY AND REQUIRE SPECIFIC PROCEDURES. THIS IS FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE RELIED PRIOR TO CONSULTING WITH LEGAL COUNSEL.