Step 2: Summons
Issued by the clerk, a
summons 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 upon each party.
Unless there is a court order or written consent from the other party,
a restraining order prevents the following:
- 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 an order of the court, except
in the usual course of business or for the necessities of life
- 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.
Each party, however, can agree to the transactions and transfers if a
stipulation is signed by both.
Step 3: If You Have Minor Children
If you have minor children with the other party, you must file a
Declaration Under Uniform Child Custody Enforcement ACT (UCCJEA) form. This document will provide the court with information about each child.
You must give each child’s name, age, date of birth, place of birth,
and sex, and list each address of the child for the last five years.
The UCCJEA will also require you to provide any known related cases involving
your child. 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.
All the above forms must be served on the opposite party along with a blank
Response- Marriage (FL-120) and blank
You cannot serve your spouse. Only a non-party who is over 18 years old
must serve the documents. After serving your spouse, the server must file
a proof of personal service with the court.
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, (FL-141) on the other party is required.
The documents that must be produced to the other party include:
The income and expense declaration may be the single most important document
you will file in your Santa Barbara divorce case, so take your time when
filling this out.
You will state the following on this important form:
- Current or most recent employment
- Educational background and income
- All sources of income from the month before filing
- Average income from each source in the last 12 months
- How much money is in your back account(s)
- How much your property is worth
- All monthly expenses
You can avoid costly mistakes by doing the following:
- Ensure your stated income and expenses are accurately reflected on documents
such as bank statements, tax returns, W-2s, 1099s, etc. If information
in these documents differs from information on your FL-150, you may have
- Ensure your bank deposits do not exceed your stated income. You must disclose
all bank statements for at least the past year. If these reflect more
income than claimed, you may have a problem. Note: If deposits are gifts
from family or other non-income payments, you might need evidence or testimony
to prove they are not income.
- Don’t assume your average income for the past 12 months is the same
as last month’s income. Unless your income truly does not fluctuate
month-to-month, you are likely to have different values for these sections.
- Stating expenses as actual when they are estimated. If you estimate even
a single item in this section, mark your expenses as estimated. Stating
incorrect or misleading expense amounts could cause a court to deem you
untrustworthy, or even open you up to a perjury charge.
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. This is
why you want to be as accurate as possible. Any intentional misrepresentations
may result in monetary sanctions imposed against you.
There are 24 sections to list your property and debts on these forms. You
will also be required to attach documents to the property disclosure,
which you will serve to the other party, but not file in court:
You must attach the following documents to the property disclosure:
- Deeds and latest lender statement
- Titles for vehicles, including boats and trailers
- Latest declaration of life insurance with cash or loan value
- Latest certificate or statement of stocks, bonds, secured notes, and mutual funds
- Latest summary plan or benefit statement regarding retirement and/or pension
- Latest statement of profit-sharing, IRAs, deferred compensation, and annuities
- Documentation of accounts receivable and unsecured notes
- Most recent K-1 and Schedule C (from your tax return) regarding partnerships
and other business interests
- Most current statements, titles, or declarations of other assets
- Orders and statements for support arrearages
- Last statements for all credit cards and other debts
C) Other requirements for preliminary disclosures:
Some documents that may also be required for disclosure are the following:
- Two years of tax returns filed two years before the disclosure documents
- Statement of material facts and information regarding valuation of all
community property assets, or those that might have a community interest
- Statement of material facts and information regarding community obligations
- Accurate and complete written disclosure of investment opportunities or
other income-producing opportunities from the marriage date to the date
Step 5: Discovery
Each party has the right to propound discovery on the other party. Discovery
allows each party to inquire more about each other’s case. Common
discovery devices are
Interrogatories (FL-145) for a demand for production of documents and other special interrogatories,
as well as
Requests for Admission (DISC-020) for depositions, notices to appear at trials or hearings, and to produce
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
Mediation is a meeting attended by both parties, their lawyers, and a neutral
third-party mediator. Although this step in the process can be voluntary
and lead toward a settlement, the Court can also require this step. The
goal of mediation, oftentimes, is to help both parties realize the strengths
of their arguments and seek possible resolutions that won’t require
further involvement with the Court.
Step 7: Mandatory Settlement Conference (MSC)
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 court days before the MSC,
each party shall lodge with the court and serve on the other party:
- An MSC statement listing the contested issues and proposals to resolve
- 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 on favorable terms without going to trial, that
is always the best option.
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. 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:
Spousal Support Forms
Child Custody Forms
Child Support Forms
Property Division Forms
Step 8: Marital Settlement Agreement
If a party has responded and you are both in agreement about all issues,
the parties may enter into a Marital 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 Qualified Domestic Relations Order (QDRO).
Step 9: Judgment After Trial
The specific language in the judgment will be critical to your future.
Treat the judgment as your bible, which you must follow. If you violate
any terms of the judgment, you could be held in contempt of court. Additionally,
you may face negative financial and other consequences. When agreeing
to the judgment, have your lawyer go over every section to ensure you
understand your obligations. If you don’t agree, negotiate or submit
the issue to the judge for a decision.
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, or in place of, consulting with legal counsel.
Contact Morales Law at
(805) 422-7966 to learn how this may apply to your situation and how we might help with
your divorce in Santa Barbara.