Divorce Timeline | Understanding the Guidelines for First Time Divorcees

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Going through a divorce can be stressful. It’s stressful for the couple, for their families, and for any children involved. It’s often one of the most stressful events a person can experience in their life. And for those going through their first divorce, the process can seem daunting and complicated. On top of all that, there is an emotional side to divorce. There are ties being cut that have worked their way through many areas of your life and cutting or rewiring those ties is an emotional upheaval. 

As you begin navigating through the process of your divorce, you don’t have to guess and hope that you understand it all. In this guide we will walk you through the different stages, steps, and processes to finalize your divorce in the state of California. Let yourself process your emotions and leave some of the stress on the table by gaining a better understanding of the next phase of your divorce.

Divorce Timeline

Step 1: Deciding it’s time for a lawyer

Hopefully both of you are on the same page and agree that it’s time to start the process of divorce. The first hurdle to cross is admitting that to yourself and picking the right lawyer for you. Once lawyers are involved, one of the parties will need to have their lawyer write a petition – a legal document stating why that side is requesting a divorce and how they want to settle things like finances and custody. This party becomes known as the petitioner. 

Step 2: Making it official with the court

With the petition written up, the lawyer writing it files it with the court. At that point, the lawyer or the court will follow through with informing the other party – the respondent – by serving them the petition along with a summons. This requires the spouse to respond. 

The date the petition is served is important when filing for divorce in California. For California divorce proceedings, there is a six-month waiting period for a filer’s status to change from married to single. Not all divorce proceedings will take the full six months and some can take significantly longer. But you can not file taxes separately or remarry before the six months are over. Once the petition is served to the respondent, the six-month waiting period begins. 

Step 3: Getting the response

At this point, the ball is somewhat in the respondent’s court. Once they have been served the petition and the summons, they have 30 days to respond in the state of California. There are cases where the petitioner’s lawyer can allow an extended amount of time for response. The response will be either their agreement with the petition or their refusal. Either position they take on the petition will count as a response. 

If the spouse doesn’t respond at all, the court will default to the assumption that the respondent agrees with the petition. How the spouse answers regarding the petition will determine how the rest of the divorce process goes. Ideally, the spouse would be in agreement, though that doesn’t always happen. 

If support and custody are an issue to be decided in the divorce filing, then a Request for Order will also need to be filed (RFO). The RFO can speed up the timeframe of the hearing so that custody, support, or restraining orders can be made or resolved. Also specific to custody disputes, a Custody Mediation will be required. The Custody Mediation needs to be completed before the first hearing. If either party does not attend, the court can issue fines, sanctions, or orders against them. 

Once both parties have been notified of the Custody Mediation and the hearing date, they must both confirm with the court. To do this, they must call the clerk at the court they will attend. 

Step 4: The exchange of documents

Now that both parties are aware of the petition and any responses have been received, the spouses are asked to exchange a set of important documents relating to the issues in the petition. These include documents about property and income. It’s with these types of documents that future decisions will be made by the court regarding child support, alimony, and how to divide up property and debt. 

In California, both parties are required to complete the mandatory disclosures, or “Preliminary and Final Declarations of Disclosure,” before settlement or trial. 

Step 5: Mediation and settlement 

In many cases, couples will have the chance to voluntarily enter into mediation and settlement. This would allow them to sit down and resolve their issues regarding property, child support, alimony, and custody without continuing into a lengthier court battle. 

If a couple is able to reach a settlement during mediation, the agreement will be presented to a judge during an informal hearing. During this hearing, the couple will be asked a few basic questions. They will also be asked whether or not they both understand and want to sign the settlement they are agreeing to.

If both parties are able to come to agreement about all areas of concern within the divorce filing, the attorneys will prepare a Settlement Agreement to present to the court. Depending on how friendly the settlement is, the agreement can be made before the end of the six-month waiting period. While this may be the end of meetings, mediations and discussions, the official granting of the divorce will not happen until that waiting period is up.  

If the couple isn’t able to come to an agreement, the case will go to trial.

Step 6: To trial or not to trial

If the judge does NOT approve the settlement agreement – or if the couple wasn’t able to come to an agreement during mediation – the case will proceed to a trial. 

During a trial, the attorneys representing both sides will present arguments accompanied with any evidence (including live testimony by witnesses) they have related to the unresolved issues. This would apply to child custody and visitation, child and spousal support, and any division of the property. After the evidence and arguments are presented, the presiding judge will make their decision and the divorce will be granted, assuming the six-month waiting period is over. 

At this point, the process is complete unless one side chooses to appeal the judge’s decision. Either side can make an appeal which would take the decision to a higher court. It’s important to note that it’s unlikely an appeals court would overturn a judge’s decision. It’s also important to note that if both spouses agree to settlement terms, the agreement usually cannot be appealed. 

Dividing Property

One key issue in a divorce proceeding is the division of property and debt. California law requires that community property and debt are shared equally. This rule can be altered if both parties agree to an unequal split, however it is emphasized that both parties must agree to it. 

Also, the division doesn’t necessarily mean it will be exactly 50/50 on everything. For example, one party could take the proceeds from selling a home while the other receives assets or property of an equal value. The same type of division happens with debt. 

Timeline

The divorce process can take anywhere from a few months to sometimes several years. The length of time that your individual divorce process will take depends largely on how well you and your spouse can cooperate and compromise with each other. The more a couple works together toward a resolution, the faster the divorce proceedings can go. Grievances and other complications may play a role in the length of time it takes for your divorce decree to be issued. 

Additionally, it’s important to remember that regardless of even the most amicable settlement, a divorce can not be officially granted in the state of California until the end of the six-month waiting period. 

For Those Considering A Divorce:

Deciding it’s time to consider divorce is a difficult decision and coming to that conclusion can be overwhelming. Follow the advice of your lawyer and remember your end goal through the proceedings. With the help of family, friends, and a caring legal representative, you can emerge from the process with a new outlook and a new life. 
For comprehensive representation in divorce or domestic dissolution, call Azemika & Azemika Law – Bakersfield divorce lawyers and Kern County family law attorneys. We will fight for and protect you and your family during the separation and divorce process. Contact us today and let us focus on your family so you can focus on the future.

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A California Court of Appeals has ruled that a Trial Court was not wrong by deciding that a lender had not written-off the balance of a line of credit on the parties’ family home and thus, deducting the balance of the line of credit from the value of the family home which was awarded to Mother. Trial Court was also not wrong, according to the Appellate Court, by sanctioningFather for failing to make the required disclosures to Mother about another house, by declining to order reimbursement of property taxes paid by Father, or by its orders regarding other community property assets. In the case of In re Marriage of Gutierrez, Mother and Father were married in 2001, and subsequently had two children. In 2006, they bought a house in Hacienda Heights(Family Home), financing the purchase with a loan of $204,000 from Washington Mutual.

After Mother and Father separated in 2008, Mother and the kids remained in Family Home. Also, during marriage, Mother and Father bought property in Havasupai, Arizona, for $135,000.

After the parties separated, Mother was unable to keep up the payments on the Family Home, the value of which had dropped, and she stopped making payments on the mortgage and the line of credit. When Chase Bank acquired Washington Mutual, it referred Mother’s delinquent loans to a collection agency, which pursued Mother for payment of $170,000. Mother lacked the funds to pay, but she was able to negotiate with the bank to forestall foreclosure. Mother began making payments of $700 month in 2011, and was able to bring both loans current.

Meanwhile, in 2008, Trial Court ordered Father to sell the Arizona property and pay Mother half of the proceeds to alleviate the financial distress she was under from Father’s lack of financial support. Father sold the property in 2011, but he did not tell Mother and kept the sale proceeds of$38,000 for himself.

At their 2015 divorce trial, Father called two witnesses to testify in support of his claim thatChase Bank had written-off the loans on the Family Home. A mortgage bank Research Officer repeatedly claimed that the loans had been written-off, but on cross-examination by Wife’s attorney, he admitted that he was unclear as to when in 2009 the write-off occurred. ResearchOfficer also could not explain why Mother was still making payments on the loans in 2013, if they had been written-off in 2009, and he admitted that he had no documentation regardingMother’s agreement with the bank. Research Officer stated that the bank’s policy was to refund payments made after a loan was charged off, but he did not know why Mother had not received any such payments.

Father’s other witness, a tax preparer and paralegal, testified that he concluded that the write-off had occurred from his interpretation of documents given to him by Father. This witness also had no explanation for the bank’s accepting of Mother’s monthly payments if the loans had been written off.

As the trial progressed, Trial Court found that Father had breached his fiduciary duty to Mother by concealing an asset when he failed to disclose the existence of another house in Rosemead on his Preliminary Declaration of Disclosure and his Final Declaration of Disclosure. Trial Court ordered sanctions for the breach of fiduciary duty pursuant to California Family CodeSection1101 and Section 271.

Other evidence revealed that Father failed to share the proceeds from the sale of the Arizona property until the time of trial, some three years later. Father claimed that he had used the funds to pay property taxes and balances on joint credit cards, but he provided no documentation of those payments. Nonetheless, Father sought reimbursement of $3,578 for his tax payment.

Father made other allegations concerning Mother’s sale of a jeep and an old all-terrain vehicle, her conversion of a watch belonging to him, and Mother’s retention of $20,000 to $30,000 worth of tools he had left in the garage.

After the trial concluded, Trial Court issued a lengthy and detailed statement of decision in which it determined that the loans on the Family Home had not been written-off and deducted the remaining balance of $171,099 from the value of the Family Home awarded to Mother, and repeated its sanctions order. Trial Court declined to order reimbursement for the taxes Father paid on the Arizona property because it would be unfair and unreasonable to do so, givenFather’s failure to pay Mother’s share of the sale proceeds for three years, leaving her in financial straits and in fear of losing Family Home. Trial Court found that Father’s other contentions regarding the vehicles sales, his watch, and his tools were not supported by the evidence.

F appealed, but California Court of Appeals has now issued a ruling affirming Trial Court’s decisions. The Appellate Court has ruled that (1) Father’s contentions regarding the loan write-off fail because they are not supported by the record [Father’s two witnesses could not explain why Mother had been paying on the loan and the bank had not returned her payments to her when that is the bank’s policy when someone makes a payment they should not have made; they also admitted that they got their information from Father; and they had not seen the agreement for payment between Mother and the bank]; (2) Trial Court did not err in ordering sanctions under California Family Code Section 271 and Section 1101, which are intended to spur good conduct and full disclosure between divorcing parties (not as redress of injury) [Father had argued that it didn’t matter that he didn’t disclose it on his Disclosures because Mother knew about the other property]; (3) Trial Court did not abuse its discretion by failing to order reimbursement on equitable grounds (Mother was left to struggle financially while Father sat on the sale proceeds) where the court order clearly required him to pay Mother her share of the sale proceeds within a reasonable time; and (4) substantial evidence supported Trial Court’s ruling on the other allegations (tools left in garage; his watch; and vehicles). 

TRIAL JUDGE WAS WRONG IN NOT GRANTING A CONTINUANCE OF HEARING IN A DOMESTIC VIOLENCE CASE

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A California Court of Appeals has ruled that a Trial Court was wrong, in a Domestic Violence Protection Act (“DVPA”) case, by refusing to grant a continuance to a Plaintiff who needed one to permit him to serve the opposing party and to give him time to recover from an unforeseen back surgery. In the case of J.M. v. W.T., Plaintiff, on January 8, 2019, filed a request for a DVPA protective order against Defendant. In a supporting declaration, Plaintiff asserted that between December 23, 2017, and March 17, 2018, Defendant committed several acts of domestic violence against Plaintiff (throwing a book at him, calling him offensive names over the phone, punching him with closed fist, biting him during sex, threatening to hurt his dog after the dog preferred Plaintiff to Defendant, and demanding entry to Plaintiff’s condo and then becoming physically out of control). Trial Court issued a Temporary Restraining Order pending the hearing and scheduled a hearing for January 29, 2019.

On January 24, 2019, Plaintiff submitted a written request for a continuance on California Judicial Council Form DV-115, explaining that he had been unable to serve Defendant with the necessary papers and that he was scheduled for spinal surgery on January 28, 2019, after which he would be unable to care for himself, stand or sit for a long period, or think clearly because of the medications. Neither party appeared at the January 29, 2019 hearing, and Trial Court denied the request for a continuance and dismissed the case, commenting that the incidents complained of happened almost a year ago.

Plaintiff appealed Trial Court’s decisions, and now a California Court of Appeals has reversed Trial Court’s decisions and remanded the case back to Trial Court with instructions. The Appellate Court has ruled that (1) under California Family Code Section 245(b), Trial Court must grant a continuance if a party shows good cause for one in writing or orally on the record; (2) the failure to serve the opposing party is grounds for a continuance; (3) here Plaintiff demonstrated good cause for a continuance on these facts; and (4) Trial Court abused its discretion by failing to grant a continuance. Therefore, the Appellate Court reversed Trial Court’s order denying a request for DVPA protective order and remanded the case back to Trial Court with directions to grant a continuance within 30 days of the case coming back to Trial Court.

HUSBAND LIVING IN FAMILY RESIDENCE AFTER SEPARATION OWES WIFE REASONABLE RENT BUT NOT INCREASE IN VALUE OF HOME

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A California Court of Appeals has ruled that Watts charges [a party having sole use of both parties’ community property asset, i.e., home, after separation can be charged for that party’s sole use, i.e., reasonable rental value of the home] may be ordered against Husband where Husband lived in his separate property house after the parties’ date of separation and Moore/Marsden formula gave the community a beneficial interest in the house because payments during the marriage were made with community property funds. In the case of In re Marriage of Mohler, Husband bought a house for $168,000, taking title in his sole name in February of 1995, prior to the parties’ marriage. Husband and Wife were married in September of 1998. They lived in the House until they separated on July 2, 2011. The payments on the House were made with community property funds [the parties’ earnings during the marriage] until that date. The principle reduction on the mortgage loan on the House was reduced during the parties’ marriage to the tune of $56,557. After they separated, Husband lived in the House and paid the house payments with his separate property funds [his earnings after the parties’ date of separation].

At trial in 2017, Trial Court valued the House at $530,000. The parties agreed that the Moore/Marsden formula [when community pays for one party’s separate property House during the marriage, the community gets reimbursed based on principle reduction of the loan on the House and appreciation in value of the house during the marriage] should be used to calculate the community property interest in the House acquired by making the mortgage payments. Using that formula, Trial Court calculated that the community property interest amounted to 33.66%, or $172,684 (appreciation value plus mortgage principle reduction). However, Wife argued that the community property interest must be increased to 64.9% to include the six (6) years that Husband lived in the House after the parties’ separation. In essence, Wife was arguing that she had to wait for six (6) years to receive her community property share in the House while Husband was solely enjoying the House and thus, her community property interest should be increased.

Trial Court agreed and re-calculated the community property interest under the Moore/Marsden formula at $332,944, which included Husband’s separate property payments of $52,482 [payments he made on the mortgage after the date of separation]. Husband appealed and now the California Court of Appeals has vacated Trial Court’s order and has remanded the case back to Trail Court with directions as to how to resolve the case.

The Appellate Court has ruled that (1) by making payments on Husband’s separate property House with community property funds [parties’ earnings during the marriage], the community acquired a beneficial interest in House the amount of which is calculated by the application of the Moore/Marsden formula;(2) the community ceases to acquire a beneficial interest in a spouse’s separate property when community property payments stop or date of separation occurs; (3) Trial Court erred by applying the Moore/Marsden formula beyond the date of separation after which Husband made house payments with his separate property [his earnings after the date of separation]; and (4) if any compensation is due to the community by reason of Husband’s living in the House after the parties’ separation, it must be calculated as Watts charges. According to the Appellate Court, “where, as here, the community does not own the property outright but instead maintains a beneficial partial interest in the property due to a Moore/Marsden calculation,” Watts charges may be applied. Therefore, the Appellate Court has remanded the case back to Trial Court for further proceedings in line with this opinion.

WIFE CONVICTED OF DOMESTIC VIOLENCE NOT ENTITLED TO SPOUSAL SUPPORT

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A California Court of Appeals has ruled that a Trial Court was not wrong when it denied Wife a spousal support award under California Family Code Section 4325’s rebuttable presumption against spousal support award to a spouse who is convicted of domestic violence. In the case of In re Marriage of Brewster and Clevenger, Husband, an orthopedic surgeon, and Wife, a gynecologist and obstetrician, separated in August of 2011, after 21 years of marriage. Wife filed for divorce.

In March of 2015, Husband filed a request for a temporary spousal support. In his supporting declaration, Husband stated that he had been depositing $10,000 per month into a joint account to cover Wife’s expenses and had been paying the mortgage and property taxes on the parties’ family home, where Wife was living rent free. Husband also asserted that he should not be ordered to pay any spousal support to Wife because she had been charged with “several criminal counts” for harassing him. Wife filed no response to Husband’s request.

After Trial Court set a trial date for October of 2016, Husband filed a trial brief in which he asked Trial Court to take judicial notice of the file in Wife’s criminal stalking case. Husband acknowledged that Trial Court had reserved jurisdiction on his temporary spousal support request, but reiterated his assertion that he should not have to pay spousal support to Wife under Family Code Section 4325 [rebuttable presumption against spousal support award to spouse convicted of domestic violence] and Section 4320 (i) and (n) [spousal support factors regarding domestic violence and any other equitable factors] since Wife had been convicted of domestic violence in January of 2016. He also claimed that Wife was underemployed and could be self-supporting.

Trial Court held four days of trial between October of 2016, and January 2017. At the outset, Trial Court took judicial notice of the minute orders and sentencing hearing in Wife’s criminal case. The parties stipulated on the record that the duck club membership would be assigned to Husband at a value of $65,000. Wife testified that she had been convicted of some criminal counts but did not specify them. However, in her written closing argument, she confessed to having put a non-poisonous python and several rats into the home where Husband was staying.

In rebuttal of the Family Code Section 4325 presumption, Wife testified to three incidents in which Husband had committed domestic violence against her. In the first, Wife claimed that Husband intentionally dislocated her finger when she refused to let go of his shirt during a confrontation; in the second, she alleged that Husband screamed at her, picked her up out of his chair, and threw her across the hallway after she confronted him at his office during business hours about an affair; and in the third, she stated that she had gone to Husband’s office on a Saturday, gained entry with a key she had previously purloined, and surprised him at his desk. In the ensuing conflict, Wife stated that Husband had injured her hip by throwing her down on the thinly-carpeted concrete floor, but had dissuaded her from calling police and begged for forgiveness. In his testimony, Husband claimed that Wife was the aggressor in each incident, that he had merely tried to subdue her, and that he had not noticed the bruises that she had claimed to have received.

Wife also testified to having several medical conditions relating to her shoulders, hands, and feet, as well as to suffering cardiac arrythmias requiring hospitalization after the last incident with Husband. Wife said that most of her conditions had since resolved, but she was unable to perform many of the procedures required in her practice and had begun to offer medical weight reduction treatment to supplement her practice.

After the parties submitted written closing arguments, Trial Court issued a tentative decision and subsequent divorce judgment in which it awarded the duck club membership to Husband at a value of $60,000, determined that the $10,000 payments Husband made were in lieu of spousal support and were taxable to Wife and deductible to Husband, ruled that Family Code Section 4325 applied (Wife had not rebutted the presumption), and set spousal support at zero.

Wife appealed, but after modifying the value of the duck club membership, the California Court of Appeals has affirmed Trial Court’s decisions. The appellate court has ruled that (1) it must deny Wife’s request for judicial notice of documents not presented at trial and not considered by Trial Court in making its judgment; (2) Trial Court was not wrong in applying Family Code Section 4325 presumption or in concluding that Wife failed to rebut the presumption on these facts (Wife filed to introduce documented evidence that she was the victim of domestic violence and statute does not require conviction be for a violent act); (3) Trial Court was also not wrong in declining to order spousal support; (4) Trial Court was also not wrong in finding that Husband’s payments into joint account were in lieu of spousal support (Trial Court did not lack jurisdiction to make temporary support order or retroactive order; Wife was estopped from arguing that payments were not in lieu of spousal support when she took the opposite position at trial); (5) Wife waived her argument regarding taxability of payments by failing to raise that issue at trial; and (6) Trial Court was wrong by valuing duck club membership at $60,000 after parties’ stipulated that its value was $65,000. Therefore, the Court of Appeals modifies the judgment to reflect correct value of the membership and affirms the remainder of the judgment.