In California a dissolution of marriage is a “no fault” concept. If either party is willing to testify that irreconcilable differences have entered into the marriage which have caused the irremediable breakdown of the marriage, a Judgment of Dissolution will be entered.
Filing the Petition and Response
The process begins by filing a Petition in the Superior Court of the county in which the parties have resided for at least three months prior to the filing of the Petition. The Petition sets forth that irreconcilable differences have entered into the marriage and that there is no hope for reconciliation. Furthermore, the Petition sets forth, if applicable, a request for spousal support, child support, attorney’s fees, costs and/or a request that the community property be divided according to law.
Once the Petition is filed with the court, a copy of the Petition and the Summons is then served on the responding party, and the Respondent has 30 days in which to file a Response. If a Response is not filed within the 30 days, the Petitioner may proceed to court on the basis of a Default.
Obtaining a Trial Date
It is important that we obtain our trial date as soon as possible. In all likelihood your matter will not go to trial. However, experience has shown me that until everybody’s back is against the wall (and in this case the wall is the fear of going to trial), hard and fast decisions are not made. Without these decisions being made, cases cannot settle, as a general rule. Thus, we must obtain our trial date as soon as possible.
A trial date is obtained by filing a document called an At-Issue Memorandum. Once a Response has been filed, an At-Issue Memorandum should be filed with the court and the matter is then set for trial. If the case is a “short cause” matter (a case that will take less than one day–five hours–in which to try), we are able to get into court in about 90 to 120 days from the filing of the At-Issue Memorandum. If the matter is “long cause” (more than one day), it normally takes 4 to 6 months from the time the At-Issue Memorandum is filed to get to trial.
Since domestic relation cases have no priority on the Trial Setting Calendar (except for custody and child support), it is not uncommon for the matter to be set for trial on a specific day, the attorneys prepare for trial and appear in court on the date specified, only to have the court tell the attorneys and the parties that there is no courtroom available and they will have to come back on another date. The chances are at least 80-20 that this will occur. The chances of not “going out” on the day specified are somewhat diminished if the matter will take less than a day to hear. But this is certainly something to keep in mind as it is likely to occur. This is one reason why an equitable settlement is much preferred rather than going to trial.
When a case does not get assigned to trial on the day that it is scheduled, two important things occur. First, the dissolution process is extended by at least another 90 to 120 days. The court will reschedule your trial 90 to 120 days in the future. Thus, you are required to remain in your state of “limbo” for that additional period of time. Your chances of obtaining a courtroom on the second date that you are set for trial are only slightly better than the chances on the first date. Secondly, additional monies must be spent. Although we will have thoroughly prepared your case for trial or settlement by the time of the first trial date, there is normally a minimum of 5 to 10 hours that must be expended in preparation for the second and subsequent trial dates. Certainly, the vast majority of the work expended for the first trial will not have to be repeated. However, I will have to review the file in order to reacquaint myself with the intricacies of your case, meet with experts and other witnesses and prepare you as a witness once again. Furthermore, I will have to spend an additional 2 to 4 hours at the courthouse on the morning of the second and subsequent trial dates in order to determine whether or not we will be assigned a courtroom. It is not uncommon for this to occur 3 or 4 times, or more, before we actually obtain a trial date. I have been involved in extreme cases where the matter is continued 7 or 8 times before a courtroom is eventually available.
Alternatives to Trial
One option to the procedure set forth above is to “rent-a-judge.” There are a number of retired judges and excellent family law attorneys who can be our judge. They charge somewhere in the neighborhood of $200.00 an hour. Each party would be responsible for paying one-half of the judge’s fees. The main advantage to renting a judge is that if your matter must go to trial, we will have a date certain. We will also be able to get about one and one-half court days into one day with a rent-a-judge since the rent-a-judge can devote 100% of his or her efforts to our case. Whether or not this is economically feasible depends upon the facts of your case and we can discuss this further in the future.
It should be pointed out that most cases do not go to trial. Certainly, settlement is much more preferable than a trial, if all the parties can be satisfied. Since the dissolution is a no-fault concept, no evidence will be introduced at the trial as to the character or improprieties of either party, with the possible exception of where custody of the children is at issue. Thus, it is not possible for either party to “get even” with the other by bringing skeletons out of the closet in open court.
Entry of Judgment
Once the parties have entered into a Marital Settlement Agreement or the matter has been tried, a Judgment of Dissolution of Marriage is entered. For all intents and purposes, this is your divorce, except that you cannot remarry until at least six months from the date the court acquired jurisdiction over the Respondent (the date the Respondent was served). In the Judgment of Dissolution of Marriage, the court will insert the date upon which the status of the marriage becomes final. Once this date has been inserted in the Judgment of Dissolution of Marriage, no further steps need be taken by either party in order to have the dissolution of their marriage become “final.”