The following is a summary of steps that will take place concerning a dissolution of marriage action. Please be aware that not all of the issues addressed may apply to your particular case. Once the Petition for Dissolution has been filed and served, the following orders are in effect and apply to both you and your spouse.
Starting immediately you and your spouse are restrained from:
1. Removing the minor child or children of the marriage from the State without prior written consent of the other party or an order of the Court;
2. Cashing, borrowing against, canceling, transferring, disposing of, or change the beneficiaries of any insurance including, life, health, automobile and disability held for the benefit of the parties and their minor child or children;
3. Transferring, encumbering, hypothecating, concealing or in any way disposing of any property, real or personal, whether community or quasi-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;
4. Making non-probate transfers without the consent of the Court. You can, however, revoke a trust once you give notice to the other spouse. You can change a joint tenancy deed to a deed as tenants-in-common, but only after you give notice to the other spouse. You may, however, change your will without consent of the Court or notice to the other party. You must notify each other of any proposed extraordinary expenditures at least five business days prior to incurring these extraordinary expenditures and accounts to the Court for all extraordinary expenditures made after these restraining orders are in effect. However, nothing in the restraining orders shall preclude you from using community property to pay reasonable attorney fees in order to retain legal counsel in the action.
How a dissolution of marriage may affect your rights
A dissolution or annulment of your marriage may automatically cancel your spouse’s rights under your will, trust, retirement benefit plan, power of attorney, pay on debt, bank account, transfer on debts, vehicle registrations, survivorship rights to any property owned in joint tenancy and any other similar issues. It does not automatically cancel your spouse’s rights as beneficiary of your life insurance policy. If these are not the results that you want, you must change your will, trust, account agreement, or other similar documents to reflect your actual wishes.
Dissolution or annulment of your marriage may also automatically cancel your rights under your spouse’s will, trust, retirement benefit plan, power of attorney, pay on debts, bank account, transfer on debts, vehicle registrations, survivorship rights to any property owned in joint tenancy and any other similar issues. It does not automatically cancel your rights as beneficiary of your spouse’s life insurance policy. You should review these matters, as well as any credit cards, other credit accounts, insurance policy, retirement plan benefits, and credit reports to determine whether they should be changed or whether you should take any other action in view of the dissolution or legal separation of your marriage.
Order to Show Cause
After the Petition for Dissolution has been filed, an Order to Show Cause hearing may be scheduled. The purpose of the Order to Show Cause is to obtain temporary orders. These temporary orders may include orders for custody, visitation, child support, spousal support, attorney’s fees and various other orders. If the Court has granted temporary orders, they will remain in effect until the parties have agreed to new orders or until the Court has made new orders.
California Family Code Sections 2014 and 2105 mandate a full disclosure of assets and debts in any dissolution or legal separation proceeding. This means that your spouse and you must disclose all assets and obligations whether separate property or community property and any factors affecting the value of an asset or obligation. A Preliminary Declaration of Disclosure must be served on the other party and the other party must also serve one on you. The Preliminary Declaration of Disclosure consists of a Schedule of Assets and Debts and Income and Expense Declaration. These documents must be exchanged and a Declaration re Proof of Service of Disclosure and Income and Expense Declaration filed with the Court before the Court schedules a Settlement Conference.
Various types of discovery such as Interrogatories, Depositions, and a Request for Production of Documents are available in Family Law. Discovery may be served on either party if more information is needed and was not provided in the Preliminary Declaration of Disclosure.
Status conference/settlement conference
Once the parties have exchanged their Preliminary Declarations of Disclosure, an At-Issue Memorandum may be filed with the Court. This is notice to the Court that the parties are ready to proceed to a Status Conference. At the Status Conference the parties will indicate to the Court whether or not they are ready to schedule a Settlement Conference. If they are ready to proceed, a Settlement Conference date will be set by the Court. The purpose of a Settlement Conference is for the parties to attempt to resolve all of the issues concerning custody, visitation, division of property, payment of debts, child and spousal support and attorney’s fees.
If the parties cannot agree on all issues, the second objective is to agree on as many items as possible so that those items will not need to be litigated at the time of Trial. The fewer items there are to litigate at Trial, the shorter the time for Trial and the less the attorney fee expense for Trial.
Once the matter has been set for Trial, that means the parties have been unable to resolve one or more issues concerning their case. At that point it becomes necessary for the Court to make decisions on these issues. The parties must then present evidence to support their desires for custody and/or visitation or the character or values of the assets and obligations.
If there is a disagreement concerning custody, the parties may want to have the Court appoint a psychologist to do a psychological evaluation and make a recommendation to the Court. If there is a disagreement as to the value of real property, this may require an appraisal by a professional appraiser. If there is a business, a forensic accountant may be appointed by the Court to do an appraisal of the business. The same is true if there is a disagreement concerning retirements plans or household furniture and furnishings.
In making a decision the Court will determine the division of assets and debts, and if unequal, order an equalization payment from one party to the other. Once the Court has made its order concerning the division of property, support, custody, visitation and attorney fees, that order becomes the final order of the Court. If a party disagrees with the Court order there are options available for review, including asking the Court to reconsider (which requires new evidence) or an appeal if the party feels the Court is legally incorrect in its decision.
Transfer of property
Once the Court has made an order the parties are responsible for complying with it. If one party is awarded a specific vehicle the other party should sign off on that vehicle and the vehicle must be transferred into the name of the party who, by Court order, is to receive it. If your spouse is awarded a vehicle in the Court order you must make sure that the proper notice of transfer if filed with the Department of Motor Vehicles. Until this is done you are personally liable if your spouse should be involved in an accident. The same is true in the transfer of real property. If the Court orders one spouse to receive the property, the other spousal should sign an Interspousal Transfer Deed transferring the property pursuant to the terms of the Court’s final orders.
Failure to comply with a court order
If your spouse does not comply with a Court order for the payment of support or the transfer of property, you should immediately notify your attorney so that it can be determined as to what action needs to be taken to ensure compliance.
Until the final Judgment is entered and marital status has been terminated, a spouse may legally be covered under the other spouse’s health insurance plan. However, once the Judgment has been finalized a party should contact their spouse’s employer and make application for medical insurance coverage under COBRA (Consolidated Omnibus Reconciliation Act). COBRA requires all employers to extend continuing health benefits to spouses and members of their families who were previously covered by the employee-spouse’s medical coverage. A suggestion is to contact your spouse’s employer and talk specifically to whomever is in charge of the medical insurance program by the time of the Settlement Conference. You should advise that person that you will be divorced in the near future and that you will be requesting medical insurance under COBRA. In order to be eligible for this insurance you must apply for the medical insurance and must notify the administrator of the medical insurance plan of your spouse’s employer within sixty (60) days from the date your marital status terminates. The amount of time COBRA is offered varies depending on the company so it is extremely important to contact your spouse’s employer immediately upon your marital status terminating.
If your spouse has a retirement, IRA, 401(k) or Defined Benefit pension plan you may be entitled to a portion of that retirement or pension. If either party has retirement/pension that will be considered in the course of the dissolution action they must join the retirement plan/pension plan as a party to the dissolution of marriage action. The effect of the joinder is to notify the pension plan or retirement administrator that they cannot disburse or give the proceeds of the pension plan or retirement to your spouse without an order of the Court first having been made.
If you have been awarded a portion of your spouse’s retirement or pension plan it may be necessary for you to have a Qualified Domestic Relations Order prepared to transfer your portion of the retirement or pension to your name. The preparation of a Qualified Domestic Relations Order is a specialized area of law and the Court may appoint a 730 expert for the preparation of said Order.