Summary Of Typical Family Law Proceedings

 

As we begin, this provides you a summary of family law proceedings. This summarizes the typical progress of a “new” (pre-judgment) family law case. Of course, every client faces a different situation. As such, this is necessarily written in a basic manner.

Because the concepts often have more complex and nuanced applications in actual practice, this should not be relied upon in relation to any particular issue or proceeding.

Beginning the Legal Process

A basic form Petition is filed by one party, who is thereafter known as the “Petitioner.” The other party is the “Respondent.” The Petition is served on the Respondent with a court form called the Summons. That notifies the Respondent that an action has been filed and that they need to engage in the process.

Initial Orders

Early in a case, we typically seek initial temporary (“pendente lite” or “pending the litigation”) written orders toward establishing basic structures for the parties and their children as their world substantially changes. Issues can include support, custody and “visitation”1 where children are involved, the temporary use of assets, payment of respective and joint expenses, attorney’s fees, and restraining orders of one type or another. We endeavor to keep matters out of court where reasonably possible, so our initial push in non-emergency situations is usually for stipulated (“agreed-upon”) orders.

1 “Visitation” is an outdated term that is unfortunately still often used. We prefer in most cases to refrain from characterizing children’s spending time with parents as “visiting” them. Rather, we prefer to speak in terms of parental “timeshare” with children.

Initial orders are intended to last until further modified orders might be proper including at a case’s ultimate resolution, through either settlement or trial.

If the parties cannot stipulate to initial orders, then one or the other (or sometimes both!) party may file a Request for Orders (“RFO”) with the court. An RFO begins the court process toward gaining court-generated orders. Typically, a hearing on an RFO is set approximately
thirty days from filing (the wait is often longer, though, where custody and parenting issues might warrant an interim custody mediation, discussed below). Where time might be particularly of the essence, orders on an RFO can be sought on an “emergency”2 or else “shortened time” basis.

Multiple types of pendente lite orders are often required throughout the course of a case.

“Discovery” Stage

“Discovery” is just that … each side has the opportunity to “discover” (learn) the facts of the case, and to “box in” the other side to a specific set of facts. General topics include:

  • What is the scope of your, my and our property?
  • Does property belong to both parties (“community property”) or to only one party (their “separate property”), or is it a combination?
  • What are the income and expenses of each party?
  • What are the circumstances regarding custody?

Toward economizing, we encourage “informal” (voluntary) exchanges of discovery. To an extent, this is already required between parties in a marital dissolution action. That is because they have ongoing “fiduciary” duties to each other. That means that they have ongoing highest duties of care to the other until the case’s end.

In many instances, however, formal discovery is required. As examples, we may need to subpoena copies of bank records, employment records, medical records, etc. directly from banks, employers, or other third parties. Depositions may be conducted, where parties and witnesses would be asked questions in a “live” setting while under oath. Written demands for production of documents, “interrogatories” (often standard written questions) and requests for admissions of facts could be issued.

Emergency orders can usually be sought on a two-three day timeline. The process is often referred to as “ex parte,” meaning “no notice” to the other side. In reality, the law usually requires at least some limited notice must be given. The rules governing this are clear and specific, toward preventing parties from abusing the “ex parte” process.

Settlement

We are committed to actively attempting to settle all our cases. We routinely seek opportunities to do so.

Both parties are obligated to attempt settlement prior to scheduling a trial. Once we have sufficient information, we may propose (or receive) settlement offers. The two sides may exchange several offers before the parties might be able to come to a final agreement. This can be done through correspondence, which is often our preference since written letters help avoid the misunderstandings that can arise through oral conversations (although this certainly does not preclude “simply talking” when appropriate!).

The court at some point could schedule a “Mandatory Settlement Conference” (“MSC”), which parties and counsel must attend at the courthouse. We often suggest global case mediations through highly qualified mediators (not so many are sufficiently qualified). If a settlement agreement can be reached, we carefully document it in writing. This often leads to some further “back and forth” before both parties and counsel are truly ready to sign.

Trial

In the event that settlement is not accomplished, trial remains as an ultimate path to resolution. Trial would typically encompass a formal proceeding, with witnesses and exhibits. Trial can take mere hours or else multiple days and weeks, depending on the issues and the parties. It is because we are experienced and well-prepared to take any matter to trial that we settle approximately 95% of all our cases – the other side knows what we can do, and so they more often than not “blink” even when trial might seem inevitable.

Final Resolution

Whether through a settlement or else trial, a case’s resolution is formalized through a “judgment.” Under law, a variety of forms and other documents accompany most judgments. As issues in a case can be broken-out into separate settlements and trials, separate partial judgments can result. Typically, though, cases are totally wrapped-up all at once.

Attendant to the entry of judgment, “loose ends” usually must be resolved. If inter- spousal real property transfers are required, the deeds must be notarized and properly recorded. A division of retirement benefits requires the preparation of a Qualified Domestic Relations Order (“QDRO”), which must be served on the retirement plan. We typically see other post- judgment tasks, and we routinely ensure that they are accomplished as part of our overall service.
Post-judgment Steps

A variety of post-judgment proceedings can still arise. Orders regarding custody, parenting, and child support are always subject to modification if the circumstances surrounding the original order have changed. Spousal support orders are often modifiable for the same
reasons. The court is available to resolve further disputes. It also typically retains jurisdiction to enforce prior judgments and orders.

 

See Also: Practical Ways To Protect Yourself And Keep Your Sanity In A Family Law Case

 
Certified Specialist, Family Law,
The California Board of Legal Specialization of the State Bar of California 
Fellow of the American Academy of Matrimonial Lawyers
Fellow of the International Academy of Family Lawyers 
Writer’s direct email: gherring@theherringlawgroup.com