Litigation

Background

Litigation is the process by which a matter is brought into a formal court setting where the outcome is often determined by a judicial officer, such as a judge or commissioner. Each party may hire their own attorney who acts as their advocate and protect their interests. Most issues are brought before the Court through motions and court trials where a judge will make divorce-related decisions including spousal support and child custody.

The Process

Initiating the Dissolution of Marriage

In California, the divorce litigation process includes multiple steps. It starts with a spouse (the “Petitioner”) filing a summons and petition for dissolution of marriage with the court. The Petitioner then serves his or her spouse (the “Respondent”) with the summons and petition.

Responding to the Petition for Dissolution

After being served with these documents, the Respondent must file a response to inform the Petitioner and the Court that he or she intends to participate in the process. Failure to timely respond to the summons and petition may result in the Petitioner taking the Respondent’s default. The default may cause the Respondent to be shut out of the divorce proceedings.

Request for Temporary Orders

After initiating the court proceedings, a party may file a request for temporary orders (the “Moving Party”) on various issues such as child custody, parenting time/visitation, child support, spousal support/alimony, attorneys’ fees, and property control. For the Petitioner, he or she may file the request at the same time or after he or she files the petition. For the Respondent, he or she may file the request along with his or her response or after filing the response. After the Moving Party files and serves the request for order and the responding party files and serves his or her response, they each prepare for the hearing. After the hearing, the judge will decide on the temporary requests for orders. The judge may decide immediately after the hearing concludes or he or she may take the matter “under submission” and provide the ruling to the attorneys of each spouse at a later time.

Preliminary Declaration of Disclosure

Within 60 days of the petition for the Petitioner (or within 60days of the response for the Respondent), the Family Code requires that preliminary declaration of disclosure be served on the other party. The disclosure provides information on all of the community and separate property assets, debts, income, and expenses.

The law requires the preliminary declaration of disclosure to be served on your spouse within 60 days of the petition (if you are the petitioner) or within 60 days of the response (if you are the respondent), according to Family Code 2104. The attorneys will work with their clients to identify the areas of the other side’s declaration of disclosure that appear to be incomplete and go through a meet and confer process with the other to request additional information.

Discovery

The parties will begin the “discovery” phase to gather evidence. Discovery is the formal request for information from the other side. Discovery comes in many forms including but not limited to interrogatories (form and special), request for production of documents, requests for admissions and oral depositions. Non-parties may also be subpoenaed for information. If a party refuses to respond to the discovery requests or provides incomplete responses, the attorneys may meet and confer to discuss the failure to provide sufficient responses. If the attorneys cannot resolve these issues, a motion to compel to provide responses or further responses may be filed with the court.

Some divorce cases require the use of one or more experts. Experts may be privately retained, appointed by the Court or mutually agreed-upon by the parties. The most common types of experts used in divorce proceedings are forensic accountants, real estate appraisers, child custody evaluators and vocational evaluators or examiners.

Settlements Negotiations

At any point before trial, the parties may attempt to settle the case. The attorneys will negotiate on behalf of their respective client on various issues such as division of marital debts and assets, child custody and child support, and spousal support. These settlement negotiations may take place at a voluntary settlement conference (usually at one of the attorney’s offices or remotely on Zoom during the COVID-19 pandemic) or with the help of a private mediator. There could also be a mandatory settlement conference at the courthouse. If the negotiations fail, then the case will go to trial, which requires both parties and their attorneys to go to court.

Trial

At the trial, the attorneys will present their cases. This usually includes submitting documents into evidence as well as getting testimony from the parties as well as expert witness testimony, if necessary. After hearing the testimonies and reviewing the evidence, the family law judge will make the final decisions regarding any unresolved issues and that will become a court order. Depending on the complexity of the case, or if there are several unresolved issues, trial could last for several days, or even weeks.

Downsides to Litigation

Litigation is typically more time-consuming (and costly) as it is often the slowest amongst all the options. Many find it to be emotionally draining. It can also be unpredictable as a judge will make the final decisions regarding the issues.

Alternatives to Litigation

Litigation is not the only way to resolve a family law matter. Some cases may be settled without court intervention through alternative dispute resolution such as mediation. In general, mediation is less expensive and far more efficient than litigation or going to court. If two parties are motivated and able to communicate, a divorce can be settled in a matter of weeks at a reasonable cost.

An attorney can also coach and consult a client to handle the divorce on their own, or an attorney can just help you with specific issues (“limited scope”).

When to choose Litigation?

While there are downsides to litigation, it is sometimes unavoidable. In some situations, litigation may be the best option to resolve their case. Examples of when to choose litigation over alternative options are: (1) if there are substance abuse, domestic violence or child safety issues; (2) if one party suffers from severe mental illness that renders them incapable of making good decisions for themselves or their children; and (3) one party is completely unreasonable.