How do we handle divorce cases at The Law Offices of Rick D. Banks?
While every case is different, and not all cases require each of the steps outlined below, this is a list of what we normally do at our firm when preparing your divorce case, and, if necessary, trying the case.
- Initial client interview: evaluate the client’s case, educate client regarding the legal process for divorce cases, and determine any deadlines that apply.
- Contact the opposing party or their attorney, giving them notice of our representation.
- File the divorce petition and serve the opposing party, or answer the divorce petition filed by the opposing party.
- Serve discovery requests(formal requests for documents and other information regarding assets, debts, child custody issues, history of the opposing party, etc.) on the opposing party or their attorney.
- Answer any discovery requests served on our client by the opposing party.
- Gather all evidence related to the case, including assets, debts, marital history and child custody issues.
- Interview witnesses, if appropriate.
- Obtain testimony from the opposing party and any other witnesses as necessary via deposition.
- Analyze the legal issues related to the case, including financial and custody issues.
- Prepare for any temporary orders which may be needed to govern the conduct of the parties while the case is pending and conduct a hearing regarding such orders if necessary.
- Prepare client for court-ordered mediation if child custody and/or child visitation issues cannot be settled.
- If mediation is unsuccessful, set the case for trial.
- Prepare exhibits to be used at trial.
- Prepare and file any necessary briefs and motions with the court.
- Prepare the client and any witnesses for trial.
- Try the case before a judge.
- Review the court’s rulings to see if either party has grounds for appeal.
- Advise the client as to whether or not they should appeal the case (note that our contract with you does not obligate us to appeal your case).
How do we start the divorce process?
A divorce is a civil lawsuit, and it begins like any other civil lawsuit. We prepare a “petition” asking for a divorce. We file this petition, along with a “summons” with the court clerk’s office in the appropriate county. Then, have the opposing party served with the summons and petition.
If the other side files the suit and serves you with the summons and petition, we prepare an “answer” which we file with the court clerk and then serve on the opposing party. It does not matter who files for divorce first and there is no advantage to being the “first one to the courthouse”. However, remember that once you are served, you must file an answer within a certain time in order to prevent the other side from seeking a “default judgment” against you.
The parties usually will need “temporary orders” to be entered with the court to govern their behavior and/or to establish support amounts and/or set custody/visitation arrangements while the divorce is pending. These orders can be negotiated by the parties and their attorneys, or the court may hold a hearing to determine the terms of the order.
What happens after the lawsuit is filed?
After a lawsuit is filed, both sides usually send each other “discovery” requests (mentioned earlier). We usually serve formal discovery requests on the other party along with our petition or our answer, which must be answered by the opposing party within a certain amount of time. These are written questions about assets, debts, children issues, marital and other history of the parties and requests for documentation related to all of the above. Full financial disclosure is required by law, and each side is allowed to discover what assets and debts exist. Occasionally, you may also have to give sworn testimony at a deposition. We are allowed to find out all of the above information about the opposing party as well.
After discovery is complete, we normally file an “at-issue” memorandum with the clerk’s office, which lets the court know that we are ready to have the case heard by the judge. We then schedule the case for a “4-way” meeting to see if it can be resolved without a trial. A 4-way meeting is where the parties and their attorneys get together and try to resolve as many issues as they can before going to trial.
If the 4-way meeting is unsuccessful all of the issues, the parties and the attorneys go to a settlement conference hearing. There, the judge will usually offer to assist the parties resolve any remaining issues, and if they cannot resolve all of the remaining issues, a trial is held before a judge. After the trial is over, the parties review the result to determine if an appeal is recommended.
How long does it take to get divorced in California?
Under California law there is a statutory “waiting period” of six months before the parties to a dissolution proceeding are legally returned to the status of single persons. The parties may not remarry until this waiting period has expired. In our practice we have found that most divorces require anywhere from six to nine months. However, depending on the complexity of the case and whether the parties can agree on major issues, it could take one year or even much more to resolve the divorce. It is almost always in the parties’ best interest to resolve the case by agreement as quickly as possible in order avoid excessive legal fees and keep the time spent dealing with the divorce to a minimum. This allows both parties to save more of their money, reduces the emotional stress and allows the parties to move on with their lives as quickly as possible. A quick resolution will almost certainly help lessen the trauma on the parties’ children.