Whether your Divorce case requires vigorous negotiation, divorce mediation, or aggressive representation at trial, trust in Woodman Garcia-Sepulveda in Redwood City. Divorce family law attorneys with the legal knowledge and courtroom experience to protect you. Below, you will find our Divorce Trial Preparation Guide design to help answer some of the questions related to a divorce trial.
Flora Garcia-Sepulveda, a founding partner of Woodman & Garcia-Sepulveda and a Certified Family Law Specialist, is an experienced trial lawyer who practices family law exclusively, focusing on diverse financial issues including business valuation, property division and child and spousal support. Ms. Garcia-Sepulveda is fluent in Spanish. Ms. Garcia-Sepulveda also represents clients in difficult custody disputes and move-away cases.
Divorce trial preparation is often complex and overwhelming. From contentious divorces to amicable settlements, anyone going through the dissolution of a marriage should seek effective representation. At Woodman Garcia-Sepulveda (WGS), we specialize in divorce and family law, giving you the knowledge and experience needed to protect your interests.
Every divorce involves different circumstances. Yet, they all have one thing in common. You need to complete certain divorce trial preparation steps. Taking the time to prepare and explore options increases your ability to win a California divorce trial.
A divorce trial typically occurs when spouses do not agree on some or all of the issues related to the divorce, such as the division of assets or child custody. As with other types of trials, divorce trials follow specific procedures and must comply with a wide range of laws. Both parties present evidence and give testimony.
A divorce trial is initiated by a spouse through a court filing. In most cases, the spouses work with lawyers who file court documents on their behalf.
The outcome of the trial is legally binding. Both parties must follow the decisions of the court going forward, which may involve the division of assets and child custody outcomes.
A divorce settlement is often considered the preferred outcome, but each divorce has unique circumstances. A settlement may not always provide a fair division of assets.
In California, spouses may submit a marriage settlement agreement (MSA). The MSA is a document that outlines how you and your spouse plan on settling your marriage. It often covers the following topics:
The document needs to include identifying facts of the marriage, including the dates of marriage and separation. After both spouses sign and date the document, it is submitted to the court for review by a judge. The judge must sign off on the marriage settlement agreement for it to become official.
The division of property and child custody concerns can be complex. However, over 90% of divorce cases are settled without going to trial.
Divorces go to trial when spouses dispute one or more issues. In some cases, spouses settle on most issues and go to trial to resolve the remaining conflicts.
Either you or your spouse needs to be a resident of California and the county where you file the case. You must reside in the county for at least three months and the state for at least six months.
If you do not meet the requirements, you may file for legal separation. California Form FL-100 is used to begin the process. After submitting the form, you need to serve your spouse with the paperwork.
After filing for legal separation, you may wait until you meet the residency requirements and file an amended petition for divorce.
Divorces in California are considered no-fault divorces, which means that you do not need to provide a reason for the divorce or prove wrongdoing by your spouse.
If you meet the residency requirements, you can file for divorce in the superior court of the county where you reside. The spouse who files the petition for divorce is called the petitioner. The petitioner serves the other spouse (the respondent) with copies of the divorce petition.
A divorce trial typically starts with a pretrial conference. The spouses and their lawyers meet before a judge to discuss the details of the case and determine if it is ready to proceed to trial.
Before trial, both parties typically prepare financial affidavits, exchange disclosures of evidence, and complete trial depositions.
Many counties in California have laws and procedures for divorce trials that may vary from one another. However, the process often requires a spouse to file a document called “at issue memorandum.”
An at-issue memorandum is a legal document that states all parties involved in the case have been served. It also states that the parties are “at issue” over topics that need to be resolved through a trial. The document is basically a statement acknowledging that the case is ready for trial.
The judge may then set a date for trial or schedule a settlement conference. The conference is an attempt to settle on issues and avoid the need for a trial. The judge may also provide insight and advice for settling.
If the spouses do not settle all issues of the divorce, a trial date is set. The trial is held in a public courtroom in front of a judge. Both spouses, their lawyers, and witnesses attend the trial.
The trial often includes the following stages:
Both parties may make opening statements at the start of the trial. This allows the lawyers to provide an overview of the issues of the case. Your lawyer will explain your point of view by explaining what you want to achieve from the trial.
After the opening statements, the petitioner begins calling witnesses to support their side of the case. Witnesses may include the petitioner, the respondent, family members, and various third-party witnesses and expert witnesses. Each side also has the chance to cross-examine witnesses.
Evidence is introduced throughout the trial to support the details of the case. After the petitioner finishes with their witnesses and evidence, the respondent has their chance to call witnesses and present evidence.
After the respondent rests their case, the petitioner receives the chance for rebuttal. Both sides then present their closing arguments. The closing arguments allow the lawyers to reinforce their key points and evidence.
The judge then decides on the issues presented to the court in the divorce petition. The judge’s decisions are issued in a written order. The written order is sent to both parties and becomes part of the public records.
Both parties can then review the order with their lawyers. If either party disagrees with the judge’s decisions, they may appeal one or more parts of the written order. Appeals are handled through the appellate court.
Divorce hearings are often used to provide temporary court orders before the divorce is finalized. Each hearing may focus on resolving a single dispute or issue related to the divorce, such as child custody and visitation, child support, alimony, or living arrangements.
Both sides present evidence and testimony. The judge then issues a temporary order. Divorce hearings are often used to address emergency matters.
For example, one spouse may not feel safe or comfortable waiting until trial to resolve child custody arrangements. A temporary order can provide a suitable solution for dealing with these situations for the time being.
Temporary orders typically remain in place until the final judgment from the divorce trial. Keep in mind that a temporary order may not always predict the outcome of a trial. After reviewing evidence and testimony during the trial, a judge may rule differently on issues decided during the earlier hearings.
As part of your divorce trial preparation, you should consider whether you qualify for a summary dissolution. A summary dissolution allows for a quicker dissolution of a marriage without the need to go to trial. However, it only applies to couples who meet specific requirements:
A summary dissolution occurs when a married couple files a joint petition in the California county where one or both spouses reside. The petition needs to include a declaration of disclosure, tax returns from the past two years, and other documents. The paperwork is submitted to the court clerk.
Couples who meet all requirements will receive a judgment of dissolution. The date of divorce will be listed as six months from the date that you filed the joint petition.
Divorce trials are public. Any member of the public can attend a divorce trial in the state of California. Hiring a private judge may offer more privacy. A private judge is retained as a neutral third party to hear the case and make rulings on contested issues.
Under Rule 1-710 of the California Rules of Professional Conduct, temporary judges are subject to the Code of Judicial Ethics to Canon 6D, which means that they must comply with all formal rules of the court.
As with a public divorce trial in California, the private judge oversees the proceedings. They hear testimony and review evidence before making decisions. When retaining a private judge, both parties agree to accept the judge’s decisions as binding.
Public divorce trials are held in public courtrooms. Private judges often oversee the trial in private settings, which keeps random members of the public from attending. However, working with a private judge can be costly.
Private judges are typically retained by high-profile individuals who want to keep their divorces as private as possible. They are willing to deal with the potential risks of a private divorce to maintain their privacy. For most individuals dealing with divorce, a public trial helps ensure a fair and impartial ruling.
Divorce trials are “bench trials” in the state of California, which means that a judge presides over the trial. There is no jury. The judge is responsible for deciding on all issues of the case.
In Texas and Georgia, residents have the right to request a jury trial. This right does not exist in California and most other states.
Delays can occur during a divorce trial in California. It is not uncommon for a trial to start slightly later than planned. Judges may hear two or more trials during a single day. If your trial is scheduled for the afternoon, an earlier case could push back the start time.
Divorce trials that last more than one day may also experience scheduling delays. Lengthy trials make it harder for the judge, lawyers, and court systems to find a suitable time that works for everyone.
Some divorce trials are completed in a single day while others require multiple days in court. After filing a divorce petition, (and depending on each situation) A trial can take months or even years to be schedule. We strongly recommend hiring an attorney to mediate, negotiate the divorce.
Before going to trial, you need to complete the mandatory settlement conference. Trials typically occur about two weeks after the conference. However, short trials may be scheduled within a few days.
A short trial is a trial that involves a minimal number of contested issues to litigate. For example, you and your spouse may agree on most issues but need the judge to rule on one remaining detail.
California is a “community property” state. You and your spouse are considered a single entity during your marriage and any property or assets acquired are considered community property.
Property, assets, and debts are divided equally between spouses. However, this does not apply to separate property.
Property and assets acquired before your marriage are considered separate property. It is not split between you and your spouse. Gifts and inheritances are also separate property.
You also keep any property or assets acquired with gifts or inheritances. For example, you received a $5,000 inheritance during your marriage and used it to buy something. The purchase would remain separate property.
California is also a no-fault state. Judges do not consider fault when dividing assets. Adultery and other harmful behavior do not impact the division of assets and property.
As a no-fault state, you do not need to prove fault to petition for divorce. A judge cannot deny your petition unless you fail to meet the filing requirements.
For example, you may omit required information or provide incorrect details. If there are any discrepancies in your filing, a judge or the court clerk may reject the petition. This is one of many reasons why working with a lawyer who specializes in family law is the preferred approach for dealing with a divorce.
Your lawyer walks you through every detail to ensure that your petition is accurate and complete.
Contacting an attorney is the first step for divorce trial preparation. You should be aware of your rights and responsibilities before moving forward with the divorce.
Depending on the issues that require litigation, you may need a wide range of supporting documents, paperwork, and witnesses to support your side of the case. Gathering the required documents as soon as possible helps your attorneys prepare the right strategy for trial.
Some of the documents and information that you may need to supply include:
Your lawyer will also typically prepare a trial brief before the trial. The trial brief includes a complete overview of the details of the case, including:
Divorce Trial Preparation Tip: You should consider all the issues involved in a divorce, including the division of property, assets, debts, and child custody. Spousal support and child support may also need to be addressed.
In California, community property is divided equally between spouses. This includes houses, vehicles, and other assets. You may sell certain items and divide the proceeds. For items that you do not intend to sell, one spouse typically needs to buy out the other’s share.
For example, you and your spouse may agree that you keep the house. However, your spouse is entitled to half of the property. Your spouse may then receive additional assets from other community property equal to one-half of the value of the house.
Depending on the current state of the relationship, you and your spouse may come to terms with most of the issues involved in a divorce. For any of the issues that you cannot agree on, begin compiling supporting documents and evidence to back your claim.
The evidence submitted during a divorce trial is used to prove your point of view. Evidence may include testimonies, photos, videos, and documents.
Both spouses typically need to provide evidence of income, expenses, and all other financial activity. Complete financial disclosures are needed to help address the division of property.
When it comes to the division of property, spouses may dispute whether an asset should be considered community property or separate property. In most cases, the distinction between community property and separate property is clear.
Separate property is any property that you obtain before your marriage. However, your spouse may dispute the date when an item was purchased or where the funds came from. For example, if you purchased an item using money obtained as a gift or inheritance, you may need to provide documentation showing how you used separate money to complete the transaction.
Evidence may also be required to resolve child custody or visitation issues. This evidence may include testimony from childcare workers or the children themselves. Parents may use photos, videos, or witness statements to support claims that the other spouse is unfit for unsupervised visitation or partial custody.
Do not dismiss any evidence that may help support your position on the issues contested during the divorce trial. Gather any related documents and present the information to your lawyers. They can help determine the relevance and value of the evidence for your case.
After a judge issues a written order, the final judgment must be carried out. This may include the division of assets, spousal support payments, child support payments, and child custody arrangements.
Both sides have the right to appeal the final judgment. If you do not agree with the outcome of the trial, you can submit a notice of appeal to the superior court of California.
The details discussed are just the tip of the iceberg when it comes to a divorce trial. Overlooking any evidence or court requirements may result in an unfavorable outcome.
Keep in mind that your spouse is likely to retain an attorney. If you choose to represent yourself, you are at a major disadvantage.
You may also find it difficult to give your trial the focus that it requires when dealing with the stress and emotions of the situation. Divorces move to trial when spouses cannot amicably agree on the division of property or how to handle child custody. A divorce trial is often a long process, which adds to the stress.
The bottom line is that obtaining legal representation is highly recommended. Your attorney guides you through every stage of the divorce process, helping you prepare for trial and increasing your chances of receiving the best possible outcome.
If you need help with this Divorce Trial Preparation Guide and are looking for a highly competent and extremely caring family law attorney who has the skills and experience to really solve your problem, please contact Woodman Garcia-Sepulveda today!
