If you are seeking counsel in San Diego City, San Diego County in California, concerning a legal separation, our lawyers can help you and your spouse or partner work to resolve property division issues including the valuation and distribution of your community property estate and joint assets and also your parenting plan and custody and visitation arrangements and orders. We can also represent you in child and spousal support matters.
In California, either party may file for a legal separation and the procedure is the same as for a divorce with some notable exceptions. First, there is not a termination of the marital status. This means that neither party may ever re marry without first filing another action for a divorce. In addition, this does allow either party to continue to obtain health insurance benefits, in most employment plans, since the parties are not legally divorced. The procedures are, in essence, the same as a divorce and listed below in summary. First, the Petition and Summons are filed and this is what gives the Court power and authority to make orders regarding the community property estate as well as custody and visitation and support and other orders. In these case, normally 120-150 days after the filing of the petition and summons, the Court will set a Case Classification Conference. At this Case Classification Conference, the Court will decide whether this is a “managed” case. This is a decision made by the Court. After the Case Classification Conference, the Court will set a Case Management Conference. At the Case Management Conference, the Court will determine whether all of the discovery has been completed [written interrogatories, production of documents, requests for admissions, depositions and transcripts and any others] or when the discovery will be completed and the case ready for trial. If the discovery is not completed, the Court will set a discovery cut off date. This may be 60 or 90 days or even more in the future.
Once the Case Management Conference is completed and the discovery is finalized, then the case is ready for trial. The Court will normally set a Mandatory Settlement Conference prior to trial and this is where a Judge Pro Tem or a sitting Judicial Officer will hear the case and try and settle so that a Trial can be avoided. Only a small percentage of cases go to trial and it is almost never in the client’s best interests financially to spend their children’s undergraduate educational expenses on attorneys and costs and fees. At the Mandatory Settlement Conference, the parties will have an opportunity to present their legal positions on all of the issues: custody; visitation; child support; spousal support; attorney fees and costs; division of assets and debts and any other issues that are in their divorce case. If the case does not settle at the Mandatory Settlement Conference then the case will be set for Trial. All order in the case are temporary pending the Trial or agreement of the parties. Most cases will settle by a Marriage Settlement Agreement which is a document which incorporates all of the terms and conditions of the divorce settlement: custody; visitation; child support; spousal support; division of assets and debts and any other issues. At the Trial, either party may call witnesses and use the power of the subpoena to force witnesses to come to court and testify.
In addition, documents may be submitted however there are very strict rules in each location for the filing of the trial brief and documents. Many are placed before the Court in the Trial Notebook or as a Notice of Lodgement. Trials are live testimony in front of the Judge with both direct and cross examination. In each case, there must be compliance with the mandatory preliminary declarations of disclosure. In San Diego, and statewide, this is comprised of two forms: Income and Expense Declaration and Schedule of Assets and Debts. In the Income and Expense Declaration, there are strict rules for disclosing all income. For parties who are employees, the three last paystubs must be attached. For self employed parties, there needs to be tax information given. In all cases, the social security number is redacted. In addition, to complete the mandatory preliminary declaration of disclosure there must be service on the opposing party and proof of service filed with the Court. The Income and Expense Declaration is filed with the Court however the Schedule of Assets and Debts is not normally filed with the Court. This is mandatory and a judgment cannot be obtained in San Diego County without the proof of service of the preliminary declarations of disclosure. At the conclusion, the parties have a judgment for legal separation.
Contact Us Online or call us at 858-312-8500 in Southern California. We will be pleased to offer you a complimentary and confidential consultation up to a length of 30 minutes to discuss strategies and techniques to assist in protecting your rights and trying to obtain your legal goals.
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