Chapter Six: What Does Procedural Posture Mean and why is it so Important to My Case?

In family law in San Diego, the procedural posture of your case will determine your rights under the law and what strategies you can implement and which are appropriate.

To start a divorce, legal separation or paternity case, you must file the petition and summons {and all other mandatory pleadings} in the court house in which you or your spouse are residents. In San Diego, you must be a resident of California for six months and the County of San Diego for three months in order to file for a dissolution or paternity in San Diego County however there is no such requirement for a legal separation. This gives the Court power and authority and jurisdiction to make orders you would like as long as in accordance with the law.

In a case for divorce and legal separation, this also results in the issuance of automatic temporary restraining orders for non sale or non transfer of assets and accounts and also prevents children from being removed from the State of California without an order or written agreement of the parties.

In a paternity case, the same restrictions to removal of the children from the State of California apply. In addition, if the case is pre judgment, then you have more rights than if the case is post judgment since the right to a trial only applies pre judgment.

There are no jury trials in family law in San Diego and all trials are heard by a Judge. If the case is post judgment, normally, a change of circumstances needs to occur for a Judge to modify an existing order and there is no right to a trial. Furthermore, if the case is pre judgment, your discovery options are much broader than post judgment and this is discussed in more detail below.

If your case is pre judgment, then the procedural posture will normally follow this example: filing of petition and summons; service of petition and summons; responsive pleadings filed and served; order to show cause for temporary orders such as custody, visitation, spousal support, child support, temporary exclusive use of the residence and/or vehicles and attorney fees; status conference; case management conference; mandatory settlement conference and trial. Most cases do not go to trial and over 90% settle without a trial and many cases also settle with no court hearings and without the need for the entire above procedural posture however it is very important to understand this since your rights are determined by which procedural posture stage your case is in.

In addition, if your case is post judgment, there are strict time periods in which you can ask the Judge to set aside the judgment if you do not feel it was in accordance with the law. This is a very complicated procedure and will not be discussed in detail in this book however all of the grounds and time periods are contained in Family Law Code Section 2122. I would be pleased to send you a copy of this Code section by e mail at no charge to you if this is your situation procedurally.

>> Chapter Seven: Where Are The Court Houses For Family Law And What Are The Hours And Holidays