Procedural Posture for Your Family Law Case in San Diego Superior Court in 2015: Divorce & Legal Separation: Part Two
In some cases, one or both parties may want temporary orders. A legal motion [request for order] needs to be filed and served with the mandatory pleadings. These can be very complicated and assistance can be obtained at the Family Law Facilitator which has offices in each of the family law court houses except Madge Bradley. If the Judge orders, then these are temporary pending final judgment. If the motion is for a parenting plan, then there will be a mandatory mediation date and a court date. These pleadings need to be served as soon as possible since there are sanctions for missing the mediation date and non service resulting in a non appearance by the other parent without a cancellation will result in another family not being able to be seen at that time. The San Diego Superior Court Judges routinely explain to the parties that their non appearance, without legal good cause, can result in sanctions. This is also due to the time it can take from filing the motion until not only the court hearing but the mediation with the Licensed Clinical Social Worker at Family Court Services. It is not uncommon from, date of filing of the motion, to have the mediation more than 30 days and the hearing more than 60 days and may be even longer. As such, if you need temporary orders for your parenting plan, support, attorney fees or exclusive use of a residence or vehicle, it is imperative that you file as soon as possible. Filing for support will also allow for retroactivity to the filing date. For example, if you filed on January 2, 2015 and your hearing was on March 2, 2015, the Judge has the discretion to order the support as of January 2, 2015 which protects the payee’s rights. When this happens, this is referred to as an “arrear”.PRELIMINARY AND FINAL DECLARATIONS OF DISCLOSURE
The preliminary declarations of disclosure are mandatory. The parties have a fiduciary duty to disclose all assets. These include the below:
community property assets which are acquired from date of marriage to date of separation
separate property assets which are acquired before date of marriage or after date of separation
quasi community assets which are acquired from date of marriage to date of separation but which are not located in California.
There are two mandatory judicial council forms which make up the preliminary and final declaration of disclosure. The preliminary is mandatory and cannot be waived by the parties. The final is not mandatory and can be waived by the parties in their settlement.
The first judicial council form for the preliminary declaration of disclosure is the income and expense declaration. The second judicial council form for the preliminary declaration of disclosure is the schedule of assets and debts. Both forms require documents to attach for the disclosure.MANDATORY SETTLEMENT CONFERENCE
A mandatory settlement conference is set before a trial. This is why a Judge is assigned [either Bench Officer or Private Attorney in San Diego] to see if the case can be settled before trial. A Mandatory Settlement Conference Brief is required and is a judicial council form. There are many attachments to this Brief and, also, a legal Points and Authorities is often recommended.TRIAL
If there is no alternative, then the parties go to trial. Trial is very expensive and time consuming and not a recommended strategy. At a trial, a Trial Brief is required and this is similar to the Mandatory Settlement Conference Brief.MARRIAGE SETTLEMENT AGREEMENTS
Most cases will settle with a Marriage Settlement Agreement. This is a pleading which contains the division of assets, division of debts, spousal support, child support, custody, visitation and any other issues. The Marriage Settlement Agreement is submitted to the Court for filing with the additional mandatory judgment pleadings. The Marriage Settlement Agreement may need to be notarized if there is real property. Make sure to check the current requirements before submitting since it can take weeks or months for a rejection and then the document[s] have to be revised and resubmitted and this can cause a delay.JUDGMENT
The Judgment is the final document [and goal] of parties in a family law case. Once the Judgment is entered, then the case is over. Be very careful not to remarry before the Judgment is entered and, on the Judgment form, there is a date when the parties are legally eligible to remarry.POST JUDGMENT MOTIONS
In some cases, there are post judgment motions filed. One example is a motion to set aside the Judgment under Family Law Code Section 2122. Another example is when one of the parties wants to modify the Judgment terms and conditions however these are limited to custody, visitation, child and spousal support as the norm.
Part One of the Article discussed the following:
- FILING THE PETITION IN A LEGAL SEPARATION OR DIVORCE CASE IN SAN DIEGO
- SERVING THE PETITION IN A DIVORCE OR LEGAL SEPARATION CASE IN SAN DIEGO
- FILING AND SERVING THE RESPONSE
- STATUS CONFERENCE
- FAMILY RESOLUTION CONFERENCE
The law firm of Doppelt and Forney, APLC can represent you in your pending family law case in San Diego. Feel free to contact their office for your personal consultation which is at no charge and confidential.