Your Top Questions Answered About Divorce Legal & Paperwork Issues
FAQ Index
- Can my Mediator handle all the paperwork for us?
- What papers does the Court require in a divorce or Family Law case?
- Do we need to agree before filing the Divorce Petition?
- Does it make a difference who files the Divorce Petition?
- What is the filing fee for a divorce?
- How does the Petition get to the other person?
- What does the other person do after receiving the Divorce Petition?
- Is there a waiting period before the divorce can be finalized?
- What happens after 6 months if we haven’t filed an Agreement?
- How is Child Support set in a Divorce or Family Law case?
- How long does a divorce take?
- How is property divided?
- How is custody decided?
- If we can’t settle, can I tell the judge my story and let the judge decide?
FAQs
Can my Mediator handle all the paperwork for us?
Yes, Peace Talks Mediation can prepare, file, and serve all the necessary paperwork for you for a flat fee. We have both an attorney and a paralegal on staff. If you prefer, you have other options for filing the paperwork. You can do it yourself, hire a paralegal or document preparation service, or hire another lawyer to prepare the paperwork for you. Either way, the basic procedure is the same.
What papers does the Court require in a divorce or Family Law case?
Every divorce starts with a Petition. The Petition ‘package’ is a set of papers that lists, among other things:
- Your address
- The date of your marriage
- The names and birthdates of your children
- An extremely basic outline of your property
- Whether you’d like spousal support
- Name change
You can amend the Petition later if you change your mind about any of these items.
Do we need to agree before filing the Divorce Petition?
It isn’t necessary to reach an agreement before the Petition is filed. Many people file the Petition before they even start mediation. This is because California has a mandatory 6 month waiting period to finalize a divorce, leaving plenty of time to negotiate an agreement. The Petition contains only basic information, which can be amended later. Because of this, in mediation, the Petition’s purpose is to open your file with the Court and get the waiting period started.
Does it make a difference who files the Divorce Petition?
It doesn’t make much difference who files the Petition. Legally, the difference between the Petitioner (the person who files the Petition) and the Respondent (the person who receives the Petition) is very subtle. For example, in the event of a trial, the Petitioner gets to choose whether to be the first to testify in court. As a practical matter, over 98% of all divorce cases settle before a trial. So in most cases, legally, it doesn’t matter who files the Petition.
It may make a difference to you emotionally who files the Petition, however, because the Petitioner is the person who is legally asking the Court for the divorce. For many couples, this is an emotionally meaningful decision.
What is the filing fee for a divorce?
The Court’s filing fee for the Petition in Los Angeles County is $435 payable to the “Clerk of the Superior Court.” The filing fee is different in different counties, and it changes from time to time. Always double-check the fee on your local court’s website before filing your Petition.
How does the Petition get to the other person?
Once the Petition package is filed with the court, it must be served to the Respondent (the person receiving the petition). The service process can be done by mail. When the Respondent receives the Petition in the mail, they simply sign a receipt that says they received the papers. This receipt is called a Notice and Acknowledgment of Receipt. It merely states that the Respondent received the papers — not that they agree with the papers or the divorce in general.
If the Respondent will not sign the Notice and Acknowledgment of Receipt, they need to be served with the papers. Typically, an Attorney Service is hired to serve the papers. This costs between $50 and $200, depending on how difficult it is to find the Respondent to deliver the papers.
Obviously, signing the Notice and Acknowledgement of Receipt is easier, faster, and cheaper than having the Respondent served. It’s also more private and less embarrassing.
What does the other person do after receiving the Divorce Petition?
Once the Petition papers are served, the Respondent has 30 days to file a Response. The Response is basically the same as the Petition; only it’s filed by the Respondent. The Court’s filing fee for the Response in Los Angeles County is $435 payable to the “Clerk of the Superior Court.”
Many clients decide not to bother with a response in mediation if it looks as though an agreement will be reached soon. The court’s Response filing fee is then paid when the agreement is filed, since no Response has been filed. At Peace Talks, we encourage Clients to file a response and prepare it along with the Petition for one flat fee.
Is there a waiting period before the divorce can be finalized?
California has a mandatory 6-month waiting period, or “cooling off” period. The waiting period begins on the day that the Respondent signs the Notice and Acknowledgment of Receipt indicating he or she received the papers, or the day that the Respondent is served with the papers (whichever applies).
Once an agreement is reached, it can be signed and filed with the Court before the 6 month waiting period expires, and the Court will (generally) pre-approve the agreement. You won’t be officially divorced until the 6 months is over. But you can start living by your agreement while you wait for the official Notice of Entry of Judgment to be mailed from the Court stating that you are officially divorced.
Typically, the Los Angeles Superior Court takes 3 months to review Agreements and enter them into the Court records. Most people file their agreement as soon as it’s ready rather than waiting for the 6 months to expire.
What happens after 6 months if we haven’t filed an Agreement?
Nothing happens. If no agreement is reached, the 6 month waiting period will simply pass without anything happening. If you want or need the Court to take action, it is up to you to make a request of the Court to take action. Nothing happens automatically.
If you haven’t reached an agreement, and you are no longer in mediation, you may need to file a Motion or Request for Trial Setting in Court to force the next step in your case to happen. You will probably want to speak to an attorney to find out more, in the event that you need to take steps outside the mediation process.
How is Child Support set in a Divorce or Family Law case?
California law sets the child support amount based on you and your spouse’s (or other parent’s income, if you’re not married) incomes after federal taxes, state taxes, social security, and other mandatory deductions. Income includes overtime, bonuses, commissions, and unemployment.
Peace Talks uses a court-approved computer program to calculate the guideline child support. We can run these calculations for you in your mediation session if you wish.
How long does a divorce take?
California’s mandatory waiting period is 6 months from the date the divorce complaint is served.
How is property divided?
California is a community property state. This means that virtually everything accumulated during your marriage will be divided equally between the two of you, with a few exceptions.
How is custody decided?
Custody is decided based on the best interests of your children on a case-by-case basis.
The judge considers factors such as:
- The relationship you each have with the children
- Which parent will encourage more education
- Visitation with the other parent and their family
- Which parent has a more stable home life to offer a child
Because the standard “best interests” is so flexible, it’s hard to know what a judge would do in the event of a trial. The other problem is that the only information a judge will have to make the decision is a few hours of testimony and a report prepared by the family conciliation office. That’s not much information for a judge to go on when deciding where your children will live and how often they will see you.
There’s no way the judge will know for sure if what they order is really in your children’s best interests. Only you and your children’s other parent know that.
If we can’t settle, can I tell the judge my story and let the judge decide?
You can always stop mediating and begin litigating. We believe that’s rarely the right solution because of the stress and toll it takes on your and your family (not to mention the expense), but it’s always an option.