Legal & Paperwork Questions
Can My Mediator Handle all of the Paperwork for Us?
Yes. Peace Talks Mediation can prepare, file, and serve all of 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, including doing it yourself, hiring a paralegal or document preparation service, or hiring 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 your address, the date of your marriage, the names and dates of birth of your children, an extremely basic outline of your property and whether or not you’d like spousal support, among other things. The Petition can be amended 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 even starting mediation because California has a mandatory 6 month waiting period to finalize a divorce–which leaves plenty of time to negotiate an agreement. Because the Petition contains just basic information, which can be amended later, in mediation the Petition’s purpose is to simply open your file with the Court and to 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 or not to be the first to testify in court. As a practical matter, over 98% of all divorce cases settle before a trial. As you can see, 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, so double check the fee on your local court’s web site before filing your Petition.
How Does the Petition Get to the Other Person?
Once the Petition package has been filed with the court, it must be served on the Respondent (the person receiving the petition). This service of process can be done by mail. When the Respondent receives the Petition in the mail, he or she simply signs a receipt that says he or she received the papers. This receipt is called a Notice and Acknowledgment of Receipt and it simply states that the Respondent received the papers—not that he or she agrees with the papers or the divorce in general.
If the Respondent won’t sign the Notice and Acknowledgment of Receipt, he or she needs 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 have been 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”.
In mediation, many clients decide not to bother with a response 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. This 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, so 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 about this in the event that you need to take steps outside of the mediation process.
How is Child Support Set in a Divorce or Family Law Case?
California has a law which sets the child support amount based on your 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.
Peace Talks uses a court-approved computer program to calculate the guideline child support, and we can run these calculations for you in your mediation session if you wish.
Income includes overtime, bonuses, and commissions, unemployment
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, meaning that virtually everything which 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. Each case is decided on a case-by-case basis. The judge considers things like the relationship you each have with the children, which parent will encourage more education, visitation with the other parent and his or her family, and 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 a judge will only have a few hours worth of testimony and a report prepared by the family conciliation office to use to make the decision about where your children will live and how often they will see you. That’s not much information. There’s no way the judge will know for sure if what is ordered 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 almost never 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.