Divorce Procedure Definitions
Jurisdiction equals power. Jurisdiction is the power of the court to compel people to do things. It is the power to determine status such as, now you are married, now you are unmarried. It is the power of the court to order people to pay money. Jurisdiction begins when a person files the Summons and Petition. Jurisdiction must be open for a minimum of six months in the divorce.
Who files first?
The person who has the greatest need for jurisdiction will probably file. There is some minor advantage to becoming the “Petitioner” and eventually going first at trial and controlling the procedures of the trial if the case eventually does not settle. This does not mean that the Petitioner will receive more than 1/2 of the community property.
What is an Order to Show Cause?
An Order to Show Cause, commonly called an “OSC” as a generic name for a hearing which is used to protect the status quo of the family. Issues of child support, spousal support, the use of property, child sharing, and restraining orders are heard in these short hearings. A long OSC is 20 minutes. These hearings might also be used to procedurally direct the divorce through the family court.
Restraining Orders and “Kick Out: Orders
The Family Court will issue orders which prevent a person from hiding or selling property, from changing health and life insurance policies, and from harassing or abusing the other persons in the family. These are restraining orders. Many other types of custom orders might be necessary.
Kick Out orders are more drastic.
The usually follow recent incidents of significant violence. Sexual abuse of the spouse or children justifies a kick out order. These may be obtained on an emergency basis through a clinic at Family Court. The police will be directed by the judge to serve or execute on the order and the person removed from the residence will have only a few minutes to collect toiletries and clothing before leaving. They will not be allowed to return before the hearing at Family Court a few days later.
Who will pay for the attorney?
California law provides that the judge should consider the needs of each party, the income of each party, the conduct of each party, the assets whether they are community or separate in determining if one side should contribute money to pay for the lawyer of the other side. Very often, the judge will want to know if there is an asset like a house or investment account with enough equity that can be used to pay one or both of the lawyers. A smart tactic in a divorce is to play fair, be forthright with information, and make a fair written statement offer early in the case. This can be used against the other side if they persist in fighting for an unreasonable position.
Is a Marital Settlement Agreement as good as a Judgment?
A Marital Settlement Agreement, commonly called an “MSA” is a comprehensive document stating all terms and condition between the husband and wife to end the marriage. It becomes private law between the husband and wife. The earlier in the case that the terms of an MSA can be reached, the cheaper the divorce will be. The MSA is merged and incorporated into the Judgment. The case does not go to trial. If appropriate, the MSA/Judgment may be recorded with the County Recorder. It may also be used to divorce certain investment or retirement accounts.