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The McKay Law Group, APC
Family Law Attorneys
402 West Broadway, Suite 400
San Diego, CA 92037
P: (619) 321-6886
F: (619) 321-6889

The Petition

A divorce begins with the filing of a Petition.  The spouse filing is known as the "Petitioner".  This document notifies the court and your spouse, when served, that you want the court to end your marriage.  It also lists what you are asking for, such as child custody, child visitation, child support, spousal support, property division, attorney's fees and costs.  The court takes no action upon the filing of the Petition.  If you need temporary orders, we will file an Order to Show Cause.

The Response

After the Petition is served on the other spouse, the other spouse is entitled to file opposing papers.  In California, this is called a Response and the responding spouse is the "Respondent."  If you have been served with a Petition, we must file your opposing papers within a certain time or you may lose your right to present your side of the case to the court, and the court will make orders based upon the Petitioner's interpretation of fair orders.

Settlement by Marital Settlement Agreement

Most lawyers and judges agree that it is better to resolve a case by agreement than to have a trial in which a judge decides the outcome. People are more likely to obey a judgment which is based on their agreement than one which has been imposed on them by a judge.  Voluntary compliance is important because enforcement procedures available from the court are usually expensive and sometimes inadequate.

When the parties and their attorneys agree on a negotiated settlement, a Marital Settlement Agreement (MSA) is drawn up by one of the lawyers, who forwards it to the opposing attorney. Both parties and their attorneys can make revisions or adjustments to the MSA to ensure that it accurately reflects the parties’ intentions. The MSA is then attached to a "Judgment" form, as well as other required court pleadings and is filed with the family court. The clerk will process the MSA and judgment to ensure that all the requirements of law have been met. The clerk then forwards the judgment to the assigned judge on the case and the MSA and judgment are entered as the court’s orders, without the necessity of going to court and appearing before the judge.

There are a variety of ways the terms of the MSA can be negotiated. Sometimes a ‘four way’ settlement conference is held to allow both parties and their attorneys to resolve the issues, while other times the attorneys exchange settlement letters.

Trial

If you and your spouse cannot settle your case, it will go to trial. At trial you each tell your story to the judge. It is told through your testimony, the testimony of other witnesses, and documents called exhibits.

Trial is likely to be expensive and unpleasant. However, it can be the only alternative to never-ending unreasonable settlement demands. Still, trials are risky. No lawyer can predict the outcome of a trial because every case is different. A judge, a stranger -- possibly with a viewpoint, temperament and values very different from yours -- tells you and your spouse how to reorder your lives, divides your income and assets, and dictates when each of you may see your children.

Whether you ‘win or lose’ at trial depends on the strength of your evidence and the credibility of our testimony. There is no jury in family court, so the judge will act as the jury in making ‘factual determinations’ as to which spouse to believe.