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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 San Diego County courts have an excellent web site providing valuable information about the courts. Go to: www.sdcourt.ca.gov.

The divorce process in San Diego County is dictated by the San Diego County Local Court Rules. The Local Court Rules specify the various policies of our county, including deadlines.

Family law cases are heard by judges who hear only family law matters and are not heard with other civil cases. There are several family law courts in San Diego. The location of the Petitioner’s residence determines which court will be responsible for the case. Family law courts are located in downtown San Diego, Vista, El Cajon and South Bay.

The goal of the legal process of divorce is to end the marriage and decide such issues as child custody, visitation, child support, spousal support, community property and debt division, separate property reimbursements and attorney's fees and costs.

A divorce judgment can be based on an agreement between the parties or result from a trial. An agreement is usually less traumatic for you and your children, and less expensive than a trial. Ultimately, most cases are resolved without a trial.

Starting the Divorce Process

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 on the filing of Petition.

Temporary Orders

Temporary orders, also called pendente lite orders, set the rules while the case is pending. Either party can ask the court to make temporary orders stating, for example, who stays in the house, who is responsible for the children, who pays which bills and restraining inappropriate conduct. It is in both spouses’ best interest to agree upon reasonable arrangements while the case is pending. The spouses can communicate their wishes to their attorneys, who can draw up an agreement making their agreement the temporary orders of the court, or one of the spouses can file a motion (Order to Show Cause) with the court asking the judge to set the temporary orders.

Automatic Temporary Restraining Orders

In San Diego County, once the Petition is filed, the Petitioner is automatically bound by temporary orders of the court prohibiting certain conduct.

Mandatory Court Appearances

The court requires that the parties or their attorneys make an appearance at a Case Classification Conference and a Case Management Conference during the case. These appearances are for the purpose of updating the court on the status of your case.

Discovery

Each spouse is entitled to information from the other about the case. The legal procedures for obtaining that information are called discovery. Discovery may be a simple, speedy process or one consuming a great deal of time, energy and money.

There are several different discovery procedures. A list of questions known as interrogatories, requiring a formal written answer to each question, may be sent. By a request for production one party may obtain documents from the other. In a deposition, or examination before trial, the spouses and other persons, including experts, may be required to answer questions under oath in a lawyer's office while a court reporter takes down what is said and then prepares a transcript.

Discovery may be conducted informally. It is often more efficient and less expensive for lawyers informally to exchange documents and information than to send and respond to interrogatories and requests for production and to take depositions.

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. Also, people who have been through a divorce value the privacy and control that a negotiated settlement agreement gives them. 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. For these reasons, following discovery or at any time during the divorce process, the parties and their lawyers can negotiate a settlement.

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.

Arbitration

For parties with sufficient financial resources, arbitration with a private family law judge is a good option, as the time spent with the judge is more efficient than going through the court system. There is also a great deal of flexibility, as the formal rules of civil procedure and evidence can be modified.