Understanding the Court System
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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, which is often a more
efficient and less expensive method for lawyers to exchange documents and
information, rather than taking depositions and sending and responding to interrogatories
and requests for production.
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.
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