A divorce proceeding is never more intimidating than when you have to go to a government building so that group of legal professionals can argue over the facts of your marriage in a court of law. We know the experience well, and have seen the fear in the eyes of clients. For some, physical symptoms of stress will pop up before a hearing— muscle tension, racing heart and shortness of breath—as common questions spin through the mind: will I lose my children, will I lose my home, how will I survive on my own?
The experience of going to divorce court can be made easier with help from a good family attorney. Knowing what to expect can also help to a person’s fears. If you have a good family attorney, he or she should be able to explain clearly what will happen at each step in the process.
This article was written to discuss some of the common occurrences in divorce court for the benefit of folks facing the experience themselves. If you have more questions after reading this article, consider scheduling a consultation with our office. With the right help, you can get through your divorce and move on with your life.
Settlement Conferences, and the Art of Negotiation
As we’ve written in several other articles before, court should be avoided if at all possible. Not only is it incredibly stressful, but it can be very expensive as well.
Most California courts require the parties in a divorce case to attempt to settle whatever issues they possibly can before going to court. In some cases the judge will try to find a solution that everyone involved can agree on in order to settle the case.
This could mean the parties involved in a divorce will be required to attend a mandatory settlement conference.
A good lawyer with excellent negotiating skills can be extremely helpful in steering a case clear of a long and costly trial.
While the stress of your case may be all consuming to you, it’s important to remember that the judge hearing your case will have several other cases to consider on his or her schedule. This means that there may be delays when it comes to hearings.
Typically a judge will prioritize the cases to be heard beginning with those involving domestic violence, then child custody cases, followed by all other cases.
Depending on the specifics of your case, you may be in for a long wait before your case is scheduled.
Often times, because it is a policy of the family code to encourage settlement between divorcing couples, the judge may ask why your case has not settled. It is possible the court will encourage the couple to settle while the case is waiting to be heard.
Additionally, the judge may want the attorneys involved in the case to give a time estimate on the hearing. Depending on the complexity of your case, and whether child custody is a factor along with a large community estate, the estimate for the hearing could be lengthy. In this case, the judge may have difficulty fitting your case on the calendar.
Keep reading to learn about some of the different types of hearings and orders that can occur once you go to court.
Temporary Orders Pertain to Spousal Support, Child Support, and Child Custody
Before the actual trial takes place, and final orders are made, the judge will often make temporary orders regarding spousal support, child support, and child custody. These orders must be followed while you and your former spouse wait for your divorce to be finalized.
Temporary Spousal Support
Courts often use computer programs that calculate income and expenses before making a temporary order on spousal support. In more complex cases, it may be necessary to call a forensic accountant to testify at a preliminary hearing.
It should be noted, that if a spouse has been convicted of domestic abuse within the previous five years, he or she will have to overcome the presumption that spousal support should not be awarded that person.
Temporary Child Support
Similar to temporary spousal support, a judge may order one or both spouses to pay an amount necessary for the support of children. It is possible for this amount to be modified during the divorce proceedings.
Temporary Child Custody
When it comes to an initial ruling on child custody, there might be a hearing to determine a temporary custody arrangement. This might happen if one parent is seeking sole custody of the child.
The family code allows the court to make a decision on temporary custody that “seems necessary or proper.” The guiding standard for making this decision will be the child’s best interest. This involves issues of the child’s health, safety and welfare.
To that end, there may be a hearing to determine what sort of temporary custody order would be in the child’s best interest. This could include testimony or documented evidence in support of the child’s interest.
As with spousal and child support, if one of the spouses has any recent criminal convictions for domestic abuse, that spouse will face an uphill battle in convincing the court that it is in the child’s best interest for that parent to have sole or even partial custody.
These often happen in cases involving domestic violence or rancor between the spouses. One party typically requests these orders with minimal notice to the other — in some cases a day or hours before a hearing.
With these types of requests, the judge will likely make a decision based on paperwork filed with the clerk (as opposed to a full hearing). And whether the request is immediately granted in part or full, there will most likely be a follow up hearing with more notice.
Attorney’s Fees Order
The California Family Code provides a powerful tool for folks who have to deal with a difficult spouse during the divorce process. A spouse who frustrates the settlement process by filing excessive motions or who attempts to hide income or assets can be ordered to pay the other spouse’s attorney’s fees.
In some cases a hearing on attorney’s fees will be held at the same time as other temporary hearings such as custody or spousal support hearings. In some cases, there might be a special hearing solely to determine an order on attorney’s fees.
Trial Setting Conferences
Before a trial date is set, there may be a series of trial setting conferences attended by the lawyers. At these hearings the judge is usually interested in finding out if all the parties are ready to proceed to trial. Calendars are then checked and either a date for trial will be set, or the parties will be ordered to attend a mandatory settlement conference.
Attendance by the spouses is not usually mandatory at a trial setting conference, however, this is something you should discuss with your attorney.
You Don’t Have to Go It Alone
You shouldn’t go it alone. If this article has shown you anything, it should be that there are too many things for one person to have to consider when going through a divorce. Family court is an intimidating place for a person who’s already dealing with family separation.
If you are going through a divorce and face a trial situation, or have another question about family law, contact our office for more information. Learn how we can help you through this process.