UNCONTESTED DIVORCE PROCEDURE

Contents AT THE CROSSROADS Psychology And Legality The Easy Way And The Hard Way Should You Represent Yourself? Step-By-Step RESOURCES & ASSISTANCE Overview Free Assistance From The Family Law Facilitator (If You Qualify) Family Law Facilitator Act Services Provided Income Limitations Online Resources Do Your Entire Divorce Online At “DivorceYourselfOnline.Com” STEP ONE: GET IT TOGETHER Overview Identify The Issues Child Custody & Visitation Child Support Spousal Support Community Property Division Separate Property Community Debt Division Reimbursements Get Specific – Gather Documents And Information Community Assets & Debts Income & Expenses Checklist STEP TWO: INITIAL FILING WITH THE COURT Overview Choose The Proper Court Prepare Documents For Initial Filings Prepare The Documents Basic Documents Optional – Disclosure Documents

Optional – Filing Fee Waiver Documents Prepare Copies Filing With The Court Clerk What To Bring With You Be Prepared For Rejection If Your Papers Are In Order Yes!! Optional – Take The Papers Directly To The Marshal Checklist STEP THREE: SERVE THE INITIAL PAPERS ON YOUR SPOUSE Overview Choose Which Process Service Procedure To Use Personal Service Substituted Service Acknowledgement Of Service Certified Or Registered Mail Publication Choose A Process Server For Personal Or Substituted Service Legal Requirements Our Preference Prepare The Service Package Have The Papers Served Prepare The “Proof Of Service” Form Checklist STEP 4: GENERAL APPEARANCE, RESPONSE, OR DEFAULT Overview Decide Whether Your Spouse Should Respond If Your Spouse Doesn’t Respond If Your Spouse Responds Option A – Do Nothing Option B - File A Response Option C - File An Appearance, Stipulation & Waiver Checklist STEP FIVE: PRELIMINARY DECLARATION OF DISCLOSURE Overview Prepare The Preliminary Disclosure Package Serve Your Spouse Prepare Proof By Mail Prepare & File Declaration Regarding Service But What If Your Spouse Won’t Cooperate? Checklist STEP SIX: FINAL DECLARATION OF DISCLOSURE Overview

Decide Whether To Waive Final Disclosure Option A - Waive Final Disclosure Stipulated Mutual Waiver Petitioner’s Waiver In Default Cases “Good Cause” Option B – Prepare & Final Disclosure Packages Prepare Documents Make Copies Exchange Disclosure Documents File The Notice Regarding Service With The Court Checklist STEP SEVEN: PREPARE & SIGN A MARITAL SETTLEMENT AGREEMENT Overview When To Get It Signed Prepare A First Draft Of The MSA Use The Sample MSA As A Guide General Drafting Considerations Negotiate The Final Terms With Your Spouse Sign & Notarize Checklist STEP EIGHT: OBTAIN JUDGMENT BY MAIL OR SET “IN-PERSON” HEARING Overview Alternative A – Obtain Judgment By Mail Procedure In “Default” Cases Procedure In “Uncontested” Cases With A Marital Settlement Agreement Alternative B – Set “In-Person” Court Hearing Checklist STEP NINE: THE “IN-PERSON” HEARING (WHEN JUDGMENT BY MAIL IS NOT AN OPTION) STEP TEN: SERVE THE WAGE ASSIGNMENT ORDER ON YOUR SPOUSE’S EMPLOYER APPENDIX A: FORMS APPENDIX B: CALIFORNIA STATUTES

INDEX

AT THE CROSSROADS

Psychology & Legality: If you have made the decision to divorce, you must necessarily move from the comfort and safety and familiarity of the known past and present into the discomfort and danger and unfamiliarity of the unknown future. The task before you is to find a way to leave the past behind and move into your new life with as much courage as you can muster and without allowing the negative psychology of divorce to hurt you and your children and your friends more than it has to. To do this, you will have to contend simultaneously with both the often gut-wrenching psychological processes associated with divorce and with the Byzantine processes of a court system that nobody really fully understands. As anyone who has been through a divorce will tell you, that’s a pretty tall order. Every lawyer knows that, just when the parties need most to exercise their rational faculties to care for the needs of children and to equitably divide property and debts, they are least able to do so because, in most (but not all) cases, the parties are emotionally out to lunch. And, sadly, experience tells us that they are often out to lunch for a very long time – all too often long enough for them to destroy everything they have built together and to traumatize their children for life. If you want to move beyond the crossroads, the challenge is for you to screw up your courage, stay cool, and to do what you have to do the “easy way” rather than the “hard way.” The Easy Way And The Hard Way: The “hard way” is all too familiar. Everyone knows someone who has gone through the “divorce from hell.” Attorneys are hired – initial papers are filed – temporary restraining orders are sought – depositions are taken – friends and family are polarized – children are traumatized – and the assets of the parties which may have been accumulated over many years are quickly transferred to attorneys, investigators, and court reporters leaving little or nothing for the parties themselves in the end. Years later the parties look back and wonder how they could have been so crazy. But there is another way – the “easy way.” In this scenario the parties suppress their anger and/or their jealousy. They agree to disagree on who was at fault for the divorce. They sit down and engage in the activity that separates apes from humans – they TALK. Negotiation substitutes for litigation, compromise substitutes for polarization, agreements are drafted and signed, and often neither party ever has to see the inside of a courtroom. The payoff for doing your divorce the “easy way” is tremendous. You might actually get to KEEP some of your assets and your children might not be in therapy for the next twenty years. What a concept!!

Should You Represent Yourself? Unless you are a lawyer, the decision to represent yourself in any legal proceeding always involves some quantum of risk. And obviously those risks are greater in some cases than they are in others. The risks are greater where children are involved, where spousal support is an issue, and where assets and/or debts are large. In such cases, it often makes sense to bite the bullet and pay the price for competent legal help. But where the risks are lower and resources available to hire a lawyer are limited, it may make sense for you to assume whatever risks there may be and go it alone. Ironically, the best way to determine whether you need a lawyer in your case is to give one a call. Many lawyers will give you a free initial consultation after which you should have a much better idea of the risks and benefits of hiring an attorney. Step-By-Step: For those brave souls who are willing to assume the risks and to accept the call to adventure, this book will attempt to guide you through our sometimes confounding legal processes. Inside you will find forms, detailed instructions to show you how to fill them out, and step-by-step instructions to tell you where to go and what to do at each stage of the proceedings. The vast majority of the forms and procedures necessary to complete your divorce are standard throughout the state. However, local courts often add minor variations to the process with local court rules and local forms. These may (but probably will not) prove to be a minor irritant as you move through the process. That said – let’s get started.

RESOURCES & ASSISTANCE Overview: We will provide you here with as much information as we can given the limitations of a book of this size. However, along the way, you may have questions which are beyond the scope of this book or which have to do with local court procedures. In such cases it is always best to see an attorney. However, if you are not so inclined, there are a number of places you can go for answers other than the traditional hard-copy law library. If you qualify, you may be able to take advantage of the assistance of the newly-created Office Of The Family Law Facilitator. There are also a growing number of websites containing valuable divorce-related information. You may even choose to do your entire divorce interactively at “DivorceYourselfOnline.Com” – the companion website to this book Free Assistance From The Family Law Facilitator:

Family Law Facilitator Act: Based on a finding that there is "a compelling state interest in having a speedy, conflict-reducing system for resolving issues of child support, spousal support, and health insurance that is cost-effective and accessible to families that cannot afford legal representation" in 1996 the California Legislature passed the “Family Law Facilitator Act” [California Family Code § 10000 et seq]. The act mandates each California Superior Cout to maintain an "office of the family law facilitator" to assist unrepresented (pro per) litigants to more effectively access the court system. If you get stuck in following at any stage of the process described in this book, you may want to consider a trip to the facilitator’s office for help.

Services Provided: The Act (Family Code § 10004) provides that family law facilitator services shall include the following mandatory services:

a. Providing educational materials to parents concerning the court

process of establishing parentage and establishing, modifying and enforcing child and spousal support;

b. Distributing necessary court forms and voluntary declarations of

paternity, and providing assistance in completing the forms; c. Preparing support schedules based upon statutory guidelines; d. Providing referrals to the local child support agency, family court

services and other community resources that provide services for parents and children; and

e. Providing assistance on child support issues in counties that have a

family law information center (¶3:480.1). [Ca Fam § 10004 (amended Stats. 1999, Ch. 652)]

The act also empowers your local court to designate additional duties of the family law facilitator which may include (but are not limited to) the following:

a. Mediation: Meeting with the parties to mediate issues of child support,

spousal support and maintenance of health insurance. [Family Code § 10005(a)(1)]

b. Stipulations: Drafting stipulations to include all issues agreed to by the

parties (not limited to issues of support and health insurance). [Family Code § 10005(a)(2)]

c. Assistance at hearings on contested issues: Before or at the hearing

on issues not resolved with the facilitator's assistance, and at the court's request, reviewing the paperwork, examining documents, preparing support schedules, and advising the judge whether the matter is ready to proceed. [Family Code § 10005(a)(3)]

d. Court records: Assisting the court clerk in maintaining records. [Family

Code § 10005(a)(4)] e. Preparation of court orders: Preparing formal orders consistent with

the court's announced order in cases where both parties are in pro per. [Family Code § 10005(a)(5)]

f. Special master: Serving as special master in proceedings and making

findings to the court unless the facilitator has served as a mediator in the case. [Family Code § 10005(a)(6)]

g. Custody/visitation-related child support issues: Providing the services

regarding issues of child custody and visitation as they relate to calculating child support, "if funding is available for that purpose." [Family Code § 10005(a)(8)]

Income Limitations: The services of the Family Law Facilitator are provided only to “low-income” persons. Family Code Section 15010(d) says that "low-income" shall mean “individuals whose net monthly income, after deduction of mandatory court ordered payments, is 200 percent or less of the current monthly poverty line annually established by the Secretary of Health and Human Services pursuant to the Omnibus Budget Reconciliation Act of 1981, as amended.”

The act further provides that “Family law litigants, prior to receiving the services of the family law information center, shall be required to sign a declaration attesting to their financial eligibility to receive those services. No other efforts to verify financial eligibility shall be necessary.”

Online Resources: Do Your Entire Divorce Online At “DivorceYourselfOnline.Com”:

STEP 1: GET IT TOGETHER 1. Overview: In broad outline, these are the things you will have to do to bring your uncontested or default divorce case to judgment:

a. Identify the issues you will have to deal with. b. Collect the documents and information (the facts) relevant to the issues of

your particular case. c. Negotiate, draft, and sign a written agreement dealing with all of the issues (if

your spouse is cooperative). d. Follow required Court procedure to obtain the judgment.

2. Identify The Issues: First, before you dive into the details of the process, sit down for a few minutes, think about the issues you will have to deal with in your divorce, and make a few preliminary notes to yourself. Typically divorce issues fall into one of the following categories:

a. Child Custody & Visitation: If there are children of the marriage, who will have “legal custody” and who will have “physical custody” of the children? Will one party have sole custody? Will custody be shared? If it is shared, will you need an order setting out specific dates, times, and places for visitation or is your relationship with your spouse such that you can live with a “reasonable visitation” order which will allow you to decide on visitation times without the necessity of a formal order?

b. Child Support: How much child support will be paid. When will the

payments be made? When will it terminate? Should it be paid directly to the receiving spouse or should it be paid through the court trustee?

c. Spousal Support: Will one of the parties need to be supported? If so,

how much and for how long? If no support is to be paid now, should the court retain the power (jurisdiction) to order spousal support in the future if the need arises? If there is to be a waiver of support, both parties need to understand that, after the Judgment is entered, neither party will be able to come back to court for a support order.

d. Community Property Division: What community property do you have?

What is the value of your community property? How are you going to divide it? (In the absence of a prenuptial agreement, community property is generally all property acquired during the marriage [after the date of the marriage and prior to the date of separation] and not acquired during the marriage by way of gift or inheritance.)

e. Separate Property: If you have separate property, do you need to make

it clear that your spouse has no interest in that property? If so, you will need to ask the court to “confirm” your separate property to you. (In the absence of a prenuptial agreement, “separate property” is all property you acquired before the marriage and after the date of separation and all property you acquired during the marriage by way of gift or inheritance.)

f. Debt Division: What community debts did you have as of the date of

separation? How much are the debts? Who will be responsible for payment of those debts? (Community property debts are all debts incurred after the date of the marriage and prior to the date of the separation)

g. Reimbursements: If you or your spouse has paid community property

debts with separate property money, the party making such payments has a right to be reimbursed “off of the top” from the community property estate. Conversely, if one of the spouses has appropriated or disposed of a community property asset, the community estate has a right to a reimbursement from the party who took the property. The community estate may also be entitled to a reimbursement of the reasonable rental value of real property solely occupied by one of the spouses after the date of separation.

2. Get Specific - Gather Documents And Information:

a. List Community Assets & Debts: Division of community property assets and debts basically involves three processes. First you will have to “characterize” each asset or debt as being community property (CP), separate property (SP), or “mixed” (part CP and part SP). Next, you need to place a value on each asset or debt. And, finally, you need to equally divide the assets and debts.

Research: Consult our “Legal Library” for an introduction to the law regarding the characterization of property. This is a very complex subject. If you do not feel competent to decide for yourself what is and is not community property, you should consult an attorney. Schedule Of Assets & Debts: Take a look at the Judicial Counsel form, “Schedule Of Assets & Debts” (Form #19). This form lists several categories of community property and debts and identifies documents you might want to gather to help you identify and value them. Our experience tells us that a review of this form will almost always jog your memory and will help you to recall items of community property you might otherwise have overlooked. You will have to fill it out sooner or later in order to comply with the court’s “disclosure” requirements – you might as well complete it before you file to help you think about the issues.

b. Income And Expenses: If you have child support or spousal support issues, before you can intelligently negotiate with your spouse on the issue, you need to know what support, if any, the court would order in the absence of an agreement.

Generally, the court deals with these issues by using a computer program called “Dissomaster” which calculates support based on a complex mathematical formula contained in California Family Law Code Section _______. Financial data from both parties is entered into the program and, where there are children, the amount of time each party spends with the children is factored into the calculation, and the program tells the court what “Guideline” support would be. The court may deviate from the Guideline but it rarely does.

Income & Expense Declaration: Take a look at the “Income & Expense” declaration (Form #22). As part of the mandatory “disclosure” process, the court requires that the parties each file this form whether or not there are any child and/or spousal support issues to deal with. If you are going to negotiate with your spouse on this issue or if you would just like to know what child or spousal support would be, you might as well fill out this form before you file. Online Child Support Calculator: If you want a rough child support calculation, go to http://www.west.net/~ivguy/testcalc.html and run the program there. This is NOT a complete “Dissomaster” calculation but it will give you a pretty good approximation.

Checklist – Step One

Get It Together ____ Identify The Issues ____ Child Custody & Visitation ____ Child Support ____ Spousal Support ____ Community Property Division ____ Separate Property ____ Community Debt Division ____ Reimbursements ____Get Specific – Gather Documents And Information ____ List Community Assets & Debts ____ Fill Out “Schedule Of Assets & Debts” ____ Income & Expenses ____ Fill Out “Income & Expense Declaration” ____ Do Child Support Calculation ____ Informal Calculation at http://www.west.net/~ivguy/testcalc.html ____ Formal Dissomaster Calculation

STEP 2: INITIAL FILING WITH THE COURT 1. Overview: The first step in the court procedure to obtain your divorce judgment is to file some initial documents (described below) with the court clerk and to obtain one or more “conformed” copies for service on your spouse. To do this you must:

a. Choose the proper court b. Prepare all documents required by your local court for the initial filing. b. Pay the initial filing fee or obtain a waiver of the filing fee d. Obtain one or more “conformed” copies.

2. Choosing The Proper Court: To choose the proper California Court in which to file your case, you must satisfy State, County, and sometimes local jurisdiction and venue requirements.

1) California Jurisdiction: In order for California to have Jurisdiction over your case you must have been a resident of the State for the six (6) months prior to the filing of your case. “Residence” for this purpose means “domicile” and requires both physical presence (residence) within the state and the intent to remain there indefinitely. The maintenance of a "residence" within the state is not the equivalent of establishing a "domicile" there.

Caveat: Residence/Domicile of one of the parties gives the court the power to dissolve the marriage union and to change the marital status of the parties from “married” to “single”. This is called “In Rem” jurisdiction. However, the court's authority to render binding judgments and orders imposing personal obligations on the parties or affecting their personal rights (i.e., support, attorney fees and costs, property interests) requires that the parties be subject to the forum state's personal ("in personam") jurisdiction in conformity with constitutional due process. “In Personam” jurisdiction over your spouse requires:

- Physical presence in the forum state when personally served with

process; or - Domicile in the forum state at the time suit is commenced; or - Consent to the exercise of personal jurisdiction; or - "Minimum contacts" with the forum state (but unless "substantial,

continuous and systematic," minimum contacts confer personal jurisdiction only in suits arising out of those contacts.

If you want to both dissolve your marital status and need orders imposing personal obligations on your spouse, you will need both “In Rem” and “In

Personam” jurisdiction. 2) County Jurisdiction: Either you or your spouse must have been a resident

in the County where you are filing for the three (3) months prior to the date of filing. A spouse satisfies the minimum county residence requirement only if he or she has been "actually residing" (physically present) in the county where the dissolution action is commenced for at least three months.

3) Local Jurisdiction: Many Counties in California have several “branch”

courts. You must consult local court rules to determine which branch court is the proper court for your case. Example: The Los Angeles Superior Court has a filing district locator at http://www.lasuperiorcourt.org/locations/filingSearch.asp?Referer=Index which aids in determining the proper court for filing under LA County’s local rules (http://www.lasuperiorcourt.org/CourtRules/Chapter2.htm#2.0)

Note: The California Judicial Branch web site provides a listing of State courts at http://www.courtinfo.ca.gov/courts/trial/.

3. Prepare Documents For The First Filing: Local courts often have special forms not included here. Give your local court clerk a call and see if you will be required to file any such documents before you start to put together your package of documents for the initial filing.

a. Prepare The Documents: You may choose to file only the basic documents required by the court or, to save time, you may choose to file both the basic documents and the “Disclosure” documents required in Step 3. Additional documents will have to be prepared if you are going to file for a waiver of filing and service fees.

1). Basic Documents:

* Summons (# 1 on the document list) * Petition (# 2 on the document list) * Confidential Counseling Statements (#3 on the document list).

This form needs to be filed only in those counties having a family conciliation court.

* Declaration Under UCCJA only if you have children (#4 on the

document list) * Local Court Forms – if they are required, download them if

possible or get them from your local court clerk. 2) Optional – Disclosure Documents (See Step 3) 3) Optional – Filing Fee Waiver Documents: If you cannot afford to

pay the costs of filing and service of your documents, you may

qualify for a waiver of the fees. The requirements are set out in the State Information Sheet On Waiver Of Court Fees And Costs (#13 on the document list). If you qualify and you choose to apply for the fee waiver, you will need to prepare:

* Application for Waiver of Court Fees and Costs (In Forma Pauperis) (Form #12 on the document list)

* Order on Application for Waiver of Court Fees and Costs (Form #14 on the document list)

* Notice of Waiver of Court Fees and Costs (Form #15 on the document list)

Note: See instructions for filing fee waiver documents below.

b. Prepare Copies: When you go to court to file your papers, you will need

the originals and a minimum of 2 copies.: * The original to file with the court. * One copy to conform (stamp) for your file * One copy to conform and serve on your spouse

Note: We strongly suggest that you have 3 copies conformed in case the service copy is lost.

Note: Many local rules require that you two-hole punch at

the top all documents to be filed with the court.

4. File With The Court Clerk: After you initial papers have been prepared, signed, and copied, it will be time to go to the courthouse and file them with the court clerk.

a. What To Bring With You: Prepare a package to take with you including: * Original and 2 (preferably 3) copies of your basic documents –

Summons, Petition, declaration of UCCJA if there are children involved, and any local court documents required by your local court rules.

* Blank check for the filing fee. Keep it blank – the amount is

always changing and you may find when you get to the clerk’s office that it is higher (never lower) than you thought (more about this below).

* Optional – original and copies of “Disclosure” documents * Optional – original and copies of fee waiver documents if you

qualify and plan to seek the waiver

b. Be Prepared For Rejection: Beware – court clerks range from

happy/knowledgeable/helpful to incredibly sour/incompetent/obstructionist. Thank your lucky stars if you are blessed with the former. If you happen to be dealt the latter, be prepared to leave the window with your tail

between your legs carrying a list of local procedures you have unwittingly failed to follow and, perhaps another list of local court forms you have to go home to prepare.

c. If Your Papers Are In Order: When everything is in order, this is what will

happen:

* Filing Fee: The clerk will ask you for your filing fee. This “first paper” filing fee is approximately $200, is always changing, and is different from court to court since local courts are allowed to tack on their own small fees to the base fee established by the State legislature.

* Original Summons: The court will issue you an original

summons. PUT THIS IN YOUR FILE AND DO NOT SERVE IT!! You will need to return it to the court later when you file your “default package”.

* Originals Filed: The clerk will file the original documents in the

court file. * Case Number: The court will stamp the originals with a case

number. *.Conformed Copies: Ask the court to “conform” (stamp) all of

your copies with the case number and “date filed” stamp. Some clerks will do this – others will conform only one and will hand you the stamps to do the remaining copies yourself.

d. Yes!!: You’ve done it!! You’ve taken the first and most difficult step. It is

all downhill from here. Pat yourself on the back and treat yourself to a Starbuck’s. You deserve it.

5. Optional – Take The Papers Directly To The Marshal: If you are going to use the Marshal’s office to serve the papers, you may choose to go directly to the Marshal’s office to arrange for the service. (See Step 3 for a discussion on alternative methods of service) In most courts you will find a branch office located in the courthouse for this purpose. You’ll have to pay a fee (approximately $30) and fill out a form describing your spouse and giving the location where he/she may be found. If you decide to do this, be sure to bring another check to pay the process service fee.

Checklist – Step Two

Initial Filing With The Court ____ Choose The Proper Court ____ Does California Have Jurisdiction? ____ Does Your County Have Jurisdiction? ____ Does Your Branch Court The Correct Branch For Filing? ____ Prepare Documents For Initial Filings ____ Prepare The Documents ____ Basic Documents ____ Summons ____ Petition ____ Confidential Counseling Statement ____ Declaration Under UCCJA ____ Local Court Forms ____ Optional – Disclosure Documents (See Step ___) ____ Optional – Filing Fee Waiver Documents (See Step ___) ____ Prepare Copies ____ Originals For The Court ____ One Copy Of Each For Your File ____ One Copy Of Each To Conform (Stamp) For Your File ____ One Copy To Conform & Serve On Your Spouse ____ Optional: One Copy For Extra Measure ____ Filing With The Court Clerk ____ Prepare Document Package To Take To Court ____ Original And Copies Of The Documents ____ Blank Check For The Filing Fee ____ Optional – Take The Papers Directly To The Marshal ____ Bring A Check For Service Fee

STEP THREE: SERVE THE INITIAL PAPERS ON YOUR SPOUSE

1. Overview: Basic fairness (due process) requires that your spouse be given notice of the court proceedings and be given an opportunity to respond. To insure that these due process requirements are met, the law requires that the initial documents be served in a manner which will provide the court with maximum confidence that your spouse knows when and where to respond in order to protect his/her rights. Basically the process requires a) service in compliance with the California Code Of Civil Procedure, 2) preparation of a “Proof Of Service”, and, 3) filing of the Proof Of Service with the court. Once you have properly served the initial papers, you may serve the rest of the papers by mail. (More about this below) 2. Choose Which Process Service Procedure To Use: Take a look at Judicial Council form 1283.5, “Proof Of Service Of Summons” (Form #10 on the forms list). Paragraph 2 on the form is “Manner Of Service” which lays out four specific alternatives and makes a reference to “Other.” Thos methods are:

a. Personal Service: Personal service, authorized under Code Of Civil Procedure 415.10, is accomplished by having someone other than a party to the action personally confront your spouse and deliver the summons. Note: It is not necessary for the person served to “accept” the documents and it is not necessary for your server to touch the person served with the documents – all your server needs to do is to confront him/her, show him the documents, and tell him that he has been served. If your spouse won’t allow the document to be handed to him, your server can just drop the papers on the ground. Service is effected as of the date of delivery.

b. Substituted Service: This method is covered by Code Of Civil Procedure

415.20(b) and may be used only if “a copy of the summons and of the complaint cannot with reasonable diligence be personally delivered to the person to be served.” Before your server can use this method he/she must have first made reasonable efforts to have the Summons personally served. Whether this “reasonable diligence” standard has been met is a question to be decided by the court. However, most courts generally interpret the law to mean that at least four attempts at personal service have been made. Note: if you must use substituted service, we suggest that you either use the Marshal or hire a private process server to effect the service. Note also that, whoever does the substituted service, you will have to file with the court a written declaration (“declaration of due diligence”) by the server describing what efforts were made before resorting to this method. Service is effected 10 days after the date of mailing

c. Acknowledgement Of Service: The documents may also be served by mailing a copy of the summons and complaint to the person to be served together with two (2) copies of the Judicial Council Notice and Acknowledgment of Receipt of the summons along with a self-addressed, stamped envelope. For other requirements of this method of service, see California Code of Civil Procedure §415.30. If acknowledgment is not signed by Defendant and returned, service is not effected. Service is effected as of the date indicated at the bottom of the form.

d. Certified Or Registered Mail: This method may be used only when your

spouse resides outside the State of California. You simply mail the papers by certified or registered mail, “return receipt requested”. Save the return receipt – you’ll need to attach it to your proof of service later. Obviously this method won’t work if your spouse won’t sign for the envelope and you will have to hire a process server or local marshal or sheriff to serve the papers.

e. Publication: When your spouse cannot be located for service, California

law provides for service of process by publication in a newspaper of general circulation. This procedure requires that you file a motion in court to obtain an order allowing publication and will probably require the services of an attorney.

3. Choose A Process Server For Personal Or Substituted Service: If you cannot serve the initial papers by acknowledgement of service, certified or registered mail, or publication, you will need someone to effect service either personally or by substituted service. You may not serve the papers yourself.

a. Legal Requirements: Any person 18 years of age or over and not a party to the action may serve the documents. (See California Code of Civil Procedure §414.10.).

b. Our Preference: If you have a cooperative spouse and can have him/her

sign an Acknowledgment Of Service, you don’t have to worry about finding someone to serve the documents. If you do, we recommend against using a close friend or relative whose prejudices and motives may be questioned later. Spend a few dollars and either have your spouse served by a private registered process server or by the local sheriff or marshal.

4. Prepare The Service Package: You will need to put together a package for your process server containing the following documents:

a. Summons b. Petition c. Confidential Counseling Statements (in jurisdictions with conciliation courts) d. Blank Confidential Counseling Statement e. Blank Response f. UCCJEA Declaration (where children are involved)

5. Serve The Papers: What you do next depends on how you want to have the papers served.

a. Personal Or Substituted Service: For personal or substituted service, give your package to a friend, to the marshal, or to a registered process server.

b. Acknowledgement Of Service: If your spouse will accept service, deliver

him/her your service package with a Notice And Acknowledgement Of Receipt and have him/her return it to you dated and signed.

c. Certified Or Registered Mail: (This method may only be used when your

spouse resides out of California.) Send the service package certified or registered mail “return receipt requested.” But beware – this form of service only gives the court the power to dissolve the marriage – it does not give the court the power to make a judgment imposing personal financial obligations on your spouse. (See the discussion regarding California jurisdiction above.)

d. Publication: This method is beyond the scope of this discussion. You will

need an attorney to do this for you. 6. Prepare The “Proof Of Service” Form: When you are ready to submit your papers to the Court for the Judge to sign, you will need to submit a “proof of service” form to prove to the Court that your initial filing was properly served. If your papers were served by a registered process server or by the Sheriff or Marshal, you will receive the proof of service from your server. If you have had a friend serve the papers, you will have to prepare and have your friend sign the Judicial Council Form, “Proof Of Service Of Summons” (#10 on the forms list) Put the form in your file. You will file it later when you submit your “default package” to the court.

Checklist – Step Three

Serve The Initial Papers On Your Spouse ____ Choose Which Process Service Procedure To Use ____ Personal Service or ____ Substituted Service or ____ Acknowledgement Of Service or ____ Certified Or Registered Mail (out of State only) or ____ Publication ____ Choose A Process Server (For Personal Or Substituted Service) ____ Registered Process Server ____ Sheriff Or Marshal ____ Other: (Over 18 & Not A Party To The Action) ____ Prepare The Service Package ____ Have The Papers Served (Note Date Of Service ___________) ____ Prepare The “Proof Of Service” Form & Save In Your File

STEP FOUR: GENERAL APPEARANCE, RESPONSE, OR DEFAULT 1. Overview: If your spouse is going to file a Response to your initial papers, he or she must do so within 30 days of the effective date of service. Your spouse has four choices. He or she may:

a. file nothing within 30 days allowing you to file a request for the court to enter your spouse’s default, or;

b. file a "notice of appearance" using the “Appearance, Stipulation & Waiver

Form” (California Rules of Court Rule 1241(d)), allowing the matter to proceed uncontested only on the conditions specified in the form. If your spouse uses this form, he or she makes a “general appearance” and does not contest any of the specific allegations contained in your Petition, or;

c. file a Response To Petition responding to the specific issues raised in your

Petition causing the matter to be “contested” until and unless you and your spouse agree to have the court handle it as an uncontested matter, or;

d. file an appropriate responsive motion such as a demurrer (California Family

Law Code § 2020). 2. Decide Whether Your Spouse Should Respond: One would think that, if the parties are in agreement and want the process to go forward uncontested, they would not want to go through the trouble and expense of filing a Response. This is not always true and you and your spouse need to think through a few issues before making a decision.

a. Beware - You May Not Have A Choice: The courts are always looking for new and creative ways to collect filing fees. One easy way to do this is to require the filing of a Response (and thus the payment of the response fee) in certain cases. For example – San Diego County requires the filing of a response fee where a marital settlement agreement is filed but Orange County does not.

b. If Your Spouse Doesn’t Respond:

1) Advantage: If no Response is filed, no response fee will have to be paid and you and/or your spouse will save about $200. But beware – as indicated above – you may not have a choice in the matter. You’ll need to check your local court rules to determine whether the court is going to dun you for the fee.

2) Disadvantage: If no Response or notice of appearance is filed, your

spouse will be foreclosed from responding unless he/she files a

complicated “Motion To Vacate Default”. However, if negotiations break down between you and your spouse decides to file such a motion, your opposition to such motion will be expensive and will probably require the assistance of an attorney.

3) Disadvantage: If no response is filed, the parties are unable to come

to an agreement, and your spouse chooses not to cooperate and sign an agreement, he/she may later come back into court to contest the terms of your Judgment on grounds that he was never served.

4) Disadvantage: If the wife is the party not responding and she wants

the court to restore her maiden name, your local court may refuse to do this unless a response fee is paid.

c. If Your Spouse Responds: 1) Advantage: If your spouse files a response with the Court and later

cooperates with you to sign and file a settlement agreement and/or stipulated Judgment, it will be much more difficult to challenge the Judgment later. Your spouse will have acknowledged service of process and the presumptions favoring the validity of the agreement and/or Judgment will be difficult to overcome.

2) Advantage: You will now have to worry that you may not later run

afoul of some petty local court rule which will not allow you to obtain your final Judgment without filing a Response (and paying the response fee.)

3) Disadvantage: Your spouse will have to pay the filing fee

(approximately $200). 4) Disadvantage: If negotiations break down later, since your spouse

has a Response on file, he/she will not have to make a motion to get back in the game, will be in a better position to contest the issues, and the matter may become “contested.”

3. Option A – Do Nothing: If your spouse does not file a response, after 30 days from the effective date of service of the initial documents, you will be in a position to file a request for entry of default with the court. 4. Option B - File A Response: If your spouse chooses to file a Response in order to preserve his/her rights until a final settlement is reached, here is what to do:

a. Prepare A Response Package: You’ll need to prepare the following documents:

1) Response To Petition (#6 on our forms list) 2) Confidential Counseling Statement ((in jurisdictions with conciliation

courts) (#9 on our forms list) 3) Optional: Declaration Under UCCJEA if children are involved (#8 on

our forms list

4) Optional: Disclosure documents (see ____ below) b. Make Copies: Make __ copies (one for your file, the original for the court, one

to mail to the other party, and one to conform) c. Mail Copies Of All Documents To The Petitioner: The Court will not accept the

Response unless it has been served on the Petitioning party. This may be done by mail.

d. Prepare A “Proof Of Service By Mail”: After you have mailed the documents,

prepare a “Proof Of Service By Mail”, make ___ copies, and add it to the documents you will take to court with you to file.

e. File the Response Package plus the Proof Of Service By Mail with the court.

You may choose to do this by mail. If so, you may want to use our sample transmittal letter - #___ on the forms list. Make sure to include the original, copie(s) to conform, and a stamped and addressed return envelope large enough to accommodate the documents the court is sending back to you (usually a large manila envelope).

5. Option C - File An “Appearance, Stipulation & Waiver”: If your spouse chooses to make a “general appearance” without responding to the specific allegations in your Petition, this is what to do:

a. Prepare The Document: Prepare an “Appearance, Stipulation, & Waiver” form (#28 on our forms list)

b. Make Copies: Make 3 copies (the original is filed with the court and you need

one copy for your file, one copy to mail to the other party, and one copy to conform)

c. Mail Copies To The Petitioner: The Court will not accept the document in the

Response Package for filing unless they have been served on the Petitioning party. This may be done by mail.

d. Prepare A “Proof Of Service By Mail”: After you have mailed the documents,

prepare a “Proof Of Service By Mail”, make 3 copies, and add it to the documents you will take to court with you to file.

e. File the Appearance, Stipulation & Waiver plus the Proof Of Service By Mail

with the court. You may choose to do this by mail. If so, you may want to use our sample transmittal letter - #___ on the forms list. Make sure to include the original, copie(s) to conform, and a stamped and addressed return envelope large enough to accommodate the documents the court is sending back to you (usually a large manila envelope).

Checklist – Step Four General Appearance, Or Default

____ Decide Whether Your Spouse Should Respond (See Step 4 Overview) ____ Option A – Do Nothing ____ Option B - File A Response ____ Prepare A Response Package ____ Response To Petition (Form #6) ____ Confidential Counseling Statement (Form #9) ____ If Children Involved: Declaration Under UCCJEA (Form 8) ____ Optional: Disclosure Documents (See Step 5) ____ Make Copies: Minimum 3 (4 preferred) ____ Serve Spouse By Mail ____ Prepare “Proof Of Service By Mail” (Form #___) ____ File Response Package & Proof By Mail With The Court ____ Option C - File An Appearance, Stipulation & Waiver ____ Prepare “Appearance, Stipulation & Waiver” (Form #28) ____ Make Copies Minimum (4 preferred) ____ Serve Spouse By Mail ____ Prepare “Proof Of Service By Mail” (Form #___) ____ File Appearance, Stip. & Waiver & Proof By Mail With The Court

STEP FIVE: PRELIMINARY DECLARATION OF DISCLOSURE 1. Overview: It is the policy of the State of California to insure a proper division of community property and to further insure that child and spousal support awards will be fair and equitable. To this end, California Family Code Section § 2100 et seq. mandates the exchange of prescribed "preliminary" and "final" declarations of disclosure, along with current income and expense declarations, in all marriage dissolution, legal separation and nullity actions. Two Disclosures must be made:

a. Preliminary Disclosure: The parties must exchange prescribed "preliminary" declarations of disclosure "[a]fter or concurrently with" service of the petition for marriage dissolution, nullity or legal separation. [California Family Code § 2104(a)]. In “contested” cases the exchange of "preliminary" disclosure declarations by both parties is mandatory and may not be waived. In default cases, (wherein no Response is filed) the law recognizes that it may be impossible to obtain a disclosure from an uncooperative defaulting spouse and, in such a case, only the Petitioner need make the preliminary disclosure.

b. Final Disclosure: The Preliminary Disclosure is a preliminary step in the

process. More comprehensive "final" declarations of disclosure must be made either (1) "before or at the time the parties enter into an agreement for the resolution of property or support issues", or (2) if the case goes to trial, "no later than 45 days before the first assigned trial date." [California Family Law Code § 2105(a)]. Under certain circumstances (described below) the “final disclosure” requirement may be waived by the parties.

The preliminary declarations of disclosure are intended to be only general inventories of assets and liabilities. All assets and liabilities need to be listed but, unlike the “final” disclosure, property characterization and valuation details are not required.

Family Law Code Section 2104(c) requires that each party in his or her preliminary disclosure "shall set forth with sufficient particularity, which a person of reasonable and ordinary intelligence can ascertain,":

a. The identity of all assets in which the declarant has or may have an interest and all liabilities for which the declarant is or may be liable . . . regardless of the characterization of the asset or liability as community, quasi-community or separate.

b. The declarant's percentage of ownership in each asset and percentage of

obligation for each liability where property is not solely owned by one or both parties to the action.

c. Optionally, the declarant's characterization of each asset and liability as being

community property, separate property, quasi-community property, or

“mixed.” To protect the privacy of the parties and to encourage them to make full and accurate disclosures, the Code requires that each party serve his or her declarations on the other party but does not require them to be filed with the court. The only document filed with the court is a declaration acknowledging that the disclosures have been made. The law requires an “exchange” of the declarations and therefore will want to see proof you’re your spouse has made a disclosure to you. If your spouse won’t cooperate, follow the procedure outlined below. 2. Prepare The Preliminary Disclosure Package(s): Unless your spouse has defaulted, you and your spouse will both need to prepare the following documents:

a. Declaration of Disclosure (#11 on the forms list) This is merely a skeleton "cover sheet" to be used for both the "preliminary" and "final" declarations of disclosure. The documents attached to the Declaration provide the details:

b. Schedule of Assets and Debts (#19 on the forms list) c. Income and Expense Declaration (#22 on the forms list)

3. Serve Your Spouse: You and your spouse will both need to mail copies of your disclosure packages to each other. Mail only a) the Declaration Of Disclosure, b) the Schedule Of Assets and Debts, and, c) the Income & Expense Declaration. 4. Prepare Proof By Mail: Complete the “Proof Of Service By Mail” (#7 on the forms list) indicating that all of the above documents have been served by mail on the opposing party. Keep the original in your file – it will not have to be filed with the court unless the service is challenged. 5. Prepare & File Declaration Regarding Service Of Declaration Of Disclosure: Complete the Declaration Regarding Service Of Declaration Of Disclosure (#18 on the forms list, file the original with the court, and keep a copy for your file. 6. But What If Your Spouse Won’t Cooperate? Getting a defaulting spouse to cooperate in filing a disclosure can be difficult and, in many cases, impossible. If you face this problem, you need to make a reasonable effort to have your spouse comply with the law, document your efforts to do so, and describe those efforts the court. Here is what to do:

a. Follow the procedure described above and serve your spouse with your disclosure.

b. Send your spouse a set of blank disclosure forms and a letter describing his/her legal duty to serve you with a disclosure. Send these both by regular and certified mail, return receipt requested.

c. Keep a copy of the letter. d. Give your spouse a reasonable time – at least 30 days – to comply.

e. If you receive no cooperation, use the Judicial Counsel declaration form (#____ on our forms list) to describe the efforts you made to get your spouse to comply with the law. Attach a copy of the letter you sent to your spouse as an exhibit. If you need more space, use an additional page, title it “Attachment To Declaration”, and type the case number at the top of the additional page. A sample attachment is form #____ on our forms list.

f. Keep the declaration in your file to be submitted to the court later.

Checklist – Step Five Preliminary Declaration Of Disclosure

____ Prepare Your Preliminary Disclosure Package ____ Declaration Of Disclosure (Form #11) ____ Schedule Of Assets & Debts (Form #19) ____ Income & Expense Declaration (Form #22) ____ Mail The Preliminary Disclosure Package To Your Spouse ____ Prepare Proof Of Service By Mail (Form #7) – Keep In Your File

____ Prepare Declaration Regarding Service Of Declaration Of Disclosure (Form #18)

____ File Declaration Re Service Of Dec. (Form #18) With The Court But What If Your Spouse Won’t Cooperate? ____ Compliance By Your Spouse ____ If Your Spouse Will Cooperate – Follow Above Procedure ____ If Your Spouse Will Not Cooperate: ____ Mail To Your Spouse: ____ Letter Describing Spouse’s Duty (Form #___) ____ Blank Disclosure Documents ____ Keep Copy Of Your Letter In Your File ____ Give Your Spouse 30 Days To Respond

____ Draft Declaration To Court Describing Your Efforts (Example Form #____) (Keep In Your File To Submit Later.

STEP SIX: FINAL DECLARATION OF DISCLOSURE 1. Overview: As indicated in the overview discussion at Step 5 (Preliminary Disclosure), California law requires that the parties make two separate disclosures of their assets, liabilities, and financial condition. The first “Preliminary Disclosure” occurs early in the process – either at the time of the filing of the initial papers or at or before the signing of a settlement agreement. The second, “Final Disclosure” is far more detailed and comprehensive than the Preliminary Disclosure and must be made either (1) "before or at the time the parties enter into an agreement for the resolution of property or support issues", or (2) if the case goes to trial, "no later than 45 days before the first assigned trial date." [California Family Law Code § 2105(a)]. The preliminary declarations of disclosure are intended to be only general inventories of assets and liabilities. All assets and liabilities need to be listed but, unlike the “final” disclosure, property characterization and valuation details are not required. By contrast, the final declarations are far more than mere general inventories. Family Code § 2105(b) provides that each party's final declaration of disclosure "shall include" all of the following information:

a. All "material facts and information" regarding characterization of "all assets and liabilities." [California Family Code § 2105(b)(1)]

b. All "material facts and information" regarding valuation of all assets contended

to be community or in which it is contended the community has an interest. [California Family Code § 2105(b)(2)]

c. All "material facts and information" regarding the amounts of obligations

contended to be community obligations or for which it is contended the community has the liability. [California Family Code § 2105(b)(3)]

d. All "material facts and information" regarding the earnings, accumulations and

expenses of each party that have been set forth in the income and expense declaration (below). [California Family Code § 2105(b)(4)]

e. An "accurate and complete written disclosure of any investment opportunity

that presents itself after the date of separation, but that results from any investment of either spouse from the date of marriage to the date of separation, inclusive." [California Family Code § 2102(b)]

f. Updated income and expense declarations: An updated income and expense

declaration must be served along with each party's final declaration of disclosure unless a current income and expense declaration is already on file. [California Family Code § 2105(a) & (c)]

2. Decide Whether To Waive Final Disclosure: In the following narrow circumstances, the mutual exchange of final declarations may be excused:

a. Stipulated Mutual Waiver: Under California Family Code § 2105(c)], the parties may stipulate to a mutual waiver of the final declaration of disclosure by (a) executing a waiver in a marital settlement agreement, (b) stipulated judgment, or (c) a stipulation entered in open court.

The written mutual waiver must contain the following statements (Family Code § 2105(c):

1) Both parties have complied with Family Code § 2104 and their preliminary declarations of disclosure have been completed and exchanged;

2) Both parties have completed and exchanged a current income and

expense declaration; 3) Each party has knowingly, intelligently and voluntarily entered into the

waiver; and 4) Each party understands that by signing the waiver, he or she may be

affecting his or her ability to have the judgment set aside as provided by law.

Note: Our Sample Marital Settlement Agreement (form #____) contains

all of these statements. b. Petitioner's Waiver In Default Cases: Under Family Code § 2110, in “default

cases” wherein the respondent has neither filed a response nor entered a general appearance, the petitioner may waive the final declaration of disclosure requirements. Such a waiver exempts petitioner both from serving a final disclosure declaration on respondent and from receiving respondent's final disclosure declaration. But keep in mind – the petitioner must still serve (and file proof of service of) a preliminary declaration of disclosure.

Note: This does not apply to an “uncontested” or “stipulated judgment” scenario wherein the respondent files a Response or general appearance and then enters into an agreement to resolve the issues. Such a scenario is not a "default" case for this purpose and waiver of the final disclosure is not permitted in such cases. [California Family Code § 2101(b)]

c. “Good Cause”: Under California Family Code 2105(a) for "good cause," the

court may exempt the parties from compliance with the requirement of service of a final disclosure declaration and accompanying current income and expense declaration. Just what constitutes “good cause” is a matter which is left to the sound discretion of the court. For sure, "good cause" exists in the fairly common case in which a party seeking entry of judgment has fully complied with the final declaration requirements and the other party stubbornly refuses to cooperate to file his/her disclosure.

Caveat: Though you may qualify for a waiver of the final disclosure, you may not want to do it. If you waive your right to a full disclosure and later find out that your spouse was less than truthful with you about that Swiss bank account he/she had been building for the previous 20 years, you will have a very difficult time reopening the case to get your share of the money. 3. Option A - Waive Final Disclosure: If you qualify to waive the final disclosure and you decide to do so, here are the procedures you must follow:

a. Stipulated Mutual Waiver In “Uncontested Cases”: Our sample settlement agreement (#____ on the forms list) contains a statement which complies with Family Code § 2105(c). Make sure that your final agreement contains the necessary language.

b. Petitioner's Waiver In “Default” Cases: To comply with Family Code § 2110,

in “default cases” wherein the respondent has neither filed a response nor entered a general appearance, you must file with the court a sworn declaration attesting to the § 2110 waiver. Under California Rules of Court Rule 1292.05, the Declaration Regarding Service (#____ on our forms list) should be used for this purpose, adding petitioner's statement "Service of the Final Declaration of Disclosure has been waived pursuant to Family Code section 2110."

c. “Good Cause”: In order to avail yourself of the “good cause” exception to the

final disclosure requirement, you will have to convince the court that good cause exists. Some courts may allow this to be done by way of a declaration regarding the particular circumstances of your case. Other courts may require that you make a motion and appear to explain the need for the waiver. Motion practice is beyond the scope of this discussion and you should probably contact an attorney should you find yourself in a situation requiring a showing of good cause.

4. Option B – Prepare Final Disclosure Package(s): If you do not qualify for a waiver or you do not want to waive the final disclosure, you and your spouse will need to following procedure:

a. Prepare The Documents:

1) Declaration of Disclosure (#____ on the forms list) This is merely a skeleton "cover sheet" to be used for both the "preliminary" and "final" declarations of disclosure. The documents attached to the Declaration provide the details:

2) Schedule of Assets and Debts (#___ on the forms list) 3) Income and Expense Declaration (#___ on the forms list) 4) Statement of all material facts and information regarding valuation of all

assets that are community property or in which the community has an

interest. This is not a form and must be specially drafted. You may use the generic declaration (Judicial Counsel Form MC030; form #19 on our forms list) to make up the statement.

5) Statement of all material facts and information regarding obligations for

which the community is liable. This is not a form and must be specially drafted. You may use the generic declaration (Judicial Counsel Form MC030; form #____ on our forms list) to make up the statement.

6) An accurate and complete written disclosure of any investment

opportunity presented since the date of separation. This is not a form and must be specially drafted. You may use the generic declaration (Judicial Counsel Form MC030; form #____ on our forms list) to make up the statement.

7) Declaration Regarding Service Of Final Declaration Of Disclosure

(#___ on the forms list) 8) Proof Of Service By Mail (#___ on the forms list) indicating that all of

the above documents have been served by mail on the opposing party.

b. Make Copies: Make 2 copies of the Declaration Regarding Service Of Declaration Of Disclosure and just 1 copy of everything else. The Original of the Declaration Regarding Service goes to the Court. One copy of each document is sent to the other party. A copy of the Declaration regarding service and the originals of all other documents stay in your file.

c. Exchange Disclosure Documents: You and your spouse will both need to

mail copies of your disclosure packages to each other. The “Declaration Regarding Service Of Declaration Of Disclosure” will indicate when you did this.

d. File The Notice Regarding Service With The Court: File the original of the

Declaration Regarding Service Of Declaration Of Disclosure with the court.

Checklist – Step Six Final Declaration Of Disclosure

____ Decide Whether To Waive Final Disclosure ____ Option A - Waive Final Disclosure ____ Stipulated Mutual Waiver ____ Petitioner’s Waiver (If You Have A Default Case) ____ Motion For Exemption For “Good Cause” ____ Option B – Prepare & Final Disclosure Packages ____ Prepare Documents ____ Declaration Of Disclosure (Form #___) ____ Schedule Of Assets & Debts (Form #___) ____ Income & Expense Declaration (Form #___)

____ Statement Of Material Facts Re Community Property(See Sample Form #____)

____ Statement Of Material Facts Re Community Property Debts (See Sample Form #____)

____ Written Disclosure Of Any Investment Opportunity Presented Since Date Of Separation (See Sample Form #____)

____ Declaration Regarding Service Of Final Declaration Of Disclosure (Form #____)

____ Proof Of Service By Mail (Form #___) ____ Make Copies ____ 2 copies Declaration Re Service Of Declaration Of Disclosure ____ 1 Copy Of All Other Documents. ____ Exchange Disclosure Documents ____ Mail Documents To Your Spouse ____ Your Spouse Mails To You ____ File The Notice Regarding Service With The Court

STEP SEVEN: PREPARE & SIGN A MARITAL SETTLEMENT AGREEMENT 1. Overview: There are really only two ways for you to resolve custody/visitation, support, property, and debt issues in your case – either you and your spouse sign a marital settlement agreement (“MSA”) resolving them or the court will step into the picture and resolve them for you. If you can find a way to come to a meeting of the minds with your spouse, a) you will eliminate the unpredictability associated with court-imposed judgments, b) you will save yourself lots of time and money and, 3) – take our word on this - you will save yourself LOTS of grief. So, if you have not already done so, now that you have complied with all of the disclosure requirements in steps 5 and 6, you should try to negotiate and sign an agreement. 2. When To Get It Signed: In a word, the time to get the agreement is NOW (preferably yesterday). Long years of experience with these matters tells us that the longer it takes to get an agreement signed, the less likely it will be that you will get it signed at all. As a general rule, relations between the parties after separation tend to get worse before they get better. We tell our clients that there is generally a small window of opportunity to get an agreement signed – perhaps a couple of months – before the negative psychology of divorce takes over. If the agreement is not signed while this window is open, you may find yourself in a complicated and rancorous and expensive “contested” divorce situation wherein your assets will be divided between your attorneys and not between yourselves. To repeat – GET IT SIGNED NOW!!

BUT CAVIAT: You must have satisfied the Preliminary and Final Disclosure requirement in Steps 5 and 6 before you can enter into an enforceable MSA. Therefore make sure that you have satisfied the Preliminary Disclosure requirements and that your MSA contains a mutual waiver of the Final Disclosure requirements.

3. Prepare A First Draft Of The MSA: If you have complex custody/visitation, support, or property issues, we do not recommend that you draft the MSA yourself. If you don’t feel comfortable taking on this task, you might want to seriously consider having an attorney help you draft it. If you decide to tackle this task yourself, proceed as follows:

a. Use The Sample MSA As A Guide: Take a look at our Sample MSA (#____ on the forms list. This is meant to be used only as a guide – you will have to modify it to meet your particular needs. Delete the parts of the agreement which do not apply to your situation and, if there are additional issues, add the appropriate language.

c. General Drafting Considerations

1) Cover All Issues: The MSA is going to be attached to the final Judgment and it will be the order of the court. If you fail to deal with all of the issues in your divorce, it will be difficult, if not impossible, for you to reopen the case and deal with them later. It is therefore extremely important that you set out your agreement on ALL of the issues including, but not limited to:

- Characterization of property interests and characterization and

division of the community estate (assets and debts); - Adjustment of reimbursement claims and income tax issues; - Payment of child support, spousal support and attorney fees and

costs; - Child custody and visitation; and - Certain waivers and indemnification agreements between the

spouses. 2) Let Clarity Be Your Guide: Your agreement is going to be reviewed by

a Judge who wants to make sure that you have orders which are clear and easy to understand and which can be enforced. Anyone reading your custody/visitation orders should be able to know with certainty who has custody at any particular time. Anyone reading child or spousal support orders should be able to determine the amount of support, when it is to be paid, and when it is to terminate. Your property and debt division orders should leave no question as to who gets each item of property and who is going to be responsible for the payment of each debt.

a. Meet face-to-face if you can. b. Involve a third person acceptable to both of you to act as a mediator. c. Both parties should bring completed property declarations, income and

expense declarations, and underlying documents. d. You should bring with you a proposed MSA (with copies for the other party

and the mediator). This is particularly important – if you do not have something in black and white to talk about, you will be talking about abstractions and not concrete proposals and your discussion will be less likely to yield a final agreement.

e. Establish rules for the discussion. We suggest that you both agree at the

outset that a) neither party will make a comment which would constitute a “personal attack” against the character of the other party, and, 2) both parties will speak without interruption. The minute either of these rules is violated,

the mediator should immediately enforce it. f. Deal with one issue at a time and resolve it before moving on to the next. g. Keep the objective of the meeting constantly in mind – it is to walk out of the

meeting with a complete agreement which can be prepared and signed without further discussion. (In fact the very best procedure is to put your proposed agreement up on the computer screen, work together with your spouse to produce the final version, print it out, and sign it before your negotiation session concludes.)

5. Sign & Notarize: When the final draft of the MSA has been completed both parties must sign it in front of a notary. 6. Sign An Appearance, Stipulation & Waiver: In order for the matter to proceed without the necessity of an appearance by your spouse, you will both need to sign an Appearance, Stipulation & Waiver form (#____ on our list). Put it in your file – you will need to submit it to the court later.

Checklist – Step Seven Prepare & Sign A Marital Settlement Agreement

____ Prepare A First Draft Of The MSA ____ Negotiate The Final Terms With Your Spouse ____ Prepare The Final Draft ____ Sign & Notarize The MSA ____ Sign an Appearance, Stipulation & Waiver form (both parties must sign)

STEP 8 – OBTAIN JUDGMENT BY MAIL OR SET “IN-PERSON” HEARING

1. Overview: Until now, you have been dealing with court clerks in filing papers and with your spouse in serving papers and negotiating a settlement agreement. To bring the matter to a final conclusion, you now need to submit your proposed Judgment to a Judge or Commissioner for his or her signature. As you proceed to the conclusion of the process you need to keep in mind that the particular procedure you may follow depends on 1) whether or not you have been able to dispose of all of the issues by way of a Marital Settlement Agreement and, 2) whether the matter is categorized as a “Default” or an “Uncontested” matter.

a. “Default”: Your matter is categorized as a “Default” if, within the time allowed to respond to the petition (usually 30 days after completed service), he or she fails to file either a response or appropriate responsive motion. (Code Of Civil Procedure § 585(b)].

Be aware that the “due process” requirements for default and uncontested matters are not the same. If your spouse has defaulted, he has basically given up his right to have his day in court and the court will therefore bend over backwards to protect his/her rights. Ergo the following limitations:

1) Relief Limited To Scope Of The Petition: The general rule is that

default judgment may only be granted for the specific relief requested in the petition served on respondent. The court will not grant you a Judgment for anything more than you have requested in your Petition. Thus, spousal support cannot be ordered in a default case unless you have checked the box in the Petition asking for it and the court cannot award any asset or obligation that was not identified as alleged community property in the pleadings served on respondent.

Exception – Child Support: A preprinted "warning statement" on the forms automatically notifies the parties that child support is in issue. Therefore child support may be ordered whether or not you have made a specific request for it.

2). Declaration Of Disclosure: Is it necessary in a default situation for the

petitioner to jump through all of the hoops necessary to satisfy the “preliminary disclosure” and “final disclosure” requirements in steps 5 and 6? As of this writing, the answer appears to be maybe. In a recent California cast, Marriage of Andresen, 28 Cal.App.4th at 880, 34 Cal.Rptr.2d at 151; said that petitioner satisfies due process in a default case simply by checking all applicable boxes and providing the corresponding information called for by the Judicial Council form petition and that therefore neither the "preliminary" declarations of

disclosure nor the "final" declarations of disclosure aught to be required.

Caviat: The final disclosure need not be filed. However, there is still some question as to whether the preliminary declaration needs to be filed so it is probably best to follow the procedure outlined above in Step Five (6) for service of the preliminary disclosure.

b. “Uncontested”: A matter is categorized as “uncontested” when:

1) Your spouse files a written notice of appearance in lieu of a response; or

2) Your spouse files a response and you and your spouse later agree in

writing that the matter may proceed as uncontested (using the “Appearance, Stipulation, & Waiver” form); or

3) Your spouse fails to file a response within the time permitted by the

court after his or her motion to quash the proceedings, to quash service of summons, or to transfer the proceedings, or after denial of writ of mandate.

An “uncontested” case proceeds "as if a default had been entered". No default needs to be entered and it is set for hearing on the uncontested calendar.

Note: In a “default” case the preliminary disclosure can be waived by the

Petitioner. Not so in an “uncontested” case wherein the exchange of final disclosure declarations can be waived only on the parties' mutual stipulation in compliance with Family Code § 2105(c).

Whatever the case may be – your judgment may only be obtained by testimony. In some cases such testimony must be given in an in-person court appearance in front of a judge or commissioner. In most “default” and “uncontested” cases, no personal appearance is required and all of the necessary testimony may be given by affidavit mailed to the court. Under Family Code § 2336, unless a personal appearance is required, uncontested and default dissolutions may be obtained by mail. However, under Family Code § 2336(b) your personal appearance may be ordered "when it appears to the court that any of the following circumstances exist":

a. Reconciliation of the parties is "reasonably possible" (Family Code § 2336(b)(1));

b. A proposed custody order is not in the child's best interests (Family Code §

2336(b)(2)); c. A proposed child support order is "less than a noncustodial parent is capable

of paying" (Family Code § 2336(b)(3)); or

d. A party's or "interested person's" personal appearance "would be in the best

interests of justice" (Family Code § 2336(b)(4)). The Judge obviously has very broad discretion to order you to come to court for an in-person hearing. Local court rules may require you to do so 1) where there are significant property/debt division issues which have not been disposed of by your Marital Settlement Agreement or, 2) where a child support order does not seem fair. 2. Choose Your Alternative: Begin by deciding whether you must set a formal “in-person” hearing or whether you will be able to obtain your judgment by mail. (See the discussion above). Generally speaking, you may choose to apply for a judgment by mail where all of the issues in your case have been resolved by way of a properly executed written agreement and local court rules don’t require your personal appearance. 3. Alternative A – Obtain Judgment By Mail: If you have disposed of all of the issues in your divorce by way of a properly drafted and signed Marital Settlement Agreement and there are no circumstances (such as major issues not covered by the MSA) which the court will want to hear evidence on in court, you may attempt to obtain your judgment by mail. Local court rules concerning this process vary greatly from court to court. The following procedure will work for you in most but not all cases. This is another instance in which you need to prepare for failure - your papers may be kicked back to you with instructions to jump through some additional procedural hoops or to file additional local court forms.

A. Choose Alternatives: Procedures and forms to obtain a judgment by mail are different for “default” and “uncontested” cases. There are two possibilities:

1) Default With MSA: Your spouse files no Response but does execute a Marital Settlement Agreement. You may attempt to obtain your judgment by mail but be prepared for failure – the court may want to have you come to court for an in-person hearing.

2) Uncontested: Your spouse files a Response but the matter is later settled, a Marital Settlement Agreement is signed, and the parties agree that the court may treat the matter as a default. In this case you may attempt to obtain your judgment by mail.

Alternative 1: Procedure In “Default” Cases With A Marital Settlement

Agreement: In “default” cases (where your spouse has not filed a response), the following is the general procedure.

1). Prepare Request To Enter Default: Before your case can proceed to

judgment, you must enter your spouse’s “default”. This is done by filing a “default packet” consisting of the following documents:

a) Proof Of Service Of Preliminary Declaration Of Disclosure (Form

#___)

b) Request To Enter Default (Form #___ on the forms list) c) Proof Of Original Service (Form #___ on the forms list) If you

have followed the instructions above, this document will already be in your file.

d) Two postage prepaid envelopes – one addressed to yourself and the other addressed to the defaulting Respondent.

e) Financial Declaration – You are required to file a Financial Declaration unless one of the following exceptions applies:

-- No demand is being made for money, property, costs or

attorney fees (i.e., property division, support or fees and costs not in issue);

-- The declarations were previously filed in the action and

the information is still current; or -- The issues subject to the court's disposition are dealt

with in a written agreement between the parties.

2. Prepare “Judgment Packet”: After the default is entered, you may

apply to the court for the relief sought in your Petition by filing the original and two copies of a “judgment packet”. The “Judgment Packet” contains the following:

a) Declaration For Default Or Uncontested Dissolution (Form #___) b) Judgment (Form #___) with Marital Settlement Agreement

attached. c) Notice Of Entry Of Judgment (Form #___) d) Two envelopes with the court’s address as the return address –

one addressed to your spouse and one addressed to you e) Declaration Regarding Service Of Final Declaration Of

Disclosure (form # ___) ONLY IF IT HAS NOT BEEN WAIVED IN YOUR MARITAL SETTLEMENT AGREEMENT.

f) Wage Earnings And Assignment Order (Form #____) IF child support is ordered and the parties have not stipulated to a stay of service of the earnings assignment. If you have agreed to a stay of service, a 1285.72 stay order (Form #___) must be submitted. [L.A. Super.Ct. Rule 14.7(b)(4)

g) Order/Notice To Withhold Income For Child Support (Form # ___) h) Other Documents: Local Court rules may also require one or more of

the following:

(1) An Income and Expense Declaration (form#___) including petitioner's "best estimate" of the other party's income whenever petitioner requests child support, spousal support (except if petitioner reserves the court's jurisdiction to award spousal support in the future), waiver or termination of spousal support in a more-than-10-year marriage, family support or attorney fees. [S.F. Uniform Rule 11.45.D]

(2) Property Declaration (form #___) proposing a division of the community estate if there are assets and/or debts to be disposed of by the court. [S.F. Uniform Rule 11.45.E]

Alternative 2 - Procedure In “Uncontested” Cases With A Marital Settlement Agreement: In “uncontested” cases (where your spouse has filed a response and later entered into a Marital Settlement Agreement), the following is the general procedure.

1). Prepare “Uncontested” Judgment Packet: . The of the following

documents:

a) Basic Documents: The following basic package is required by all courts:

(1) Appearance, Stipulation & Waiver (Form #___) (2) "Declaration for Default or Uncontested Dissolution or

Legal Separation" (Form #___) (3) Proposed judgment form with Marital Settlement

Agreement attached and incorporated by reference (Form #____; plus MSA form #____)

(4) Notice Of Entry Of Judgment (Form #____). (5) Two Declarations Of Service Of Preliminary Declaration

Of Disclosure – one from you and one from your spouse if they have not already been filed (Form #____)

(6) Two Declarations Of Service Of Final Declaration Of

Disclosure – one from you and one from your spouse unless the final disclosure has been waived in your MSA. (Form #___)

(7) Two current Income And Expense Declarations – one

from you and one from your spouse unless the final disclosure has been waived in your MSA.

(8) Wage Earnings And Assignment Order (Form #____) IF child

support is ordered and the parties have not stipulated to a stay of service of the earnings assignment. If you have agreed to a stay of service, a 1285.72 stay order (Form #___) must be submitted. [L.A. Super.Ct. Rule 14.7(b)(4)]

(9) Order/Notice To Withhold Income For Child Support (Form

#___) (10) Two stamped envelopes – one addressed to you and

one addressed to the other party so that the court can

return copies of the papers to the parties.

a) Other Documents Which May Be Required by Local Court Rules: The following basic package is required by all courts:

(1) Wage And Earnings Assignment Order (Form #___) unless the

parties have stipulated to a stay of service of the earnings assignment, in which event a Ca Rules of Court Rule 1285.72 stay order must be submitted. [L.A. Super.Ct. Rule 14.7(b)(4)]

(2) If a proposed uncontested judgment is not a stipulated

judgment and includes a property division, petitioner must file (i) a fully completed property declaration; and (ii) a current income and expense declaration if provisions are included for child support, spousal support or a waiver thereof, and or attorney fees and costs. [S.D. Super.Ct. Rules, Div. V, Fam. Law Rule 11.1--neither spousal nor child support will be granted unless an estimate of respondent's income is included in the income and expense declaration]

2) Prepare Copies: When you go to court to file the “uncontested”

package, you will need: * The originals to file with the court. * One copy of each to conform (stamp) for your file * One copy to conform and serve on your spouse

Note: We strongly suggest that you have 3 copies conformed in case the service copy is lost.

Note: Many local rules require that you two-hole punch at

the top all documents to be filed with the court.

3) File With The Court Clerk: Go to the court clerk’s office and take your “uncontested” package with you. Bring a check with you just in case your local court has found a way to charge you for this filing (but you probably won’t need it).

4) If Your Papers Are In Order: As with every encounter with the court

clerk, be prepared for the possibility of an unpleasant experience. Your papers may be rejected for any number of reasons. Local court rules and procedures vary from court-to-court and you may be sent home to fill out another local form or two. If everything is in order, the clerk will take your papers and give you back a set of conformed (stamped) copies.

4. Alternative B – Set “In-Person” Court Hearing: There are only two ways to handle Issues In court - either the parties resolve them In a properly executed written

agreement acceptable to the court or the court resolves them based on evidence presented to the court. In cases where the court needs to see evidence It may either allow you to present It by way of affidavit or It may require that you come to court to present the necessary evidence In front of the judge. The court has very broad discretion to require you to come to court to “prove-up” your case in a formal in-person hearing. Generally this will be necessary either where your spouse has filed to file any response or where your Marital Settlement Agreement does not dispose of all of the issues. Procedures and forms necessary to set an in-person hearing vary from court to court. If you live in Los Angeles County, you will file a “Request For Trial Setting.” San Diego, San Francisco, and most other counties require you to file an “At-Issue Memorandum”. To complicate matters, (courts just love to complicate matters) local forms and procedures to set hearings are always changing.

A. Check Procedure In Your Local Court: Call the court clerk and find out what procedures and forms are necessary to set your hearing. Be sure to tell the clerk that you have a “default” or “uncontested” matter. Procedures and forms for some of the larger jurisdictions are described in the next section but, since they are always changing, it is still a good idea to check with the clerk before filing.

B. Procedures In Particular Jurisdictions:

1) Los Angeles: _____ 2) San Francisco: ____ 3) Sacramento: ____ 4) San Diego: ____ 5) Orange County: ____

Checklist – Step Eight Judgment By Mail Or “In-Person” Hearing

____ Decide Whether To Request Judgment By Mail Or Set An In-Person

Hearing ____ Choose Judgment By Mail if all issues are fully resolved by properly

executed written agreement. ____ Choose “in-person” hearing where:

____ All issues are not resolved by written agreement or; ____ Your local court rules require an “in-person” hearing

____ Alternative A: Obtain Judgment By Mail

____ Choose Alternatives ____ Default With Marital Settlement Agreement ____ Uncontested

____ Alternative 1 – Default With MSA ____ Prepare Request To Enter Default

____ Proof Of Service Of Preliminary Declaration Of Disclosure (Form #___)

____ Request To Enter Default (Form #___ on the forms list) ____ Proof Of Original Service (Form #___ on the forms list)

If you have followed the instructions above, this document will already be in your file.

____ Two postage prepaid envelopes – one addressed to yourself and the other addressed to the defaulting Respondent.

____ Financial Declaration – You are required to file a Financial Declaration unless one of the following exceptions applies:

____ No demand is being made for money, property, costs or attorney fees (i.e., property division, support or fees and costs not in issue);

____The declarations were previously filed in the action and the information is still current; or

____The issues subject to the court's disposition are dealt with in a written agreement between the parties.

____ Prepare Judgment Packet ____ Declaration For Default Or Uncontested Dissolution

(Form #___) ____ Judgment (Form #___) with Marital Settlement

Agreement attached. ____ Notice Of Entry Of Judgment (Form #___) ____ Declaration Regarding Service Of Final Declaration Of

Disclosure (form # ___) ONLY IF IT HAS NOT BEEN WAIVED IN YOUR MARITAL SETTLEMENT AGREEMENT.

____ Wage Earnings And Assignment Order (Form #____) IF child support is ordered and the parties have not stipulated to a stay of service of the earnings assignment. If you have agreed to a stay of service, a 1285.72 stay order (Form #___) must be submitted. [L.A. Super.Ct. Rule 14.7(b)(4)

____ Order/Notice To Withhold Income For Child Support (Form # ___)

____ Two envelopes with the court’s address as the return address – one addressed to your spouse and one addressed to you

____ Other Documents: Local Court rules may also require one or more of the following:

____ An Income and Expense Declaration (form#___) including petitioner's "best estimate" of the other party's income whenever petitioner requests child support, spousal support (except if petitioner reserves the court's jurisdiction to award spousal support in the future), waiver or termination of spousal support in a more-than-10-year marriage, family support or attorney fees. [S.F. Uniform Rule 11.45.D]

____ Property Declaration (form #___) proposing a division

of the community estate if there are assets and/or debts to be disposed of by the court. [S.F. Uniform Rule 11.45.E]

____ Prepare Copies (minimum of 3) ____ File With The Clerk

____ Alternative 2 – “Uncontested” With MSA ____ Prepare The Judgment Packet

____ Basic Documents ____ Appearance, Stipulation & Waiver (Form #___) ____ "Declaration for Default or Uncontested

Dissolution or Legal Separation" (Form #___) ____ Proposed judgment form with Marital Settlement

Agreement attached and incorporated by reference (Form #____; plus MSA form #____)

____ Notice Of Entry Of Judgment (Form #____). ____ Two Declarations Of Service Of Preliminary

Declaration Of Disclosure – one from you and one from your spouse if they have not already been filed (Form #____)

____ Two Declarations Of Service Of Final

Declaration Of Disclosure – one from you and

one from your spouse unless the final disclosure has been waived in your MSA. (Form #___)

____ Two current Income And Expense Declarations

– one from you and one from your spouse unless the final disclosure has been waived in your MSA.

____ Wage Earnings And Assignment Order (Form #____)

IF child support is ordered and the parties have not stipulated to a stay of service of the earnings assignment. If you have agreed to a stay of service, a 1285.72 stay order (Form #___) must be submitted. [L.A. Super.Ct. Rule 14.7(b)(4)]

____ Order/Notice To Withhold Income For Child Support

(Form #___) ____Two stamped envelopes – one addressed to you

and one addressed to the other party so that the court can return copies of the papers to the parties.

____ Other Documents Which May Be Required By Local

Court Rules: ____ Wage And Earnings Assignment Order or

waiver thereof. ____ Completed Property Declarations ____ Completed Income & Expense Declarations

____ Prepare Copies (minimum of 3) ____ File With The Clerk

____ Alternative B: Set “In-Person” Court Hearing

____ Check Procedures And Forms Required In Your Local Court

____ Procedures In Particular Jurisdictions: ____ Los Angeles: _____ ____ San Francisco: ____ ____ Sacramento: ____ ____ San Diego: ____ ____ Orange County

STEP NINE: THE “IN-PERSON” HEARING (WHEN JUDGMENT BY MAIL IS NOT AN OPTION)

STEP TEN: SERVE THE WAGE ASSIGNMENT ORDER ON YOUR SPOUSE’S EMPLOYER

APPENDIX A: FORMS

APPENDIX B: CALIFORNIA STATUTES

INDEX