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Do I Have To Appear In Court To Get Divorced?

Yes, there are situations where one can get divorced without ever going to court.  The question is: Is that what you really want/need, and do you qualify?

 

Simply put, one can get divorced without going to court if there is nothing for a judge to decide.   That can happen in one of two ways:  Summary Dissolution, or Uncontested Dissolution.  They are similar, but different.

 

First it is necessary to understand that in California we have “no fault” divorce -- which simply means, one spouse no longer wants to be married.  The court is not concerned with who caused the breakup.  The typical grounds for divorce are “irreconcilable differences.”  Not wanting to be married, for whatever reason, is an irreconcilable difference.

 

Typical issues, with which the court are concerned include: property division, spousal support, child support, child custody and visitation and attorney’s fees.  These must be resolved.

 

In a Summary Dissolution, the parties have been married for five years or less, have no children, little or no property, and neither wants spousal support. In that case, both parties jointly file the petition, which means they both want the divorce and agree on everything.  They wait six months, during which time either one of them can back out, then either one of them can file the “Request for Judgment” to finalize the divorce. The divorce does not become final automatically, but only after the Request for Judgment is filed. A judge will approve it, and the parties will be returned to the status of unmarried persons without ever going to court.   This is a simple procedure, but not all qualify.

 

In an Uncontested Dissolution, the parties do not qualify for Summary Dissolution, but they are able to reach an agreement on all issues in the divorce proceeding.  An Uncontested Dissolution must still provide all the same “due process” as any contested matter.  One party, the Petitioner, files the Petition, and serves the other party, who is call the Respondent.  The Respondent has 30 days to respond, or contest, what the Petitioner is asking for.  If instead the Respondent does not contest, and the parties come to an agreement, an agreement (the Marital Settlement Agreement or stipulated Judgment) can be prepared, and submitted to the court for approval.

 

It may come as a surprise to some that an uncontested dissolution is not reserved for the less complicated cases.  The number and complexity of issues is irrelevant. Many multiple issue, high income, high asset dissolutions, including those of celebrities and the very wealthy, are often resolved this way.  It is not required that the parties agree on everything at the outset, before they file. What is important is that the parties can come to terms on their issues.  It is available to all.

 

In a likely scenario each party has an attorney to help negotiate the terms of the agreement.  In high asset cases, the negotiations may take place over a period of time, allowing for the proper evaluation of assets, and the hiring of financial experts if necessary.  If children are involved, the case may require further evaluation, to determine what is in their best interests.  After the negotiations, once agreement is reached, the attorney for one may draw up the Stipulation [or Marital Settlement Agreement, or Judgment] and the attorney for the other will review it, and once it is approved, the parties will sign and it will be submitted to the court for approval.  If all is in order, the divorce will be granted – without a court appearance.

 

This is, obviously, a simplified explanation, and there are other variations on it. There are, of course, many forms that must be submitted and procedures to be followed.  It covers all the same issues that the parties address in a “contested” dissolution. The only difference, and the clear advantage, is that the parties come to an agreement without going to court, they choose their outcome rather than being ordered, and the judge does not have to decide – and usually it is accomplished with much less time and far less expense.

 

The Law Office of Lisa Staight settles the vast majority of cases in this way.  A knowledgeable and competent family law specialist is much more likely to be able to settle a case than one who is not so sure of what to expect.  The specialist can best advise you of what your rights are and the outcome you might expect. If your case cannot be settled in its entirety, then the remaining issues must be litigated and at that point a court appearance would be necessary.

 

A settlement can mean compromise, but you should not be pressured into an agreement with which you are not comfortable or which you do not understand. You should not have to give in when you are not clear what your real options are, or because your attorney has not been able to explain them to you.

 

A settlement should not require you to skip the steps of an in-depth evaluation if that is what is required.  If there are sophisticated issues of asset valuation, for example business partnerships, or asset tracing, or issues of characterization as separate or community property, the parties, through their attorneys, can retain the necessary experts to perform the evaluation. Likewise with any sensitive issues of child custody and visitation, the parties, through their attorneys, can obtain the necessary evaluations and retain experts.

 

A thorough workup of all the issues, rather than extending the time to reach an agreement, is often the key that makes the right answer clear and promotes agreement without having to go to court.

 

The Law Officer of Lisa Staight believes that you should not have to guess, or blindly hope, for a better future for yourself or your children.  The Law Office of Lisa Staight believes that the best and only way to reach an agreement on such important issues is for you to have competent and in-depth advice on what your rights are.  At the Law Office of Lisa Staight you will be provided with expert and competent guidance, so that you can make the decisions with confidence.