What Happens First In Divorce Cases?

Hossein Berenji, Dec 09, 2016

When it comes to criminal investigations, police often say that the first 48 hours are critical. After that time, memories fade, evidence is lost, suspects go into hiding, and the chance for a successful resolution basically plummets.

Things do not happen quite that quickly in California divorce cases and the early results are only preliminary, but the first 480 hours (20 days) are arguably the most critical ticks of a clock in these matters. Absentee spouse cases, a phrase that is explored below, are sometimes almost completely resolved in the first twenty days. The divorces cannot be finalized until the waiting period expires, but in many cases, absentee spouse petitioners are simply waiting for the clock to wind down at this point.

Within the first twenty days, most judges have held at least one preliminary hearing in contested divorce cases. These temporary orders nearly always include provisions concerning child custody, child visitation, and other important issues. Although the temporary orders are subject to review later — especially in cases that involve mediation and/or social services investigations — inertia sets in and it is never easy to undo what has already been done.

That’s why if you’re considering ending your marriage, you need a divorce lawyer in Los Angeles with a proven track record of success. Call Hossein Berenji today to discuss your case and find out how we can assist you.

Absentee Spouse Cases

Statistics vary by jurisdiction, but about two-thirds of divorce cases do not involve minor children. If a couple separates without children, there is typically nothing to keep them together, so the separated spouses sometimes lose touch with each other. Pragmatically, many absentee spouses do not even file divorce petitions unless and until they meet potential new spouses, and they obviously do not want to run afoul of bigamy laws.

The Fourteenth Amendment declares that no one can be deprived of life, liberty, or property without due process of law. In nearly all situations, that means notice and hearing. In contested cases, especially ones that involve children, notice is normally not an issue, because the petitioner has a current address and the respondent may even already have an attorney who will accept service of process. However, if the respondent has moved on, service can be a problem. So, there are several substitute service provisions:

  • Indirect Personal Service: If the petitioner has a valid address for the respondent, but the respondent is not there or refuses to answer the door, many judges allow substitute service after three or four unsuccessful attempts. The process server leaves the divorce papers with anyone who answers the door, and service is legally perfected.
  • Posting/Publication: If the petitioner has no valid address, the petitioner must use “due diligence” to locate the respondent. Typically, the petitioner doesn’t need to hire a private investigator or go to great lengths, unless the divorce involves a lot of property or some other concern. Instead, the petitioner can talk to friends and relatives, perform a Google search, and make other similar efforts to locate the respondent. If these efforts are unsuccessful, and they nearly always are, most judges will allow service by posting a notice on the courthouse door (if there are no minor children) or via a newspaper advertisement (if there are children involved). The notice must remain active for a prescribed amount of time, usually a couple of weeks. If there is no response, and there hardly ever is, the petitioner may obtain a divorce by default.

Uncontested divorces are much like absentee spouse divorces. A respondent can sign a waiver of citation agreeing to the divorce terms that the petitioner proposed, and after the six-month waiting period expires, the judge can finalize the divorce.

Contested Cases

Although only about a third of divorce cases involve children, these contested cases are infinitely more time consuming, and the temporary hearing goes a long way towards resolving these disputes. If the parents are already separated, and they usually are, the temporary orders usually formalize the existing parenting time arrangement, even if there are issues or concerns. In fact, most courts only upset the status quo if there are serious questions about the children’s health and safety. Some of these issues include:

  • A current social services investigation,
  • A prior investigation within the last year or so that resulted in an adverse finding,
  • An active protective order, or
  • Compelling testimony from independent fact witnesses.

In the latter situation, a party challenging the status quo can also introduce documentary evidence, like school report cards. The difference needs to be night and day, like straight As while the children were with Mom and straight Ds with Dad.

The temporary orders can be modified based on changed circumstances. For example, most judges order social services investigations in contested cases. If the social worker recommends that Father be the primary custodial parent and Mother have visitation rights, Father can ask for temporary custody based on the social study. As a practical matter, the parent with temporary custody nearly always receives permanent custody, because family law judges like stability.

Things happen quickly in California divorce cases. For prompt assistance from an experienced family law attorney in Los Angeles, contact Berenji & Associates Divorce Lawyers. We routinely handle cases throughout Los Angeles County and in nearby jurisdictions.