San Diego Divorce Information

After the filing and service of the Summons and Petition, the following steps are involved in most divorce proceedings:

Request for Order Hearing:

Either concurrently or anytime after the initial pleadings have been filed and served, the next step would be a Request for Order Hearing.  The following issues are usually addressed: child custody and visitation; child and spousal support; restraining orders; temporary use of the residence and other assets; joinder of any retirement/pension plans, request for attorney’s fees and any other relief necessary to maintain stability for your and the children’s benefit.

The first hearing will usually occur within 45 to 60 days of the date the pleadings are filed, absent any continuances.  At this hearing, all attempts will be made to enter into a Stipulation.  However, if this is not possible, the attorney’s will argue the case.  The court generally will not take testimony at this time.  If custody or visitation is an issue, the parties will have to attend Family Court Services for Mediation.  The recommendation of the counselor will be submitted to the court for review.

The purpose of the initial hearing is to maintain the status quo, to ensure the children and the supported spouse have sufficient financial resources to maintain the necessities of life, and to balance between households a common standard of living.

Discovery:

The process of accumulating information from the opposing party is called discovery.  The discovery phase is optional and depends upon the willingness of your spouse to provide necessary documents informally, or is omitted entirely when there are no assets or obligations of the marriage.

Discovery can be formal or informal.  In informal discovery, each side voluntarily exchanges information with the other side.  Formal discovery may consist of any or all of the following: depositions, interrogatories, subpoenas and requests for production of documents.  Whether to engage in formal or informal discovery, and, if formal, what types of discovery, is a tactical decision which has to be made in every case.  In informal discovery, the material that is produced is not produced under oath.

The need for discovery is greatly lessened due to the Declarations of Disclosure that are required by both parties.  Each party is required to provide this documentation at the time of the service of the Summons and Petition, or soon thereafter.  Each party must also provide this documentation again prior to trial.    In the event that the Preliminary Declaration of Disclosures do not yield all the other information required, either party may conduct discovery.  The types of discovery and their advantages and disadvantages are:

• Depositions: Depositions take place in an attorney’s office.  Only the attorneys in the case, the witness and a court reporter are present. The parties may be present.  The witness is asked questions under oath, and the questions and answers are later transcribed.  Depositions give you the opportunity to have the other party or witnesses placed under oath and cross-examined.  The examination is subject to certain rules of evidence and may be used at trial.  The major disadvantages is cost of preparing for and taking the deposition, reporter’s charges and the attorney’s review and analysis of it after it is transcribed.  A two hour deposition is approximately $400.00 excluding attorney’s fees.  When an expert is deposed, in addition to the attorney’s fees and deposition fees, you must pay the expert a reasonable fee for his or her time attending the deposition.
• Interrogatories: Interrogatories are written questions mailed to the opposing party.  Interrogatories are far less expensive than depositions, although time has to be spent preparing the interrogatories and reviewing the answers.  Interrogatories can only be sent to the opposing party, they cannot be sent to experts or other witnesses.  The disadvantage of interrogatories is that the answers to the interrogatories are prepared by the attorney rather than the client.  In a deposition, you are able to ask the questions directly to the client, and the client does not have the opportunity to consult with his or her attorney to frame the answer.
• Subpoenas: A subpoena is a court order directing parties and witnesses to appear at a certain time and place, or to appear with documents at a certain time and place, or simply to produce documents at a certain time or place.  A subpoena is a very effective way to obtain documents.  The drawback is that a subpoena must be personally served upon the person or the custodian of the records that you are seeking.  This can be a problem if the person does not want to be served.  It can also be costly if a process server has to spend some time looking for the person to be served.
• Request for Production of Documents and/or Inspection of Places or Things: This is a very effective means of discovery.  I can obtain documents from a party to the action, or to inspect places or things (for example, real property, stamp collections, coin collections, etc.).  If I cannot obtain the other party’s cooperation in our need to appraise assets, I can always resort to a request for inspection.  Similarly, I can serve a request on the other party to provide documents or access to documents.  This is an inexpensive means to discovery, but it is limited to parties; a subpoena allows us access to any person or entity.  The time limitations are much stricter for request for subpoenas.  Whether documents are produced in this manner or by subpoena, time has to be spent reviewing and analyzing them.