Part 3 of our 10 part series
Any legal matter, particularly a matter heard in Family Court, is driven by the preparation of forms. There are specific forms required for filing for a divorce (or legal separation), forms to be completed to meet disclosure requirements and a stack of forms filed at the end of a matter before the court deems the parties officially divorced. There is a growing trend in California of people completing their divorce “in propria persona” (commonly referred to as “pro per”), Latin "for one's self," or someone who is acting as his or her own attorney in a legal matter. Many parties try to “do” their own divorce as a pro per but run into difficulty trying to understand the laws and the confusing paperwork involved. Pro per parties run a higher risk of the court rejecting their forms due to errors in preparation, requiring them to revise and refile, which may add days or weeks to their divorce time line. A Divorce Mediation Group (DMG) mediator, who is also an attorney, may prepare and file all divorce paperwork in for our mediation clients.
3 Stages of Divorce Forms
In any uncontested divorce, there are three stages of form preparation. (NOTE: an uncontested divorce is one in which the parties reach their agreements without asking the Court to make orders, as in a mediated divorce. In a contested matter, there are many other possible scenarios requiring additional, sometimes very complex and expensive, document preparation. DMG does not prepare forms for a contested matter.)
INITIAL FILING: In order to file for divorce in California, one party (the Petitioner) files a Summons and Petition, along with other forms, to initiate the process. The responding party (the Respondent) files a Response (and another form when there are minor children of the marriage). Both parties complete their forms, take them to court for filing, have the other party served, and then complete and file Proofs of Service. There are numerous boxes on the Petition and Response to check regarding custody, child and spousal support and the division of property. It is important that the parties understand the choices they are making when they check a box.
When a couple mediates their divorce with Divorce Mediation Group, they may choose to have their mediator prepare their initial moving papers.The mediator will help them understand the language contained on the forms to ensure they make informed decisions about how the forms are completed.After the forms are reviewed and approved, they are sent by our office for filing with the court.No service on the other party is required because the Petition and Response are filed simultaneously.
It is important to note that the parties may opt to prepare their own moving papers or, oftentimes, a couple doesn’t consider mediation until long after they have filed for divorce and have already prepared their moving papers.It is ultimately up to the parties to agree upon how they proceed with the actual filing for divorce.
DECLARATIONS OF DISCLOSURE: The law requires that both parties to a divorce or legal separation complete and exchange their Preliminary Declarations of Disclosure (DODs), a series of three documents itemizing all assets, debts, income and expenses of the parties. The preparation of DODs serves two important purposes (besides ensuring the parties remain in compliance with the law):
- The full disclosure of all financial information by both parties allows the parties to enter into settlement discussions with “eyes wide open.”
- All agreements concerning assets and obligations are included in the parties’ Marital Settlement Agreement (MSA), the document filed at the end of a divorce that provides the Court with the comprehensive “rules and regulations” of the divorce. The mediator relies heavily on the parties’ DODs when drafting the MSA. A well-prepared set of disclosure documents provides a clear road map of issues to be made part of the MSA.
In a mediation setting, the DODs are not filed with the court but are prepared by the parties and exchanged.(In a contested divorce, it is possible that the disclosure documents will be filed with the court.)DMG offers assistance and guidance for the parties during the preparation of their DODs and facilitates their exchange to ensure the parties meet this important requirement.
MARITAL SETTLEMENT AGREEMENT AND JUDGMENT FORMS: Once the parties have reached agreements on all issues (division of property, debt, support, custody, etc.), these agreements must be reduced to a written document. This document is called a Marital Settlement Agreement (MSA). The MSA, along with the other judgment forms, make up the packet filed at the end of a divorce. The clerk reviews the packet before forwarding it to the judge for his or signature. Upon the judge’s signing of the documents, the divorce is final.
Most couples who mediate with DMG ask their mediator draft the MSA.However, if the parties are represented by attorneys, they may certainly ask that one of the attorneys draft the MSA and judgment forms.The mediator will quote a fee for the preparation of the judgment packet.When drafted by DMG, the MSA preparation fee includes:
- Drafting of the MSA
- Reasonable revisions to the MSA
- A complimentary review session with the mediator to ask any final questions about the terms of the MSA
- Preparation of judgment forms
- Filing of judgment packet with the court
It is important to remember that parties who enter into a divorce may choose who prepares the many forms required by the court. DMG is available to prepare and file all divorce forms, or only those that the parties request we prepare.