When to File for Divorce or a Court Hearing: General Guidelines

        It is a common trend these days for couples who have separated to want to handle their divorce on their own or with the help of a private mediator, rather than taking the traditional legal route of hiring attorneys.  So the questions come up frequently:  “When should I file for divorce?”  or  “Do I need to file for a court hearing?”

        I list below some guidelines I follow because there is no simple answer that applies to everyone.  In some cases, couples don’t need to file right away and it can actually be counterproductive to take formal legal steps.   For example, if you and your spouse are making progress resolving issues on your own, filing right away could be seen as a hostile gesture that could push you both into a legal battle.   However, in other situations, you can lose key legal rights if you wait to file. 

        My initial advice—across the board for everyone in every state—is to have a consultation with a family lawyer before you separate or shortly after.  In an hour or two, a family lawyer can review your case and determine relevant issues, such as child and spousal support, custody, and how to manage and protect your joint assets while you are negotiating a final settlement.  (This is a service I provide to local clients and also something I cover in my Divorce Doc Workshops.)  A consultation will allow you to make the right decision, rather than acting out of fear or ignorance.  You are not required to retain the attorney or turn your case over to him (or her).  You pay only for the amount of time you spend consulting, and you can decide later whether you need more of his/her services.

        Before you consult with an attorney, go online and locate the website for the Superior Court Family Law Division in your county.  The website will help you understand the legal divorce process and how it works in your county. This will save you money and time when you meet with the lawyer because you’ll already have an idea of how the system works.

        If you can’t afford a private legal consultation, the Superior Court (Family Law Division) website for your county should have information about their self-help office (generally called the Family Law Facilitator in California). The limited hours and the large number of people waiting in line for this self-help office can make it difficult to get what you need, but this is a good place to start. Also contact your local county Bar Association to see if there are legal services available for low-income families and couples going through divorce.

Below are some general guidelines for when to file for divorce or a hearing:

To get the clock ticking

        In California, it takes 6 months and 1 day to be divorced, and the clock starts running on the day your spouse was served with the Summons and Petition for Dissolution.  So if you are in a hurry to get divorced, or if you need to be divorced by the end of the year for optimal tax purposes, these are reasons to file for dissolution right away.  Be sure to talk with your spouse in advance so you can agree to a form of legal service that will be the least upsetting and intrusive to the spouse being served with the Summons and Petition.  In California, service by mail (with an acknowledgement of receipt to be signed and returned) is usually an option.  Having your spouse served without notice is a hostile gesture that will create ill will and make it harder to negotiate a final settlement.

For Child and Spousal Support

• The rule of thumb is that if your spouse won’t pay support voluntarily, you should immediately file for dissolution and at the same time file an “Order to Show Cause” to get a court hearing on calendar.   The family court has no jurisdiction to order child or spousal support until the date you filed.   In other words, if months go by and you haven’t filed for a hearing, the court will not be able to order support for those months when you were receiving nothing.  

  To find out whether you are legally entitled to spousal and/or child support and what amount is right, consult with an attorney or access the website for your local Superior Court Family Law Division to find out the drop in hours for the Family Law Facilitator’s Office.  Another option (for child support) is to contact the Department of Child Support Services (DCCS) in your county (formerly called the District Attorney Family Support Bureau).  This service is particularly useful if you have a spouse who has disappeared or is refusing to pay any child support and it would be too costly to hire a private attorney.

• If your spouse is paying voluntarily and you trust this will continue, then it is fine not to file any papers so long as you are getting paid each month.  If he/she stops paying, you should file immediately.

• A middle ground (staying out of court but not just relying on trust) is to put your agreement in writing and then submit the document to the court.  This is called a “Stipulation and Order.”  This can all be done in writing—no court appearance necessary.  A family lawyer can help you draft it, as well as figure out the amount of support you are entitled to, and also what other terms to go into the stipulation (e.g., do you want to do wage assignment so you get paid directly by your spouse’s employer?).   You will need to file for dissolution to get a case opened.   You file the Stipulation and Order under this case number.

For Custody Matters

• Rule of thumb:  If you and your spouse can’t reach a temporary custody and parenting agreement, or you are being denied access to your children, you should file for dissolution (Petition for Dissolution and Summons) and set a hearing to have this matter decided by the court  (again, using an “Order to Show Cause”) . It can take several weeks or even months to get a hearing date, so if you are fairly sure you can’t resolve this on your own, you should file soon to get your case on the court calendar.  If you and your spouse can work something out in the meantime (either on your own or with the help of a private mediator), you can write up a Stipulation and Order and then cancel the court date.

• Note:  In California, before your custody hearing, you will be required to go to Family Court Services where a court mediator will try to help you reach an agreement.  The court mediator will make a custody/parenting plan recommendation to the judge if you can’t agree to something during the mediation. At a court hearing, the judge makes his decision based on your single mediation with the court mediator and what he knows about your case from the filed declarations and the short oral argument made by your attorney—which isn’t a lot of information.  For this reason, I generally recommend that couples hire a private family law mediator to try to reach an agreement before your Family Court Services mediation date.  Neither the judge nor the court mediator has the time to learn much about you or your children, so parents who reach their own agreement are usually more satisfied with the results than are those who went through the court system.

  Please note that if you have a situation where there is verbal or physical abuse in your marriage and you do not feel you can stand up to your spouse, then private mediation is not a good idea and you would do better having a lawyer represent you, and/or letting the court resolve the issue.

• If your spouse is threatening to move away with the children, file for dissolution and for a hearing to get restraining orders and temporary custody orders in place.   (This applies to long-distance moves.  You do not need to do this if your spouse is moving a short drive away or within the same county).

To Protect Property and Assets

• If you think your spouse is going to take or squander your joint assets (e.g., bank accounts, stocks, bonds, personal property), you should file for dissolution immediately and may want to ask for specific restraining orders.   In California, standard restraining orders automatically go into effect when you file for dissolution.   You can set a hearing to ask for specific measures (e.g., the assets be put in a trust account that neither spouse can access unilaterally).  To protect real estate, your attorney can file a lis pendens.   Your spouse will see these actions as hostile and it may begin a court battle, so use these techniques only when your property and assets are at risk.

• If you and your spouse can’t agree who will pay the household bills or joint debt during your separation, and this is something that needs to be decided immediately (e.g., so that your home doesn’t go into foreclosure or your credit doesn’t get ruined), file for dissolution and for a hearing.  If you are able to resolve the matters before the hearing, you can file a Stipulation and Order and cancel the court date.

Restraining Orders for Abuse
        If there is any spousal abuse or child abuse, hire an attorney to file for emergency protective orders.   Cases of abuse can rarely be resolved by the couple on their own.

Final Notes

• Using the court system and lawyers to get revenge on your spouse–or turning to the court system out of fear and ignorance–is not in your best interests.  It will often lead to an unnecessary legal battle that will cost you time and money and will harm your (and your children’s) emotional health.
  I encourage you to read another article I have posted, which touches upon this same topic, called The Importance of Choosing the Right Divorce Path (located under “Alison’s Divorce Toolbox”).

• Finally, I would like to reiterate that there are certain cases where taking a friendly, peaceful approach just won’t work.  If there is abuse going on (either spousal or child abuse), you must get in touch with a family lawyer or contact your local Superior Court Family Law Division to get information about how to protect yourself, your children and your legal rights. If there is an imbalance of power in your relationship and you feel unable to stand up to your spouse, or if your spouse is a bad actor who refuses to work cooperatively, the only option is to seek legal/court intervention. Use the court system and legal services for these types of cases.

Where to go next

Now that you’ve absorbed all this information about court hearings, you might enjoy reading something less technical and more uplifting. Have a look at these Inspirational Essays, Poems and Other Resources.

- Alison