How to go about filing for a divorce
We are not advocating divorce and this is for men and women both and our purpose is to inform in case, god forbidden, it happens!
The Family Court Clinic strongly suggests you have a consultation with a family law attorney so
that you are informed of your legal rights and the important legal issues in your case.
Alternatives
The basic alternatives available to you in filing for divorce include one or more of the following:
-You can contact an attorney or Lawyer Referral:
-You can contact an attorney for legal advice or to represent you by looking in the
telephone book or calling Lawyer Referral. Many attorneys have a reasonable fee for an initial
consultation.
-You can do it yourself: If you decide to represent yourself, we suggest you obtain the
following resources (which are described more fully below):
Rule 3.1;
-Self-Help Divorce Manual; the Family Code. You can contact the Family Court Clinic
The Family Court Clinic sponsors a "Representing Yourself
Workshop" in which a team of volunteer attorneys experienced in family law present an overview of family law issues and
procedures. They answer general questions for self-represented
parties.
-You can contact a paralegal to prepare documents
You can contact a paralegal to prepare documents, but
remember that a paralegal cannot give you any legal advice about important rights you might have.
Referral Resources
The Family Court Clinic cannot help you with divorce filings or procedures except in connection
with child support matters.
People frequently ask if the Family Court can appoint an attorney for them. There are no
court-appointed attorneys in Family Court except in the following specific circumstances:
-The Court may appoint an attorney to represent a child;
-The Court may appoint a public defender if you are cited for contempt of a court order and
meet the eligibility guidelines of the Public Defenders Office.
People also ask if we can recommend a good attorney. We cannot. You can, however, find legal
assistance through the following resources:
-look in the telephone book;
-call Lawyer Referral;
-call organizations on our Community Resource List; visit the web sites of the Association of Certified Family Law Specialists or the American
Academy of Matrimonial Lawyers;
-search the World Wide Web (using, for example, "Family Law" or "divorce" as search terms).
Self-Help Resources
The following resources may be helpful to you, particularly if you elect to represent yourself
(in which case we strongly recommend that you get a self-help manual):
Rule 3.1, a guide of the local rules and legal procedures followed in our Family Court;
Self-help divorce manuals, which typically have the forms and directions for filing your
divorce. They are usually more helpful for uncontested divorces. The manuals that are most
suited to our Family Court are:
-"Here's How To Get Your Divorce in Santa Clara County," by Robin Yeamans;
-"How To Do Your Own Divorce," published by Nolo Press;
-"The California Divorce Handbook," a more general discussion of divorce and what to
expect by the Honorable James W. Stewart (one of our Family Court Judges).
The California Family Code will be useful if you need to research and inform
yourself of the law in an issue in your case. It is available on the Internet, at your local library, or at the law
library.
You can purchase self-help resources at Rose Printing Co. They sell self-help divorce books, Rule 3.1,
and the legal forms for divorce. They also sell paternity forms and instructions prepared by the
Family Court Clinic for filing paternity actions. Self-help guides are also available from Nolo Press.
The manuals are revised frequently, so make sure you have the most recent editions.
Forms
Divorce can be a complicated process, and the forms needed vary according to whether the divorce
is contested or uncontested, whether there are children or property involved, or whether there are
major unresolved issues (among other things). For this reason we recommend that you consult an
attorney or get a self-help manual that includes the necessary forms.
The legal forms are revised frequently, so make sure you have the most current forms or most recent
editions of manuals. Some of the forms are available from this site, and all of them are available
from the Judicial Council web site.
Fees
The fees you will pay will vary based on the documents you file with the Clerk's
Office. A review of the fee schedule will give you some idea of the costs you might expect.
Temporary orders for child or spousal support, emergency child custody or visitation, or restraining orders
If you need temporary orders for child or spousal support, emergency child custody or visitation, or
restraining orders, you can find instructions in the self-help divorce books suggested above and by
following the links to the information provided on this site.
Mediation
If there will be contested issues in your divorce, we suggest you consider mediation. Mediation is a
voluntary process in which a neutral person helps the parties reach an agreement on the problems
presented in their divorce case. Some of the possible advantages of mediation are that you can
control the pace of the process, your case is kept confidential, the resulting agreement is more likely
to reflect your specific needs and concerns, court involvement is minimized, and mediated
settlements are more likely to result in compliance than court-imposed orders. The cost of
mediation depends on the mediator selected, the complexity of the problems, the degree of
cooperation, and party's ability to pay.
If you and your spouse have an agreement, or believe that you can reach an agreement, check your
telephone yellow pages under "mediation" or our list of resources you can contact for assistance.
Collaborative law
Another alternative available to you is that of collaborative law. Collaborative law uses the concept
of mediation within the context of litigation. Each party is represented by an attorney, but everyone
agrees at the outset not to go to court except in the event of certain emergencies. Negotiations for a
settlement take place in four-way meetings with you and your spouse and your respective attorneys
present. This approach has the advantage over mediation in that each party has counsel
present at all stages, which tends to equalize imbalances of power. However, if your case goes to court, you
will need to find new legal counsel to represent you. If you are interested in this approach, contact Lawyer Referral and request the collaborative law
panel.
Finalizing your divorce
Your marriage does not automatically end in 6 months. You will need to complete your divorce
and get your judgment either by default (when the other party does not respond), by written
agreement, or by trial. In particular, you must understand that you cannot get your divorce simply
by filing an Order to Show Cause.
Here are the most common courses of action for various circumstances.
If the other party did not respond ("defaulted"), then:
-see an attorney to prepare a Judgment, or
-refer to the self-help manuals described above.
In the event you and your spouse have an agreement on all the issues (uncontested) in your
divorce, you can:
-have an attorney prepare your agreement and Judgment;
-follow the steps in the self-help manuals we suggested above.
If either of the following conditions pertains to your case, then it is necessarily a complicated
case and you should probably consult with an attorney:
-your spouse has filed a response, there are contested issues, and you have no written
agreement;
-your spouse filed the divorce, you responded, and your spouse refuses to finalize your
divorce whether or not there are contested issues.
We highly recommend that you have a consultation with a family law attorney before finalizing
your divorce. You may have important legal rights regarding spousal support, pensions or other
deferred compensation, or other property rights. It is your responsibility to know your rights before
you set your case for trial or you may lose those rights forever. The Family Court Clinic cannot
provide individual assistance with divorces or inform you of important legal rights.
Procedure
Here are the steps that will need to be taken to finalize your divorce. One very important
procedural protection for families is the Preliminary Disclosure. You must disclose to the other partyall assets (personal property, interest in real property, employment benefits, deferred compensation,
stock options, etc.) and all obligations that you have. If this is not done properly, the divorce may be
set aside (reversed) and the other party may get all the property that is hidden. Please talk to an
attorney or follow the steps in the self-help manuals we described above.
In preparing documents you should refer to Rule 3.1.
Step 1, the "Statement of Position"
Write a "Statement of Position" to your spouse (or spouse's attorney) in the form of a letter. In
separate paragraphs, describe what you think would be a fair amount of support, or division of
property or debts. For example:
"I propose that I keep the 1987 Toyota Tercel and you keep the 1991 Oldsmobile and car loan
to Wells Fargo Bank."
With respect to debts, keep in mind that creditors are not bound by a court order/judgment stating
that your spouse is solely responsible for a debt and may still come after you for payment. Consider
carefully what you are offering and try to be fair. Be specific enough so that your spouse will
clearly understand your proposal; it may lead to a settlement which you can write up and submit to
the court without any further hearings.
Your spouse should write back within 30 days to let you know which parts, if any, of your
proposal are acceptable.
Do not file your Statement of Position with the court.
Step 2, the "At Issue Memorandum"
As soon as you mail off the Statement of Position, you can fill out the At Issue Memorandum form and
file it with the Court.
You must have a copy mailed to your spouse (or spouse's attorney) by a third party who signs the
Proof of Service on the back of the At Issue Memorandum form.
Step 3, a Court Date
In response to your At Issue Memorandum, you will receive a notice with the date on which you
must go to court for a Case Management Conference.
Complete a Case Management Conference Questionnaire form prior to the court date and bring a copy
of it with you to give to your spouse at the Case Management Conference.
Step 4, the "Case Management Conference"
The Case Management Conference will be your first opportunity to tell your Judge which issues you
have settled and which issues are still disputed in your case. You may be referred to mediation,
arbitration, or an Early Disposition Conference (see our process diagram for an overview of the case
flow).
Step 5, Mandatory Settlement Conference
If the Judge directs you to a Mandatory Settlement Conference, you must prepare a Settlement
Conference Statement with a detailed and thoroughly documented explanation of your issue(s). Thispleading must be typed in proper legal form complying with all of the requirements of Rule 3.1,
Section 6.5.7. There is no standard or Judicial Council form available for this.
At the Settlement Conference you will be assigned a Judge Pro Tempore who will work with you to
settle your case. You may be able to reach a full agreement that day.
If yours is one of the very few cases that goes to trial, your Judge will instruct you on exactly which
issues will be heard at trial, how long you will get to present your case, and which witnesses will be
allowed.
Step 6, the Judgment
Whether you reach an agreement outside of court, at one of the court proceedings, or your case is
heard and decided by a Judge, you must prepare the following documents:
a Judgment; an Attachment to the Judgment (on plain or pleading paper that contains the orders for
custody and visitation, child support, spousal support, and attorneys fees if any);
Notice of Entry of Judgment;
one addressed, stamped envelope to and for each party.
The self-help manuals we mentioned above have instructions and samples. The Judgment and the
documents must be filed with the County Clerk.
