Legal Separation vs. Dissolution of Marriage
Order to Show Cause
California as a No Fault Divorce State

The information that follows is intended for California residents only. Information contained on this web site is not intended as legal advice and is void where prohibited by law.

Divorce begins when either a husband or a wife visits an attorney and asks that the process to dissolve the marriage begin.

Legal Separation vs. Dissolution of Marriage:

Both procedures involve the exact same issues: division of the parties' community property; custody and visitation; child and spousal support. The major difference between legal separation and a divorce is that at the end of the divorce process the parties are divorced; at the end of the legal separation procedure the parties are still married! If a judge grants a legal separation, neither party can remarry without dissolving the marriage. Reasons for a legal separation rather than a divorce might be as follows: religious reasons; or keeping the other party's health insurance in force; a method of communication to the other party that "unless you clean up your act and work on the marriage, I'm out of here."

The dissolution process or legal separation is begun by the filing of a petition. The one who files first is called the "petitioner". The one who responds to the petition is called the "respondent". There is a slight advantage in filing first--but very slight indeed.

Order to Show Cause:

At the commencement of the dissolution for marriage, either the petitioner or respondent may ask his or her attorney to file an Order to Show Cause (sometimes referred to as an OSC). The OSC sets a court hearing in approximately 30 days. In an emergency this time period can be shortened. The party filing the Order to Show Cause may ask that the court make certain orders which will be in effect only temporarily. These orders may last until the judgment for dissolution of marriage or until either party asks for a modification because of a change of circumstance. An Order to Show Cause may concern such issues as establishing temporary child custody, temporary child support, temporary spousal support (alimony), exclusion of one spouse from the family residence, restraining orders concerning violence, attorney fees and other relevant and immediate orders. The Petition for Dissolution of Marriage and the Order to show Cause, if any, are then personally served on the Respondent. One of the rules is that neither the Petitioner nor the Respondent may personally serve the papers upon the other party. Normally we use a process server or some other third party to make the service. If either the Petitioner or the Respondent make the service the service may not be valid.

The Respondent upon whom the papers are served is allowed thirty (30) days to file a response to the Petition for Dissolution of Marriage. Time may be extended by agreement between the parties and their attorneys if it appears that a settlement may occur, or if there are other reasons to do so.

If an Order to Show Cause has been served on either party, both parties and their attorneys appear in court on the date scheduled (unless there is a continuance). At that time, the parties and attorneys may attempt to settle certain issues and, if they cannot do so, the judge will make rulings upon the issues raised.

In order to properly represent a client, we often find it necessary to conduct what is referred to as discovery. Discovery includes sending out interrogatories, requesting the production of documents or taking the depositions of the opposing party and sometimes taking the depositions of other key witnesses. Interrogatories are written questions which the opposing party must answer in writing under penalty of perjury. These questions may concern the existence, location and valuation of assets belonging to the parties. The interrogatories may also concern income and expenses, particularly if all the information is not available to both parties. Depositions are usually conducted in an attorney's office with the parties, the attorneys and a court reporter present. The court reporter transcribes the proceedings and the witness answers questions under penalty of perjury. The advantage of taking a deposition over sending out interrogatories is that a follow up question can be raised if the witness tries to avoid answering the question or gives a less than truthful answer. At the deposition, the attorney usually gets to meet his client's spouse for the first time. Questions in depositions may concern the parties' assets, child custody and child visitation, property, income, or expense.

Child Custody

Santa Cruz County Family Court Services has developed a process for the purpose of resolving child custody and visitation. Both parties are required to meet with a mediator. The mediator cannot force the parties to agree to visitation or custody arrangements but can encourage compromise on each part so that the best interest of the children are served. Attorneys do not attend mediation. Mediators make recommendations to the judge. Please click here for a more complete breakdown of the Child Custody Resolution Process.

After all of the community property is identified and valued and after all the parties' expenses and income have been ascertained, efforts are normally made to arrive at a settlement. To reach a settlement both attorneys and both parties must understand that there must be compromise on both sides or a settlement will not occur. Neither party will receive everything that he or she had hoped.

California as a No Fault Divorce State:

This means that neither party can stop the divorce from occurring. The only two grounds for divorce in California are incurable insanity (no funny comments please) and irreconcilable differences. Abandonment or having an affair are not grounds in California.

Once we have identified and valued the community property and ascertained the parties' income, we are often able to make an educated estimation as to how the court would rule on the issues. The opposing attorney is able to reach a similar conclusion, and if both parties will rely on their attorneys' advice, then the matter can probably be settled. If either the attorneys or the parties are unreasonable in his or her expectations then the case will probably not settle and it will be necessary to try the case. In the event that the case is tried, a trial date will be set by the court and the parties will have the opportunity to testify, bring in witnesses to testify and present other evidence in order for the court to make a ruling to determine the issues. As mentioned above, this is probably the least desirable approach because a judge, no matter how well intentioned and how capable, cannot make decisions that will please both parties. Once the case has settled or the judge has ruled on the issues, a judgment is prepared and filed with the court. The judge signs the judgment which makes orders concerning child custody, visitation, division of property, as well as other issues presented. Generally speaking, the issues concerning the division of property are final. Issues concerning child support, custody and visitation as well as spousal support may be modified in the future if things change--loss of income, health conditions, one party wishes to move.