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The Vista Courthouse Experience
If you live in North San Diego County (north of Del Mar, on the coast, or north of Rancho Bernardo, inland), your case will most likely be filed in the Superior Court at the North County Court Complex in Vista, California.
On average, one trip to court is required in most dissolution cases. This might be for a Family Court Services Interview, Order to Show Cause Hearing, Status Conference, or Trial. Some cases seem to fall into a series of multiple ongoing hearings. Hopefully, good communication will help in avoiding this trap.
Regardless of the type of hearing, it is important for you to know what is expected of you when you go to court.
Settlements are achieved in most cases involving intelligent people willing to communicate with the guidance of experienced counsel. Prior to court dates, your lawyer strives to work out settlements by inviting the opposing party and attorney to discuss the issues in the privacy of his conference room.
Getting Ready for Court
The night before you go to court you should get plenty of sleep. For obvious reasons, court can be a stressful and tiring experience. Therefore, it is important that you come to court completely rested and ready to participate in the proceedings with a clear head. Often times, settlement discussions resume at the last minute.
Make sure that you have completed your court preparation the night before your court date. By doing this, you will avoid rushing around the following morning. You should assemble any documents that your lawyer has asked you to bring with you. Dress as you would to attend a wedding. It is important to show respect to the court.
If you have not visited the Vista Court Complex before, be sure you know how to get there. The North County Branch of the San Diego Superior Court is located at 325 S. Melrose Dr. in Vista, California. Take Hwy. 78 to the Melrose exit, proceed south to the county complex on the right. Turn right at the first opportunity past the Starbucks Coffee Shop and follow the cars, parking as close to the one story brown building as you are able. Be advised, parking places are in short supply at 9:00 a.m.. When you enter the building you will have to go through a metal detector. Accordingly, it's a good idea to not have any metal in your possession. A pocket knife will be confiscated. Most of the Family Law Courts are located in the first hallway to the left of the entrance. Marge will provide you with a map showing you the exact location of the courtroom where your case will be heard, if you ask.
Please allocate an extra half hour to make sure you are there before court commences.
Your lawyer is well experienced in representing clients at contested hearings. However, rather than running the risk of a well intentioned ruling that will not fit your life, your lawyer will contact opposing counsel and attempt to settle the matter by office discussions and again in settlement conference rooms at the courthouse before submitting your matter to a judge. It is your lawyer’s belief that a negotiated settlement addressing the needs of his client is better than the risk of a court ruling by a judge who does not know the parties, after hearing the problems discussed for the first time in a short argumentative setting. It's no wonder that the ruling made under those circumstances is often hated by both sides.
Meeting at the Court
Before your day in court, be sure to ask your lawyer where he wishes to meet you. This will usually be in the hallway outside the courtroom, where your case is set to be heard. When you get to the courthouse, go directly to the courtroom where your matter is scheduled, unless your lawyer has asked you to go somewhere else. Most of the Family Law courtrooms are on a single hallway to the left of the entrance to the single story building.
Outside the courtroom the bailiff or clerk will post the calendar, which lists the cases scheduled for that day. Make sure your case is listed on the calendar. If it is not, you might be in the wrong courtroom.
If you do not see your name on the calendar and cannot find your lawyer, enter the courtroom and talk to the bailiff. If you still do not know where you are to be, go to the information booth and ask for assistance. Bear in mind that if he is in a courtroom, his cell phone will be turned off.
As a last resort, the clerks in the business office of the courthouse will be able to assist you.
You may use your cell phone in the hallway. However, make sure it is turned off in the courtroom and never take a call in the courtroom.
Besides the judge, there are usually three other court personnel in most courtrooms.
The bailiff is a uniformed officer who is assigned to assist in the operation of the courtroom. He or she (many bailiffs are women) is usually the first person you talk to when you enter the courtroom. Usually the bailiff wants you to check in with her or him to verify your presence.
The bailiff’s primary job is to maintain order. This involves anything from asking people to stop talking while court is in session to physically subduing people who become violent. Never chew gum or read a newspaper in the courtroom.
The initial collection of forms, exhibits, and miscellaneous papers is often assigned to the bailiff. During a hearing your attorney will often need to give a document to the judge. This is usually done by merely handing it to the bailiff, who then gives the document to the court clerk or directly to the judge.
The Court Clerk
The court clerk is the man or woman who is responsible for the management of the courtroom. In the morning, before court starts, the clerk gets all of the files for the day from the clerk's office and gives them to the judge. When the court opens, the attorneys and clients who are there without attorneys are usually required to "check in" with the clerk. This means that they are to advise the clerk that they are present. Most clerks delegate this duty to the bailiff.
When court is in session, the clerk administers the oath to all witnesses, and generally serves as the judge's clerical assistant. The clerk will prepare the minutes, which is a brief and usually incomplete summary of the hearing. This document will temporarily serve as the record of the court hearing, until the Order After Hearing is prepared by the attorneys and accepted by the court.
The Court Reporter
The court reporter records everything that is said while court is in session, using a silent shorthand/typing machine. After your hearing is completed, your lawyer or the other attorney may request the court reporter to prepare a transcript of the proceedings. This is a verbatim script of everything that was said by the judge, attorneys, and witnesses in your case. This document is often used to prepare the formal order after hearing.
Family Law Commissioners
Half of the law courts in North County are presided over by a "court commissioner" instead of a judge. There are only two differences between a commissioner and a judge:
If you or the other party do not want a particular judge or commissioner to hear your case, please advise your lawyer. Any judge or commissioner is subject to challenge, although it is rarely done.
For the balance of this discussion, the term "judge" will refer to a judge or commissioner.
After taking the bench, the first thing the judge does is call the calendar. The purpose of this is to enable the judge to determine how many cases are actually going to be heard and how long each one will take. With this information, the judge can plan the sequence of hearings.
When the calendar is called the judge simply calls each case and asks the attorneys or people who are representing themselves how long they estimate it will take to have the case heard. If different hearing times are given, the judge will usually assign the longest estimate so that each party will have as much time as possible. However, if the time estimated is over 20 minutes, the judge will usually continue the case if it is on a short cause calendar.
When the calendar call is completed, the judge compiles a list of cases that are ready to be heard. It's common for some cases to "trail" to provide one last opportunity to settle the issues before the court rules. Cases in which the attorneys have agreements go first.
Review of Pleadings
Court rules require the attorneys to file their papers ("pleadings") before the hearing date. This gives the judge and the attorneys an opportunity to know what each side is going to ask the judge to do. Before the judge comes out in the morning, he or she will usually have read the court papers that have been filed and will be familiar with the "issues" that are to be decided.
In all cases, each party is required to provide the judge with the party’s current Income and Expense Declaration, which must be current within the last 60 days. For this reason, please keep your lawyer informed as to any change in your finances. You never want the judge to continue or take your case "off calendar" because your financial statement was not current.
Stating of Appearances
On the first call of your case by the judge, your lawyer will signal you with a hand motion, and you should step forward and take a place at the counsel table next to your lawyer. Usually the attorneys sit on the inside chairs, next to the speaking podium in the center, and the clients sit in the chairs at opposite ends of the table. The attorneys will first state their "appearances for the record." For example, your lawyer will say, "Good morning, your honor. I am Rickard Borg, counsel for the Petitioner Clark Kent who is present in court."
Administering the Oath
If witnesses are to be called for live testimony, the clerk will administer the following oath to both parties by instructing them to raise their right hands. The clerk will then ask:
"Do you solemnly swear to tell the truth, the whole truth and nothing but the truth, so help me God?"
In a clear and audible voice, both parties are required to say "I do" or "yes."
If your religious convictions prevent you from swearing to God, the clerk will administer another oath that does not contain a reference to God. Please advise your lawyer if you wish the alternative oath administered to you.
In either case, you should understand that your testimony is being given under penalty of perjury. This means that you can be charged with and convicted of a crime if you knowingly tell a lie when you testify.
Stipulations and Unresolved Issues
The judge will then want to determine which issues have been settled by written agreement ("stipulations") and which ones remain unresolved. One of the attorneys will then recite any agreement and list the issues which remain "contested." In Vista, the judges insist that all agreements be put in writing, signed by the parties and their attorneys.
After the judge reviews the written agreement or listens to the statement of the settled issues, he or she will ask the parties if they understand the agreement. Once they inform the judge that they understand the agreement and are willing to abide by its terms, the judge will then make a statement confirming the agreement has now become a court order.
Testimony at O.S.C. Hearings
Once the preliminaries are completed the actual hearing begins. If the hearing is an Order to Show Cause (O.S.C.) for temporary orders such as support or control of property or for modification of an existing order, the attorney for the party who filed the motion argues the matter based upon the declarations which have already been filed with the court. Normally it is not necessary for either party to testify at the O.S.C. hearing in San Diego County, especially if the case is scheduled as a short cause matter of less than 20 minutes. This rule varies from county to county. Orange County, for example, requires testimony. The cause matters exceed 20 minutes and will be set on a special calendar, usually at a later date.
In a dissolution trial, the person who filed the case takes the witness stand first.
Once the testimony stage of the trial is completed (or introductions in short cause matters), it is time for the attorneys to make their "arguments" to the judge. In argument, each attorney summarizes the important points of the case and tells the judge why his or her client should prevail on the various issues involved in the case. In their arguments the attorneys will often refer to statutes or appellate court decisions relevant to the case.
Sometimes, following a trial, a judge will request that the attorneys submit their arguments in writing.
After the arguments are completed, the judge can either announce the decision orally in open court or take the matter "under submission." This means that the judge is going to think the case over and issue a written decision in the near future.
Completion of the Hearing or Trial
Due to the staggering number of dissolution cases that are being filed, family law courts are becoming overburdened with cases. It's been said that one out of ten couples purchasing new homes in San Diego will experience a divorce within the first two years of ownership. This means that even if your case is on calendar for a particular day, there is no guarantee that your case will be completed, or even started, on that day.
In fact, in many family law courts, sometimes as many as one-half of the matters on calendar for a particular day are continued to another day for completion. For this reason many hearings are limited to 20 minutes in total duration. In some courts, it can take many separate court days, spread out over weeks, to complete a lengthy trial. This can cause problems for the attorneys in the presentation of their cases, not to mention the inconvenience to the parties and witnesses. Unfortunately, it is a fact of life in the judicial system. Beware, if you are traveling a long way to attend a court hearing. On one occasion a party endured a 12 hour flight from a foreign country to attend court only to find a notice posted on the courtroom door stating that all cases set for that particular day were continued to a new date, due to the unavailability of the judge. The party had to make another trip. This is another reason settlement makes sense. There are many hidden risks such as this associated with taking your matter to court.
The North County Courts are now pressing the parties and attorneys to move cases along, and for that reason they have begun setting “status hearings” for the attorneys and litigants to appear and report to the court where the case is in respect to settlement or preparation for trial.
Leaving the Courthouse
Unfortunately, lawyers and clients rarely make advance plans for how they will leave the courthouse after the hearing is concluded. Often times a hearing will produce acrimony. At times, lawyers or judges are insensitive to a party’s plight in life. At other times, your soon-to-be-former spouse will do something spiteful.
In a recent contested hearing, a middle aged couple of high social standing were observed exchanging obscenities. If your spouse engages in such comments, DON'T join in.
It is important for you to maintain dignity as you leave the hearing, no matter what is said. Therefore, Mr. Borg recommends: dress well, hold your head high, ignore all foul or negative comments, and have a friend drive you away in a very expensive car.
Separate property is property acquired before marriage, property received after the date of separation, inheritances, and gifts. Separate property is not divided in the divorce. Debts incurred before getting married or incurred after separating are separate property debts. Spouses are required to file proof of community and separate property on a Preliminary Declaration of Disclosure.
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