REQUIREMENTS NECESSARY TO FILE FOR DIVORCE
- California is a no-fault state, which means that as long as one spouse cites “irreconcilable differences,” there is grounds for divorce.
- Under California law, at least one spouse must have resided in the state for at least six months prior to filing for divorce.
- In order to file a divorce petition in a county court, the petitioner must have resided in that county for at least three months prior to filing.
- The minimum amount of time necessary to complete a divorce in California is six months.
- If you have any additional questions regarding the divorce procedure in California, you can receive free legal guidance at avvo.com.
- California offers mediation for couples who are considering divorce. A mediator is a non-legal authority with experience in helping couples resolve issues and avoid divorce.
- If you are a victim of spousal abuse, discuss your situation with a violence counselor prior to filing, so that you can take appropriate measures to protect yourself and your children.
GROUNDS FOR DIVORCE IN CALIFORNIA
- Irreconcilable differences—either spouse may cite irreconcilable differences, which makes the marriage untenable. You will need to provide evidence to the court that the marriage is no longer sustainable.
- Incurable insanity—if you file a divorce on the grounds of incurable insanity, you must demonstrate to the court that your spouse was mentally incompetent at the time of marriage through medical or psychiatric testimony. (California Code – Sections: 2310)
STEP 1: HOW TO INITIATE A DIVORCE PROCEEDING
A divorce proceeding in California begins with the submission of a completed Petition for Dissolution of Marriage.
- You must also provide the following documents
- Declaration regarding minors
- Counseling Statement
- Certificate of Assignment
- Make at least two copies of all submitted documents.
- You must file the Petition with the Clerk’s Office of the Superior Court in the county of residence. You must also supply the filing fees which are typically several hundred dollars at the time of filing.
STEP 2: LEGAL NOTICE
The petitioner must provide legal notice to their spouse who is designated legally as the Respondent. Under California law, the Respondent in a divorce must be served with the divorce petition.
- Mail—divorce papers can be served through the mail if the Respondent signs and submits to the court a Notice and Acknowledgment of Receipt.
- In person—any person other than the petitioner may serve the divorce papers in person as long as they are over 18 years of age and not listed in any of the court documents. This means friend, family member, professional process server or county sheriff may provide them to your spouse.
- Once the divorce papers have been served, a Proof of Service must be filed with the County Clerk.
Once your spouse has been served, they will have 30 days to respond to the Petition. These responses are classified as
If your spouse does not provide any response to the divorce petition, then the judge will assume that the Respondent has given up any right to participate in the case. The judge will probably grant all of the requests regarding child custody, support and property distribution in the petition.
Default with Agreement
In cases where you and your spouse have a written, notarized agreement regarding all major issues in the marriage dissolution, and your spouse does not file a response, the judge will abide by the written compact.
If your spouse files a response with the court, but agrees with all of the details in the petition, this is considered an uncontested dissolution.
If your spouse files a response which disputes various aspects of the Petition, then the court will likely have to step in and make decisions regarding contested issues.
STEP 3: CONTESTED OR UNCONTESTED DISSOLUTION OF MARRIAGE?
Contested Divorce (High Cost)
If you and your spouse cannot come to on an agreement about the major issues in a divorce—property distribution, child custody or spousal support—you will likely need to hire an attorney to represent you in this complex divorce proceeding.
- In most contested cases, you will need to petition for a trial date where you and your spouse will present arguments to the judge.
- Most contested divorces require attorneys for both parties so that all legal obligations can be fulfilled
- Most divorce attorneys charge considerable legal fees in a contested divorce procedure
- Attorneys are likely to conduct a lengthy period of discovery where they will investigate the other party’s claims. This is likely to include document requests, subpoenas and witness interviews.
- Most contested divorces cost several thousands of dollars in court and attorney fees.
Uncontested Divorce (Low Cost)
In California, there are a number of low cost alternatives to a contested divorce.
- Summary dissolution—if you and your spouse have been married for less than 5 years and meet the following requirements, you can file for a summary dissolution which does not require a court appearance.
- No children in issue from the marriage
- No ownership of real estate
- No more than $6,000 in debt
- Have less than $40,000 worth of property
- Neither you nor your spouse will receive alimony
- Have a signed agreement that detailing property division
- If you do not qualify for a summary dissolution but still have a written, signed agreement with your spouse stipulating the details of the divorce, you may be able to avoid a trial. You will need to file Financial Disclosure Forms with the court within 60 days of process service. You will also need to file a Declaration of Disclosure, which details how you and your spouse would like assets and debts divided, custody of children and spousal support.
- The judge typically abides by the written agreement.
- In many cases, an uncontested divorce can be considerably more inexpensive because there is no need to hire an attorney.
STEP 4: WHICH OPTION IS RIGHT FOR YOU?
Self-Representation (Lowest Cost)
If you and your spouse can agree to an amicable settlement before or during the divorce procedure, you can avoid many of the costly aspects of a divorce. It may take some negotiation, patience and sacrifice, but, ultimately, it is in the best interests of you, your spouse and any children if you can avoid a long and contentious legal battle. A written, signed agreement with your spouse will help you sidestep any expensive legal proceedings, and you may be able to conclude the divorce without an attorney. The tutorial at MyDivorcePapers.com will provide the instructions and the appropriate forms necessary to complete this process with a minimum of cost and aggravation.
Mediation (Medium Cost)
The state of California encourages couples who are considering a divorce to attempt to reconcile or produce a divorce agreement with the help of a mediator. Mediators are independent, neutral professionals with experience resolving personal issues. Although they do not have the legal authority to force a couple to come to an agreement, they are usually quite skillful at providing useful information and solutions. A court may appoint or recommend a mediator prior to or during a divorce proceeding. Mediation is typically a less expensive alternative to a divorce trial.
Divorce Trial (Highest Cost)
In cases where spouses cannot agree on major issues, the judge will set a trial date. This trial may last a single morning or several days.
- It is recommended that you hire an experienced divorce attorney to protect your interests. Your spouse will probably do likewise.
- In the discovery phase, both legal teams are likely to conduct thorough investigations into the allegations made by each party. This may take weeks or even months to complete.
- At the trial, each party will attempt to support their arguments with evidence and testimony.
- Even with outstanding legal representation, there is no assurance of a favorable outcome.
STEP 5: RESOLVING THE MAJOR ISSUES
In almost every contested divorce (or uncontested ones) the major points of contention revolve around issues of property division, child custody or spousal support. If you and your spouse cannot come to an agreement about these issues, you should know how California law governs them.
Under California law, all community property—which is property pooled by both spouses during the marriage—must be divided equally. Separate property which belongs wholly to one spouse may have been acquired in the following ways:
- Owned prior to marriage
- Acquired through a gift or inheritance
- Obtained following a separation but prior to divorce
- Designated as separate through a prenuptial agreement
Once all of the community property and debts are identified, they must be assigned a monetary value. This may be performed by an appraiser.
Division of property may take several forms. Some assets can be divided equally, like cash or multiple goods. Indivisible assets may be assigned to one spouse by the judge while another asset of commensurate value is assigned to the other spouse. In some cases, a judge may award a share of the property to one party while providing the asset to the other; this essentially makes both spouses co-owners.
Debts are also assigned in a similar manner to each spouse. While the judge may assign a debt to one spouse, this may not relieve the other spouse of repayment obligations in the eyes of the creditor. That is why it is often recommended, that any marital debts be repaid during a divorce.
As in most states, California determines child custody based on the best interests of the child. The judge must abide by certain laws including
- Custody of a child cannot be awarded to the rapist who impregnated the mother.
- Custody of the child cannot be awarded to a parent who murdered their spouse
- Custody of the child cannot be awarded to a parent who has been convicted of physical or sexual child abuse, unless there is evidence that the parent poses no risk to the child
- Other factors like alcohol or drug use may play a role in custody decisions
- Children with a measure of maturity may express their preference and influence these decisions
- California courts encourage meaningful, positive interactions from both parents and frown upon undue interference from one parent
California courts prefer to award joint custody where both parents share time residing with the child. Both parents will influence major decisions regarding health, welfare and education in joint custody.
Spousal support or alimony in California is dependent upon a number of factors.
- Earning capacity of both spouses
- Standard of living during the marriage
- Professional skills of both spouses
- Sacrifices made by spouses during the marriage
- Financial support provided by one spouse for the education, training or licensure of the other
- Financial assets and income
- Length of the marriage
- Debts incurred during the marriage
- Age and health of each spouse
- Any incidents of domestic violence
- Criminal convictions
Alimony may be in the form of temporary, permanent or both. Temporary alimony is payments made during the divorce procedure, while permanent continues following the divorce. The length of permanent alimony is usually dependent upon the length of the marriage. In most cases, payments are required for only about half the time the couple was married.
STEP 6: FINALIZING THE DIVORCE
If a trial is necessary, then you and your spouse must attend the trial. Following these courtroom proceedings, the judge will issue a Final Judgment.
If the divorce is uncontested, you must attend a hearing with the County Clerk. You must bring these documents to the hearing. You must submit the following
- Declaration of Uncontested Dissolution Form
- Judgment Form
- Notice of Entry of Judgment Form
- Marital Settlement Agreement
Exactly six months and one day following the date when you filed the original Petition for Dissolution of Marriage, you will be issued the Final Judgment Divorce Certificate.