If you are thinking about getting a divorce in California, there is a lot to consider. From finances and property to children and the emotional stress of a separation, the entire process can get overwhelming fast. Every divorce is unique, but there are essentially three stages to a divorce and certain steps that everyone must take in the state of California to move through the divorce process successfully. Here are the basic steps to getting a divorce in California.
The Three Stages of a Divorce
Any divorce starts with the filing of a Petition for Marital Dissolution. This is the first stage of a divorce. The party who did not file the Petition then has 30 days to file a Response to the Petition.
The second stage of the divorce is the stage where most motions are filed to determine custody, support, property division, etc.. This is also the stage where both parties are required to “show their cards”, meaning both parties must disclose to the other any assets and debts that they acquired during the marriage. This second stage typically lasts the longest because this is where most problems occur.
The third and final stage to getting a divorce is the Judgment stage. This is where any agreements are written up, or a trial is held to finally resolve any outstanding issues that the parties could not already resolve. The entry of the Judgment is what determines the date that the marriage officially ends. There are many steps to between planning to file for divorce and the entry of the final Judgment, which we discuss below.
Step #1 – Preparing to File for Divorce in California
To file for divorce in the State of California, there are a few basic requirements. First, you must be a resident of California for at least six months. Next, you must be a resident of the county where you will file for divorce for at least three months.
Before you file for divorce, there are a few things you can do to make the transition smoother:
- Compile financial documents (bank statements, retirement accounts) so that you have a good understanding of where you are financially. This will not only give you a better understanding of your monthly income and expenses, but it will also give you a head start for the second, information gathering phase of the divorce.
- Gather important personal documents (Social Security card, birth certificate) to make sure you know where they are should you move out of the family residence.
- Check your credit score and make sure you know about any credit cards or debt in your name.
If you think your spouse or domestic partner might become violent or take extreme steps like kidnap the children, empty your bank accounts or otherwise conceal property, there are ways you can protect yourself. If this is the case for you, we strongly advise you to talk to an attorney.
Step #2 – Filing for Divorce in California
California uses standard forms for a divorce – a Summons (FL-110) and a Petition (FL-100). If you have minor children from this marriage, you will also need to file a declaration related to your children’s residences over the past five years, called the Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act, or UCCJEA (FL-105). Forms can be obtained from the court clerk and various online sources. There is a filing fee associated with the filing of a Petition, and the Response to the Petition.
In California, if you have children or substantial assets or debts, you will be required to file a standard Dissolution of Marriage. However, if you meet any of the qualifications below, you could qualify for a Summary Dissolution of Marriage – which is a streamlined divorce that does not require a court hearing. To qualify for the summary procedure, you must meet the following requirements:
- You and your spouse or domestic partner agree to divorce and agree on the terms for the divorce.
- You do not have children.
- You were not married for more than 5 years before separating.
- You don’t have real estate, and only have a residential lease that expires within 1 year of filing and does not include a purchase option.
- There are no debts over $6,000 (other than auto loans).
- Community property has a value of less than $41,000, and each party has no more than $41,000 in separate property, not including autos and encumbrances.
- You and your spouse or domestic partner have a written agreement dividing the property and debts and have executed required title transfers.
- You and your spouse or domestic partner waive your right to spousal support, and rights to appeal and to ask for a new trial.
- You and your spouse or domestic partner have read a brochure about the summary procedure.
If any of these requirements are not met, you must use the Traditional Dissolution of Marriage procedure.
Step #3 – Serving Divorce Papers in California
In California, your spouse or domestic partner must receive formal notice that the divorce has been filed. This is done in one of three ways:
- Your spouse or domestic partner signs forms stating he or she is aware of the proceedings. In a Summary Dissolution of Marriage, your spouse or domestic partner must also sign the Petition. In a normal dissolution matter, this is accomplished by the other spouse signing and filing with the court a Notice and Acknowledgement of Receipt.
- Your spouse or domestic partner is legally served with copies of papers filed with the court: Petition, Summons and UCCJEA (if applicable). Legal service can be made on the other spouse personally, by anyone not a party to the action (i.e., not you and preferably not your children) who is over the age of 18.
- In very unusual circumstances, service may be effective by publication, meaning a proper legal notice is published (if the spouse or domestic partner is not able to be located). How ever a spouse receives the Petition, they should also receive the documents needed to respond to the divorce. This includes a blank Response form and a copy of the UCCJEA (if applicable).
The date of service is important because it starts the timeline for the divorce process. Your spouse has 30 calendar days after service to formally respond to the divorce by filing a Response and the UCCJEA (if applicable). While you are waiting for your spouse or domestic partner to respond, you can start on your financial disclosures (Step #6 below).
Step #4 – Responding to a Divorce
If you are served divorce papers in California, it’s important to not miss the 30-day deadline to respond. Responding to the divorce doesn’t mean you are requesting a divorce, or that you agree with what your spouse or domestic partner is asking for. It does, however, allow a judge to hear your side of the story. Filing a Response is the best – and sometimes only way to protect your legal rights.
California only requires one spouse to pursue a divorce. By filing for a divorce, the Petitioner is making a clear statement of intent to divorce. Therefore, even if you do not agree, the Petitioner has the unilateral right to get a divorce. Carefully review all documents served to you. Ignorance is not a defense to violations of any orders filed against you.
Step #5 – Establishing a Temporary Order in California
Temporary orders can be requested during the divorce proceedings. There are many temporary orders that can be requested during the divorce, including:
- Child custody and visitation.
- Child support.
- Spousal support.
- Exclusive use of property
- Attorney fees.
Either party can request temporary orders at any time during the divorce proceedings. Orders can be by stipulation (agreement) or issued by a judge. Having an order in writing that is signed by a judge and enforceable under the law creates numerous benefits. Divorcing couples often find that having formal temporary orders can reduce conflict and provide clarity. Temporary orders can be made permanent in a Judgment, though some issues, like child support and child custody, may never be permanent and are always subject to further modification if there is a change in circumstances.
Step #6 – Financial Disclosures in California
In a California divorce, you must show how much you earn, what you own and what you owe. You will also need to estimate your monthly living expenses. Under state law, you and your spouse or domestic partner have a fiduciary (financial) duty to the other. This means you are required to allow your spouse to see all your financial information and assets – even if you owned the assets before the marriage.
California law states that each party must file a financial disclosure within 60 days of filing the initial paperwork. The Petitioner must file within 60 days of filing the Petition and the Respondent must file within 60 days of filing the Response. Final disclosures must be filed no later than 45 days before the trial.
You cannot get a divorce in California without completing your financial disclosures. You may be subject to sanctions (fines) and may even lose the assets if you refuse to disclose.
Step #7 – The Discovery Process in California
If you have difficulty getting relevant financial information from your spouse or domestic partner, you can use what’s known as “discovery” to gain more knowledge with an attorney’s assistance. In California, you are permitted to obtain discovery up to 60 days before the trial.
In general, discovery is a formal request for documents or information so that the requesting party can paint an accurate picture of the other spouse or domestic partner’s financial situation. It can be one of the most expensive investments in a divorce because it takes a substantial amount of time.
Discovery allows you to become better educated regarding the assets and debts of the marital estate, your spouse’s income, and the evidence your spouse intends to present at trial. The key to protecting your rights in a divorce is to make sure that you know what exists – the good, the bad, and the ugly. You cannot fully protect yourself without knowing what is out there.
In addition to cost, discovery is often considered to be an act of war. Whenever you serve discovery, be prepared for your spouse or domestic partner to retaliate with the same requests and interrogatories. This may ultimately increase the conflict and tension.
Step #8 – Divorce Settlements in California
A divorce settlement is a compromise – a full resolution of all issues related to the divorce. The final judgment, or divorce decree, contains the terms of your agreement, including:
- Child Custody
- Child Support
- Spousal Support
- Property Division
- Debt Allocation/Reimbursement Claims
- Attorney Fees
- Marital Status
A full agreement will be detailed enough so that both of you understand the terms and conditions. It will also need to be written down in a proper legal format that can be approved by your judge. Even if you can’t reach an agreement on all issues, you should still try to resolve as many issues as possible.
Settlement between you and your spouse or domestic partner allows for greater creativity in the divorce process. California laws are a blanket, one-size-fits-all approach. By settling, you and your spouse or domestic partner can try to work out a resolution that works best for you and may be better than what either of you would have received if you had gone to a trial. You can come up with unique and creative solutions to your own, unique problems. While a judge is limited by the law, you and your spouse or domestic partner are only limited by your ingenuity and willingness to work together and compromise – so long as it is a fair compromise!
Step #9 – Divorce Trial and Judgment
When a case can’t be resolved through settlement, a trial will be set in order to finalize the divorce. Trial dates are only scheduled after all other settlement options have failed. A trial can be requested by one or both of the parties, but there might be times when the judge will set a trial even if neither party asks for one.
Unless you settle your case, the only way you can finish your divorce is through a trial. Trials generally follow the same organizational pattern. The Petitioner puts on his or her case first, followed by the Respondent.
California has a waiting period of six months between the time the Petition is served on the Respondent and the date the Judgment of Dissolution of Marriage may be entered. You will receive your filed Judgment back from the court with a judge’s signature on it and the date that the marriage was terminated. It is this date that legally establishes the end date for the marriage. You will also receive a separately filed Notice of Entry of Judgment which will also have the marital termination date on it. You will typically get the Notice of Entry back before the actual entered Judgment due to the processing time for each document.