Divorce in California

The divorce process in California involves several key steps, and there are several important factors to consider. This article will provide an overview of the divorce process in California, including residency requirements, grounds for divorce, child custody and support, property division, and the role of family law attorneys. This article will increase your understanding of the divorce process in California and help you navigate the dissolution of a marriage.

Step 1: Petition

California is a no-fault divorce state, and it is not necessary to prove whose fault is the divorce. Other states do have this fault element in divorce. Under California law, there are two legal grounds for divorce: (A) irreconcilable differences; and (B) permanent legal incapacity to make decisions.

To start the process, one party must file a divorce petition with the court and pay the required filing fee. If you feel you cannot afford the filing fee, you may apply for a fee waiver with the court. To file a divorce petition, you “the petitioner” must meet the residency requirements of having lived in California for at least six months prior to filing and the county where the divorce is or will be filed for at least three months. These residency requirements establish the jurisdiction of the California courts over the divorce case.

The term, irreconcilable differences, is the most utilized ground, and simply refers to the breakdown of the marital relationship without any possibility of reconciliation. This makes it easier for couples to pursue a divorce without getting into lengthy and contentious litigation about its cause.

UCCJEA Add On Form: What is the UCCJEA?

The UCCJEA add on form must be included with the petition if you have minor children of the marriage. UCCJEA is Uniform Child Custody Jurisdiction and Enforcement Act, and is a form that determines a state’s jurisdiction to make child custody and visitation orders. UCCJEA jurisdictional requirements must be satisfied whenever a California court is called upon to make an initial or modified child custody or visitation determination.

The UCCJEA helps prevent conflicting orders from different states by providing a clear framework for determining which state has the most significant connection to the child. The UCCJEA requires the court to consider factors such as the child’s residence, the length of time the child has lived in each state, and the child’s connection to each state. This law prevents parents from moving to another state to gain a more favorable custody outcome.

Overall, the UCCJEA form ensures that the court has jurisdiction to make custody and visitation orders and provides clarity and consistency in determining which state’s laws apply in determining custody matters.

Summons

Along with the petition for divorce, the court must issue a summons. The summons contains standard family law restraining orders that apply to every case automatically. These family law restraining orders provide, among other things, that minor children cannot be removed from California without the prior written consent of the other parent or court order. The family law restraining order also restrains the cashing, borrowing, or transferring of community property or separate property without the prior written consent of the other spouse or court order, except that such property may be used in the usual course of business or for the necessities of life. There are other automatic restraining orders as well.

For the automatic restraining order to apply to the other spouse (the “respondent”), the respondent must be properly served. If the respondent is not served, and therefore does not have any notice of the dissolution, the automatic family law restraining orders do not take effect.

Step 2: Service of Process

The petitioner “serves” the papers on the respondent to officially notify the respondent that petitioner has filed for divorce. You must have your spouse served with the divorce petition and summons. There are special rules for serving the divorce petition and summons.

Who can serve the divorce papers?

In California, anyone who is 18 years or older and not a party in the divorce case can serve the summons and divorce petition. This is a legal requirement to ensure the proper delivery of the documents to the respondent. The petitioner may not simply hand the petition and summons to the respondent directly.

There are several options for serving the divorce papers in California. One option is to hire a professional process server who specializes in delivering legal documents. These individuals are knowledgeable about the legal requirements and have experience in serving divorce papers. Another option is to use the local sheriff’s office to serve the papers. They are trained in handling legal documents and can ensure proper delivery.

Alternatively, a friend or relative who is an adult and not involved in the case can also serve the divorce papers. However, it is important to note that serving legal documents can be a sensitive and potentially confrontational task. It is recommended to consider the emotional dynamics involved and choose someone who can handle the situation professionally.

Ultimately, the choice of who serves the divorce papers depends on individual circumstances and preferences. The priority is to ensure compliance with the legal requirements and guarantee that the papers are properly served to the respondent.

Once service is completed, a proof of service must be completed and filed with the court by the person who served the documents.

Step 3: Responding to the Divorce

After being properly served with the summons and petition, the respondent must then file and serve a response within 30 calendar days of being served. If a response is not filed, the respondent may make a “general” appearance, especially in a non-adversarial case. If neither of these occurs, petitioner may take respondent’s “default” and proceed to judgment.

Summary Dissolution

A Summary Dissolution is a type of simplified divorce process in California that allows couples to end their marriage with minimal court involvement. The summary dissolution procedure is available for couples who have:

• Been married less than 5 years;
• Lived in California for at least six months and the county where the divorce is filed for at least three months;
• No minor children together (including adopted children during the marriage) from their relationship;
• No interest in any real estate ( a lease without option to purchase real estate is okay so long as the lease terminates within one year from the date of the filing of the petition);
• Obligations (except for cars) incurred by a spouse or together during the marriage that total no more than $6,000.00 Dollars;
• Community assets (except for cars and any amounts owed on those assets) the fair market value of which is less than $47,000.00 Dollars;
• Separate assets (except for cars and any amounts owed on those assets) the fair market value of which is less than $47,000.00 Dollars;
• In addition, the parties must waive spousal support, and agree on how to split any property and debts.

The above-stated requirements must be fulfilled for the couple to qualify for a summary dissolution in California. If not, regular dissolution procedures must be used.

Step 4: Temporary Orders
Do I need temporary orders pending trial?

Parties may obtain “temporary” orders at the beginning or during the divorce process in California without waiting for the case to proceed to trial. These orders can provide for among other things, child support, spousal support, child custody, visitation, and attorney’s fees. The orders are issued temporarily by the court pending trial. There are two ways for a party to obtain a temporary order.

First, he or she may proceed by obtaining an Order to Show Cause issued from the court. In other words, an Order to Show Cause is a court order requiring the person to whom it is directed to appear for a hearing at a particular time and place to “show cause why” the relief sought should not be granted.

It is customary to serve the summons and petition together with service of the Order to Show Cause to perfect personal jurisdiction over respondent for all purposes in the marital proceeding. The Order to Show Cause procedure is used when the party against whom relief is sought has not yet appeared in the proceeding.

The second path to a temporary order requires that the party file a formal motion in a Request for Order requesting, among other things, child custody, visitation, child support, spousal support, and attorney’s fees pending trial. For child support and spousal support, the court will award support based upon the county guidelines for that county that you file, otherwise known as guideline support. For an estimate of the temporary spousal or child support you may be eligible for, visit Child Support Calculator.

This second procedure of a formal motion can only be used where the opposing party has already made a general appearance in the action by filing a response or a general appearance. In other words, the opposing party has already been served and followed through with a general appearance.

Step 5: Declaration of Disclosure and Discovery

Whether contested or uncontested, the parties must exchange financial information through Declarations of Disclosure prior to judgment in a California divorce. Learn more about required Declarations of Disclosure. The Declarations Of Disclosure are several forms that require each party to list their assets, liabilities, income, and living expenses. In addition, the parties may discover assets, financial information, and other information through the California discovery procedures, such as written “interrogatories” (questions), subpoenas, production of documents, and other discovery procedures.

Discovery

The next stage involves the “discovery” process, where both parties gather evidence and information through methods such as requesting documents and taking depositions. This process ensures all relevant information is considered and disclosed besides the Declarations of Disclosure.

If the parties are unable to reach a settlement on their own, a mandatory settlement conference will be held to attempt to resolve any remaining issues. If a settlement cannot be reached, a divorce trial will be necessary.

Contested and Uncontested Divorce Cases

If a written response is filed by the Respondent, the parties may agree with all the issues in the divorce, such as division of community property and child custody and support. As a result, the divorce case may proceed as uncontested, and the parties may submit a stipulated judgment or marital settlement agreement and judgment to the court. No hearing is required. However, if the parties do not agree on all the issues of the divorce, then the case is contested, and the court will conduct a trial.

Step 6: Divorce Trial And Judgment

Pending trial, one spouse may request temporary joint or sole custody of children, child support, and spousal support, among other orders. At trial, the court decides the proper division of community property and community debts, assignment of separate property, permanent child custody, child support, and alimony. After trial, a judgment for divorce is entered.

A divorce judgment will become final after the waiting period of 6 months and one day. The 6-months-and-a-day-rule starts to run when either the responding spouse is served with summons and divorce petition or a written response is filed and served in court.

The Law Offices of Keith F. Carr Can Help

Keith F. Carr Attorney, is an experienced divorce attorney who can help you understand your rights and obligations about the divorce process.

Meeting with our office allows you to discuss your unique situation and gain insight into the specific laws and regulations that apply to your case. We can explain the steps involved in the divorce process, including filing for divorce, serving divorce papers, and attending divorce proceedings. We can also provide guidance on important issues such as child custody, property division, and spousal support.

The Law Offices of Keith F. Carr can help to ensure that your interests are protected. With a telephone consultation, you can gain clarity and peace of mind knowing that you have expert guidance throughout the entire journey.