Divorce

I want a divorce.  How do I file for divorce?  You can file for divorce in California which will be more properly known as a dissolution of marriage.  A dissolution of marriage terminates the legal relationship you have with your spouse – it terminates the marital union.  Termination includes the ending of all legal duties and responsibilities that are created by marriage.   You need to consider the effects of filing for divorce and for filing as either a petitioner or as respondent.  If you are the petitioner, you will initiate the divorce proceeding.  If you are the respondent, you will wait to respond to your spouse’s filing for divorce.  There are advantages and disadvantages to both which you should understand before filing for divorce.

No Fault Divorce

Residency Requirements

Can I file for divorce?  Can I file for divorce in California?  To file for divorce, you must prove that either you or your spouse are a resident of the state and the county where your divorce is filed.  By doing so, you establish jurisdiction and venue for a court to address your divorce proceeding.  Residency requirements require that:  (1) either you or your spouse has resided in California for at least six months prior to the date of filing, and (2) that one spouse has resided in the county where the divorce was filed for at least three months prior to the date of filing.  If you do not meet the residency requirements you can file for a legal separation.  Later, you can “convert” your legal separation to a divorce proceeding.

Simplified Divorce

What is a simple divorce?  Can I get a simple divorce?  California divorce has a process which allows married couples to file for a simplified divorce.  A simplified California divorce is much simpler and a less complicated method to obtain a divorce.  You may be eligible for this process if:

• You and your spouse have agreed in writing to a division of your assets and debts.
• You have been married for five years or less.
• You have no children from the relationship.
• Neither of you own a home or other real estate.
• The value of all community property amounts to less than $25,000, excluding automobiles.
• The value of either party’s separate property amounts to less than $25,000, excluding automobiles.
• Your combined debts do not exceed $4,000, except for an auto loan.
• Neither spouse is requesting spousal support.

Legal Separation

What is a legal separation?  What’s the difference between a legal separation and a divorce?  You remain “married” but are no longer part of a “community.”  This is often done for religious, insurance, or tax purposes.  A court will divide your property and issue orders relating to child custody, visitation, child support and spousal support, and, if necessary, a restraining order.  There is no residency requirement to file for legal separation.  You can get a legal separation without having lived in California for six months or your county for three months before filing.

Annulment

I want an annulment.  What is an annulment?  Can I get an annulment?  A California annulment, also known as a judgment of nullity,  is found when a marriage is either void or voidable.  You either never were in a valid marriage or your marriage can be invalid based on information newly discovered.  A California annulment may be granted only when a marriage is adjudged void or voidable under conditions provided by statute.   See Family Code §§2200–2201 (void marriages) and Family Code §2210 (voidable marriages).  When you get an annulment, you are not getting a divorce.

What is bigamy?  Am I am bigamist?  In brief, a marriage is void in cases of incest and bigamy, and is voidable in cases of minority, a current spouse mistakenly believed to be deceased, unsound mind, fraud, force, and physical incapacity.  A California annulment may not be granted on any other ground.  See Price v Price (1938) 24 CA2d 462, 466.  Further, the statutory grounds must have existed at the time of the marriage.  See Family Code §§2200–2201, 2210;  McDonald v McDonald (1936) 6 C2d 457, 460.

Starting Your Divorce

How do I start my divorce?  What do I do to start my divorce?  Before starting your California divorce, be aware that there is a six month waiting period for a divorce to be finalized.  This waiting period allows for the possibility that couples may reconcile before divorcing.  If one spouse passes away after filing for divorce, but before the final judgment is entered by the court, the case is dismissed.  While one spouse becomes a decedent, the other spouse becomes a widow or widower.  Put simply, you cannot obtain a divorce from someone who is deceased.  In California, you will be considered legally married when the estate is distributed.  The result being that, as a spouse, you may inherit all community property that could have been divided during divorce.

Divorce Process

How do I get a divorce?  What is the process to get a divorce?  In California, the divorce process begins when one spouse decides they want to get a divorce and files a Petition with a Superior Court in the State of California.  In Sacramento you will file your Petition at the William R. Ridgeway Family Relations Courthouse.  The spouse who files a Petition to begin the divorce process is the “Petitioner.”  Once filed, the Petitioner must “serve” the other spouse with copies of the divorce paperwork.  The spouse served with the petition is called the Respondent.  The Respondent has 30 days to file a Response to the Petition.  The Response is notice to the Court that the Respondent wishes to participate in the divorce proceedings.

Divorce Petition

What is a divorce petitioner?  What do I do if I am served with a divorce petition?  To file for divorce of a marriage in California you must file a California divorce petition.  To qualify for the filing of a divorce, either you or your spouse must have lived in California for 6 months prior to the date of filing and in the county where you are filing your case for at least 3 months prior to the date of filing. If you do not meet these requirements, you can file for legal separation, then file an amended California divorce petition in the county in which you live once their residency requirements are met.

What does a divorce petition do?  What does it mean?  The filing of a California divorce petition begins your divorce proceeding after which you must address any other issues which may be affected by your divorce, such as:  child custody, child support, spousal support, division of community property, and attorney fees.

Click on the following link to download a free copy of a California Divorce Petition that is used in all California courts.

File Download (PDF File): fl100 – marriage petition

Divorce Petition and Summons

What is a petition?  What is a summons?  A proceeding for dissolution of marriage or for legal separation of the parties is commenced when you file a petition.  In the petition, you will state certain facts:  the date of marriage, the date of separation, the  number of years from marriage to separation, the number of children of the marriage, and the age and birth date of each minor child of the marriage.

Before filing,  you must review the information in the Petition and Summons carefully, as this will begin the divorce process and let the Court (and the other party) know your intentions.  The information entered on the initial paperwork will let the Court know the basic facts regarding your marriage.  You will enter information such as the length of the marriage, children of the marriage, and whether or not you will be requesting child support or spousal support.

A copy of the petition, together with a copy of a summons, needs to be served upon the other party to the marriage.  It is important to note that you can not personally serve your own divorce papers.  Service must be completed by someone other than yourself.

Response

What is a response?  If no response is filed and you are not making a demand for money, property, costs, or attorney’s fees in the petition, the judgment of dissolution of marriage can be entered by default.  In that case, you do not need to file an income and expense declaration or property declarations for the Court to distribute community property.

Respondent Does Respond

What do I do if I get a response?  If the Respondent files a Response to the Petition, both spouses will then be required to exchange financial information about their respective incomes and property;  property includes any interest in any real property, investment, or any other financial transaction.

Respondent Does Not Respond

What happens if I do not respond?  Should the Respondent fail to file a Response, the divorce process will continue without the Respondent’s participation.  The Petitioner can then prepare a default judgment.  In the judgment package, the Petitioner can request court orders for child custody, child visitation, child support, spousal support, attorney fees, and the division of all marital property.  The divorce process ends and becomes final 6 months and one day after the Respondent is served.

Divorce Forms

What forms do I need for divorce?  There are a number of divorce forms that you may need when filing for a dissolution of marriage in California.  The divorce forms you will need depends on the length of marriage, whether or not if you have children, and the amount of community property you have accumulated.

Initial Divorce Forms

What divorce forms do I need to start my divorce?  The initial divorce form used is by the “Petitioner” who files a Petition in the Superior Court for dissolution of the marriage.  In this divorce form, the Petitioner asks the court to dissolve the marriage and to deal with any issues between the parties arising out of the marital relationship such as child custody, child support, spousal support, property division, debt division, payment of attorney fees and court costs, etc.  How your case is subsequently handled depends on what your spouse does.  Your spouse, who is now known as the “Respondent,” can either not file a Response to the Petition,  cooperate to settle the case by way of agreement or,  can file a Response and contests the issues in the case.

Click on the following link to read further instructions for filing divorce forms in California:

File Download (PDF File): How to Use

Request for Order

What is a request for order?  If one or both of the parties need the Court to make orders before trial, either can file a Request for Order.  This is often done to establish temporary child custody, child visitation, child support, spousal support, attorney fees, or to obtain a temporary restraining order.  Both parties will be required to appear in court to explain their position.

Mandatory Settlement Conference

What is a mandatory settlement conference?  What happens at a mandatory settlement conference?  This is the pre-trial meeting at which both parties are ordered to appear with their attorneys.  At this meeting the parties will attempt to settle as many issues as possible before the trial.  A Marital Settlement Agreement is drafted if the parties be able to settle the entire case.  If not, all unresolved issues will be set for trial.

Trial

What is a trial?  What happens at trial?  At trial, each party’s attorney presents their arguments and offers evidence to support those arguments.  At the conclusion, the judge will makes orders on all unresolved issues.  The judgment is prepared and approved by the divorce attorneys and then submitted to the court for the judge to sign.

Final Judgment

How do I complete my divorce?  How do I  end my divorce?  How do I finalize my divorce?  Your California divorce will be final when the court issues a judgment which will be at least six months after your spouse was served with the petition for dissolution.  The court does not automatically end your marriage when the six months have passed.  You cannot legally remarry until you obtain a judgment even if the six months have passed.

Modifications

How do I modify my divorce?  How do I modify child support?  How do I modify child custody?  How do I modify spousal support?  Even after the court signs the judgment, some orders can be modified.  Modifications are usually requested for child support, custody, visitation, and spousal support.

Automatic Temporary Restraining Orders

What are restraining orders?  How do restraining orders affect my divorce?  There are temporary restraining orders that go into effect automatically when the divorce process begins, which includes;

• Neither spouse is allowed to take your minor children out of state without the other spouse’s written permission or a court order.
• Neither spouse is allowed to cancel or change the beneficiaries on your insurance policies or transfer property.
• Either spouse is required to notify the other before any out-of-the-ordinary spending—and be prepared to account for such expenditures to a judge.

Marriage Contracts

What is a marriage contract?  How do I get an marriage contract?  What is a prenuptial agreement?  What is a postnuptial agreement?  Should I sign a prenuptial agreement?  Should I sign a postnuptial agreement?  Couples often consider prenuptial and postnuptial agreements.  The difference being that one is entered into before marriage while the other is entered into after marriage.  Both agreements are contracts that characterize the parties’ assets, distribution of those assets, and/or other specific interests.  Both documents require specific language and “disclaimers” for them to be enforceable.  What is often at stake is community property or potential community interests which must be disclosed.  You must also characterize any property which may be at issue.

Child Custody

I want custody of my child.  How do I get custody of my children?  Many divorces involve establishing the parents’ custody rights.  Custody is the legal relationship that parents have with their child.  Custody can be agreed to by the parents or established by a court during a divorce.  Custody agreements and orders will address:  (1) Legal custody – the right of the child to make decisions regarding the child’s care and development; and, (2) Physical custody – the time a parent spends with their child.  Parents can reach an agreement regarding custody without court intervention.  This agreement can then be entered as a court order.  Otherwise, parents will attend mediation and receive recommendations about custody and parenting time.

Divorce and Child Custody

I want custody of my child.  How do I get custody of my children?  How does divorce affect custody?  In a California divorce, if you and the other parent are unable to agree on custody or visitation, you will be required to appear in court for a judge to decide on a parenting plan.  Before any hearing or trial involving child custody or visitation, both parents are required to meet with a trained counselor who will try to help you reach an agreement on custody and a parenting plan.  In some counties, counselors are able to submit a recommendation to the judge even if you and your spouse did not reach an agreement.  In other counties, meetings with the counselors are entirely confidential and the counselor can only report agreements reached by the parents.

Depending on the nature of the custody dispute, the judge may order a psychological evaluation of one or both parents, and may appoint an attorney to represent the children.

Child Custody and Visitation

I want custody of my child.  How do I get custody of my children?  What is visitation?  How do I get visitation?  What is parenting time?  How do I get parenting time?  The judge may give custody to one or both parents, or, in some cases, to another adult based on the best interests of the child.  Considerations include the child’s health, safety and welfare, as well as any history of abuse by one parent.  For custody to be awarded to someone other than a parent, however, the judge would have to believe that giving custody to either parent would be detrimental or harmful to the children.

Types of Child Custody

I want custody of my child.  How do I get custody of my children?  What are the different types of custody?  Who gets custody?  Who get visitation?

• Joint legal custody means that both parents share the right and responsibility to make important decisions about their children’s health, education and welfare.
• Sole legal custody means that one parent has the right to make decisions related to the health, education and welfare of the children.
• Joint physical custody means that the children spend time living with each parent on a regular basis.  This does not mean, however, that the children must spend equal amounts of time with each parent.
• Sole physical custody means that the children live with one parent and the other parent has visitation.

Children’s Wishes

What are children’s rights?  Can children pick custody?  Can my child decide on which parent they want to be with?  The judge must consider what the child wants if the child is “of sufficient age and capacity to reason.” Children age 14 and older are also entitled, if they desire, to express an opinion about custody issues to the court.  In either case, however, the judge is not required to follow the child’s wishes.

Child Support

Can I get child support in divorce?  You many have to address child support during a divorce proceeding.  Child support is the ongoing and periodic payment made by a parent for the financial benefit of a child.  Child support can be requested by a parent or by the State of California.  Child support is determined by each parent’s parenting time and each parent’s income.  Child support can be requested by either parent at any time and child support cannot be “waived.”  Alternately, if your child is receiving assistance from a county or the State of California, both parents can be requested to pay child support to compensate for the financial aid provided to the child.

Spousal Support

I need spousal support.  How do I get spousal support?  Will I have to pay spousal support?  Spousal support is also known as alimony in other states.  Spousal support is a legal obligation.  Spousal support is financial support in the form of payments made by one spouse to the other during separation and after divorce.

What is temporary spousal support?  Temporary spousal support are payments made after the date of separation and until a divorce is finalized.

What is permanent spousal support?  Permanent spousal support are payments made after a divorce is finalized.  Spousal support is available to either a husband or wife and is awarded to help one spouse attain the marital standard of living.  Usually, the spouse receiving such spousal support will pay federal and state income taxes on the money received.  The spouse paying spousal support will be entitled to a tax deduction.

How much spousal support can I get?  The amount of spousal support awarded is determined by considering certain factors, such as:  the standard of living during the marriage;   the length of the marriage;  and, the age, health, earning capacity and job histories of both spouses.  If the marriage lasted less than 10 years, it is unlikely that a judge will order spousal support for longer than half the length of the marriage.

Marital Assets

What happens to our assets?  What property can I get?  In California, all assets and debts acquired during a marriage is characterized as community property.  All property acquired before marriage, after to date of separation, by gift, or by inheritance is characterized as separate property.  During divorce, all community property is divided while all separate property is awarded to the acquiring spouse.  The division of property requires that all property be first characterized after which reimbursements and credits must be considered.

Obtaining Financial Information

What is financial information?  What can I do if my spouse is hiding money?  During your California divorce, if your spouse is withholding information about your property or finances, we can take their deposition, request answers to written questions, or conduct an Inspection Demand (a request that your spouse disclose and release important documents).

Property Division

What is community property?  How is community property divided?  In a California divorce, all community property is divided equally unless you and your spouse agree to an unequal division.  Community property is all property that you and your spouse acquired, through labor or skill, during the marriage.  This includes interests in pension, profit-sharing benefits, stock options, other retirement benefits, and any business owned by one or both of you.  Each spouse owns half of the community property.  This is true even if the property is in only one spouse’s name.

Debt Liability

Who pays the debts?  What debts will I have to pay?  In a California divorce, both spouses are responsible for community debts, debts incurred during the marriage.  The only exception being, student loans.  Division of debts can be done by an agreement entered into by you and your spouse or, if you and your spouse cannot agree, by the court.

Separate Property

What is separate property?  Does my spouse get my separate property?  Separate property is property acquired before your marriage (including rents or profits received from these items);  property received after the date of your separation with your separate earnings;  inheritances that were received either before or during the marriage;  and, gifts to you alone, not you and your spouse.  Separate property is not divided and belongs solely to the spouse who owns the property.  Problems can arise when separate property has been mixed with community property.  When this occurs, the community acquires an interest in the separate property.  However, you may be entitled to receive your separate property back even if it has been mixed.  Debts incurred before your marriage or after your date of separation are considered your separate property debts.

Restraining Orders

What is domestic violence?  What is civil harassment?  A domestic violence restraining order is issued to prevent a party from abusing another person with who they share a close relationship. Civil harassment orders are issued for those who do not sharing a close relationship.  Abuse includes causing a bodily injury, sexual assault, placing a person fear of imminent serious bodily injury, threatening, striking, harassing, destroying personal property, or disturbing the peace of another.

Cohabitation Claims

I live with someone and want half the house.  What can I get if I live with someone?  Cohabitation claims result when people live together but never get married.  You may have a cohabitation claim if you can prove that it was your intent to simply live together and not get married.  Should you have a cohabitation claim, you may be entitled to a division of any and all property that was accumulated during the relationship.  Your cohabitation claim could also provide you with financial support.

What is a common law marriage?  Am I in a common law marriage?  California does not recognize common law marriages.  Unmarried parties who cohabitate and have a relationship over long a period of time may have rights to financial support and property.  Unmarried parties can enforce promises of support or property rights through a civil court action rather than in family court.  These “cohabitation” actions are referred to as Marvin claims, named after the case involving the late actor Lee Marvin.

The California Supreme Court in Marvin expressly declined to treat unmarried cohabitants like married persons but did state that agreements, including oral contracts, between unmarried parties are enforceable.

A “Marvin claim” is a civil action and not a family law matter.  The statute of limitations (the time that you have to file an action) for a Marvin claim will depend upon which legal theories are asserted.  Cohabitation can result in a claim for breach of an express or implied contract, implied partnership or joint venture, quantum meruit, unjust enrichment, constructive fraud, or the imposition of constructive or resulting trust.

Palimony

What is palimony?  Can I get support from someone I live with?  Palimony refers to support payments that can be made to unmarried partners following a breakup.  These lawsuits are often called “Palimony Actions” or “Marvin Action.”  Such support payments have been permitted in California ever since a 1976 decision in the state Supreme Court which addressed premarital cohabitation.  Requests for support based on premarital cohabitation are not made through the family law courts because it’s not part of a divorce proceeding – palimony lawsuits are not family law matters.  Instead, these claims are filed as general civil actions, usually in conjunction with breach of contract or even implied partnership claims, among others.

California does not recognize common law marriages unless it was a common law marriage that was validly created in another state.  California does allow one partner to recover under a palimony action or as a putative spouse.

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