Divorce Law Offices of Ed Misleh
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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
What is a no fault divorce? California is a “no fault” divorce state. This means that you do not have to prove that your spouse did something wrong when you file for divorce. But, you must have “grounds” – a reason for requesting a divorce. In California, there are two grounds for divorce – irreconcilable differences and incurable insanity. Irreconcilable difference simply means that you and your spouse no longer get along; that there has been a complete breakdown of the marital relationship which beyond repair. Incurable insanity requires medical proof that one spouse is incurably insane.
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.
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.
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.
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.
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 California 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.
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.
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.
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.
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.
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.
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.
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.