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Divorce Process

Posted on October 25, 2019December 1, 2019 by Editor

You should carefully consider all of your options before you decide to file for divorce in California. Not only will you no longer be married but you may have to move, adjust to a different lifestyle, and make very difficult decisions concerning your children. Your divorce begins when either you or your spouse files a “Petition for Dissolution of Marriage.”

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Divorce Process

The divorce process in California begins by establishing jurisdiction. At least one of the spouses must have resided in the state of California for at least six months and in the county where the divorce is being filed for the past three months prior to the filing of a divorce petition. The divorce process does not require the filing spouse to provide specific facts as to why they are seeking a divorce. They can merely state that there are “irreconcilable differences” which have caused the break-up.

Simple Divorce Process

Couples who do not have children, have little property, minimal debt(s), and who are not seeking spousal support can file for a summary dissolution.

Service of Process

Once your divorce petition is filed, the petition will have to be served on the other spouse so that they can have time to respond. If the respondent spouse agrees to the terms, the divorce can be finalized without a trial. If the spouses cannot agree on the terms of their divorce, the Superior Court will schedule a hearing to resolve the matter.

Pre-Marital Agreements

A premarital agreement must be in writing and signed by both spouses. These agreements establish ownership of property that is acquired before or during the marriage, and how that property is to be used, transferred or managed. These agreements may also be used to address other issues such as the spouses’ will, trust, or the disposition of property upon a death. They are generally enforceable, once signed, but there are exceptions.

The future spouses cannot enter into an agreement that will adversely affect child support payments. Any provision regarding spousal support cannot be enforced if the affected spouse was not represented by an attorney when the agreement was signed. A provision regarding spousal support cannot be unconscionable.

Dividing the Property

California is a “community property” state, which means that all assets and debts acquired during marriage are presumed to be part of the “community” and are to be divided equally between each spouse.

Separate property is any property acquired by a spouse before marriage, income from property acquired before marriage, or property acquired during marriage by inheritance or gift. It is presumed that separate property belongs to the spouse who acquired the property.

Determining each spouse’s interest in community property can be complex, especially when you consider retirement plans, IRAs, pensions, investments, health and life insurance, and the debts you will have after divorce.

You are risking your future, and possibly the future of your children, should you not carefully consider all aspect of the property to be divided before you sign a divorce petition.

Mediation

There are some couples who may be able to avoid the expenses associated with a contested divorce by hiring an attorney to mediate their separation and eventual divorce. There are a number of advantages to mediation:

You reduce the amount of attorney fees that each of you will pay for your individual lawyer.
You will avoid paying attorney fees for your spouse.
The environment is much less tense.
Both spouses negotiate the divorce terms while the attorney provides advice and options.
The effect on family and others is minimized.
You maintain a non-adversarial relationship with your former spouse and your child’s parent.
Children are less affected.
There is only one person, the mediating attorney, who has the personal information of both spouses and your family.

In mediation, the attorney act as a mediator representing both spouses to negotiate a marital settlement that is fair to both spouses. Each spouse expresses their desires and the mediator offers various options that may lead to settlement. The mediator’s objective is to help each spouse articulate their goals and to offer options that best address their respective interests. Mediation is concluded when the spouses have reached an agreement. The attorney-mediator will then create a legally-binding settlement agreement that is filed with the court.