Divorcing in California

Introduction

California is a no-fault state, meaning that evidence regarding a misdeed by one of the parties is not grounds for divorce. The existence of irreconcilable differences, where you have been unable to resolve your differences, is all that is required for filing for divorce. Dissolution of a marriage may also be based on incurable insanity (based on proof) under [California Family Code - Sections: 2310].

In situations where both parties have come to an agreement on the issues involved in dissolving their marriage, divorce can be completed in six months and one day from the date the divorce petition is served.  However, in more-acrimonious divorces, the process can take years and can result in considerable expense both financially and emotionally for all involved.  

General description of what to expect in the California divorce process

While each couple has different issues that are necessary to resolve in order for a divorce to be granted, there is a basic framework or process that the courts have in place. Nothing here is intended as legal advice. The following information is designed to provide a general idea of available resources and the overall steps through which the divorce progresses.

Residency Requirements

A filing for Dissolution of Marriage requires that one of the spouses has been a resident of California for six months and of the county in which the proceeding is filed for three months preceding the filing of the petition.  [California Family Code - Sections: 200, 2320]

Asking the court to grant a divorce in California

To begin a divorce in the state of California, one spouse must file a Petition, which is a request that the courts review the details both parties provide to the commissioner or judge before making a ruling. 

Petitioner

The party who files for divorce is referred to as the Petitioner. 

Respondent

The recipient spouse who is “Served” the legal form, usually by a third party, entitled “Petition for Dissolution of Marriage”, is referred to as the Respondent.

Summons

The Summons is the paper stating that one spouse is filing for divorce. The person filing for divorce must have someone 18 years old or older, personally deliver copies of the Summons and the Petition for Dissolution of Marriage to his or her spouse. If the spouse can’t be located, the judge may approve some other manner of notification. 

Respondent’s Response

After the spouse is served, that person has 30 days to file a Response. This document tells the court that the Respondent wishes to participate in the divorce proceedings. The person who must file the Response is called the "Respondent."

Default

If the Respondent fails to file a Response within 30 days after being served with divorce paperwork, the case proceeds through the necessary steps without the Respondent’s participation.  Failure to respond to the divorce paperwork does not stop the divorce that was put into motion by the Petitioner.  A court hearing may not be required in these circumstances for a divorce to be granted. 

Affidavit

Should the divorce proceed without Respondent filing an answer or Response to the Summons, the Petitioner then must file an affidavit or sworn statement that the marriage is ending because of irreconcilable differences. 

Petitioner Response

The Petitioner prepares a judgment and submits it to the court. The Petitioner requests orders concerning custody, visitation, child support, spousal support, attorney fees, and division of property. Six months and one day is the “waiting period” required after the Respondent is served, for the divorce to become final.

Multiple Processes

Many different steps may be in motion during the Discovery phase, where all the information is gathered so that the best possible decisions can be made in occurrence with California Laws. There are free forms on line that will provide examples of the information that needs to be obtained. These forms can take a lot of the mystery out of all the separate pieces of information that are necessary to gather.

If you have an attorney, your attorney will advise you. However, many people still find it helpful to have documents that serve as a guide and workbooks to follow. Ultimately, even if you are represented by an attorney, he or she will still rely on you to provide all the required documents.

Discovery

If the Respondent files a Response, the parties exchange documents and other information about their property and incomes. This is called Discovery. Discovery can be in the form of questions asked in person, by deposition or through written questions. 

All issues related to the marriage, such as child custody, child visitation, child support, spousal support, property division, valuation of assets, etc may take considerable time to resolve, especially when there is a lack of cooperative effort between the parties. Thus, it is often necessary to ask the courts to make temporary orders. 

Community Property

California is a community property state. This means that any real or personal property acquired during the course of the marriage, while residing in California, is community property. Except where there are written agreement of the parties or an oral stipulation by both parties in open court to the contrary, the court shall divide the estate of the parties equally. 

Separate property acquired before the marriage, gifted to one party, acquired by bequest or descent is considered separate property. 

Order to Show Cause

If one or both of the parties need the court to make orders before trial, either spouse may do so by filing an Order to Show Cause. This request usually will be for child custody, child visitation, child support, spousal support, attorney fees or for a domestic violence restraining order. Each party appears in court and explains his/her position. The court will make an order based upon the evidence. 

Settlement Conference

After discovery is complete, one party will set the case for trial. Normally, the court will schedule a Mandatory Settlement Conference before trial. This is a date in the courtroom where both sides are ordered to appear with their attorneys and attempt to settle as many issues before the trial as possible. If they are able to settle the entire case, a Marital Settlement Agreement is drafted and a judgment is drafted by one of the attorneys. 

Trial Date

At trial, each attorney presents evidence and arguments. The judge or commissioner makes orders on all unresolved issues. The judgment is prepared and approved by the divorce attorneys and then submitted to the court. Once the judge or commissioner signs the judgment and the six month waiting period has elapsed the divorce becomes final. 

Modification of Orders

Even after the court signs the judgment, some orders can be modified. These include child support, custody, visitation, and usually spousal support. Other orders can almost never be changed after the judgment is entered, including orders dividing property and orders awarding attorney fees.  

Child Custody

Custody may be awarded parents as joint legal, joint physical or sole custody. California law is based on making a determination of the best interest of the child. There is wide acceptance in most California courts that the best interest of minor children is served by both parents actively supporting and nurturing the relationship of their children with both parents. 

You will likely be instructed that no negative, denigrating comments are to be made about the other parent in front of the children. Court proceedings are not stresses that children are equipped to handle nor should children be exposed to the details of ongoing conflicts. Children need to be kept out of the middle of conflicts. Battles are expensive and take an enormous toll. Often, neither parent is happy with the decisions given over to the courts when they can’t reach an agreement themselves. 

Mediation

Prior to meeting with the Family Court Mediator you will be required to take a course that provides you with general information about how the court system works. When you do meet with the mediator, the mediator will encourage you to come to workable agreements. If you are still unable to agree, the mediator will make some written recommendations to help the court in the decision making process.  

Mediation as an option to Litigation

Some attorneys provide mediation services. In these situations the mediator is representing both parties to resolve differences and craft a workable agreement that serves the best interests of the children. 

Once both parties come to an agreement, the attorney writes it up and submits the settlement agreement to the courts. This process tends to save a great deal of the costs of litigation. Effective mediation requires that both parties are focused on coming to solution and resolving differences.

Custody Evaluation Services

Custody Evaluations are also available and these are paid for separately by the parents. Judges occasionally refer parents to Custody Evaluators who conduct an in-depth assessment of each parent and their relationship with the children. Their findings are used to help the court make custody decisions. Such evaluations are often sought when there are allegations of potential harm to the children.

Stipulation and Order for Appointment of Special Master

In some circumstances where there are highly contentious ongoing battles about the care of children, the court may appoint a Special Master. Special Masters are granted the authority to make on the spot decisions based on the best interest of the child. Specific terms and conditions are spelled out in the order. 

The role of the Special Master differs in various counties within California. It tends to be a hybrid role. 

• Evidence Code §730 (Custody Evaluator)
• Code of Civil Procedure § 1280 et.seq. (Arbitrator)
• Code of Civil Procedure §638 (Referee)
• Family Code §3160, et. seq. (Family Mediation)

 An appellate court decision in 1997 found that the use of a Special Master in custody cases could not be ordered by the court over the objections of a parent. However, a judge can recommend and parties can stipulate to the use of a Special Master as a decision maker.

Child Support

California holds that both parents of a minor child have an equal responsibility to support their child in the manner suitable to the child’s circumstances. The duty to support continues until completion of the 12^th grade or age 19 whichever occurs first. Should a child be incapacitated, both parents have a responsibility to the extent of their ability to provide for that child at any age.

Child Support and College Expenses

California has no current statute or case law holding that parents have a duty to provide for college expenses so many are recommending this be addressed in your settlement negotiations if parents have specific desires and intentions. 

Alimony/Spousal Support

The court considers spousal support taking into account the spouse’s ability to gain self-supporting employment and the extent to which the future earning capacity was impaired by time devoted to the care of minor children. Balancing the needs of each party and potential hardships, the goal is for both parties to be self supporting within a reasonable period of time.

Resources:

California Family Law Codes

http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=fam&codebody=&hits=20

California Courts Self-Help Center

Free Downloadable forms and “Fillable Forms” and detailed Instruction Booklets

http://www.courtinfo.ca.gov/selfhelp/family/divorce/divforms.htm goo.gl/AZyB

http://www.edivorcepapers.com/california-divorce-forms-and-papers.html   goo.gl/x7hw

Superior Court building Clerk’s Office

Forms are also available at the clerk’s office at the Superior Court building. During specific hours there are special lines at the court for obtaining free assistance to those who need help in completing the required paperwork. Be prepared for long lines and long waits. 

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Sandra Dye, MFT

is a child psychotherapist who works with children and parents.  Over her 30 years of practice she has developed a unique five step parenting system. This system helps parents stay connected with their children to have positive influence. 

Parents with different styles work from a blueprint that allows great flexibility and yet keeps everyone on the same page. As a result of following the blueprint co-parenting is enhanced.  The system works with all ages, with intact to divorced families and blended families.

Testimonial:

I wish I had heard about this system long ago because it would've helped me with raising my now15-yr old daughter. I have tried and seen for myself how much easier it is to use the 5 steps in disciplining/teaching all of my kids including my boys ages 5 and 2 than the way I was raised. Don't get me wrong, it takes work to change your way of thinking!  But once you do, and learn how to utilize the 5steps, you'll see nothing but positive results as I've seen with my own experiences!  No screaming, spanking or stressing! I'm all for avoiding all three! - Tonia Capitulo, Livermore, CA