Divorce is a significant life event that can be emotionally, financially, and legally challenging. The process is often complex and requires navigating a myriad of legal rules and regulations. While each case is unique, the basic structure of divorce in California follows a relatively consistent process. In this guide, we will break down each step of the divorce process so you can feel more prepared and informed as you move forward.
Step 0: Deciding to File for Divorce
The decision to divorce is one of the most critical and personal choices someone can make. Often, this decision comes after months or years of contemplation. It’s essential to fully understand the implications of divorcing before proceeding. This phase may include:
- Consulting with a therapist or mediator: Sometimes, marriage counseling or mediation can help resolve conflicts before making the final decision.
- Evaluating the impact on children: If children are involved, it’s essential to consider how divorce will affect them emotionally and legally.
- Financial review: Divorce has significant financial consequences. Reviewing assets, debts, and incomes is a critical first step.
Once you decide to end your marriage, the next step involves initiating the legal process.
Step 1: Understanding California’s Divorce Requirements
Before you can file for divorce in California, you must meet the state’s residency requirements. California law requires that either you or your spouse:
- Must have lived in California for at least six months before filing for divorce; and
- Must have lived in the county where the petition is filed for at least three months.
If you meet these residency requirements, you can proceed with filing your petition for divorce. If not, you may need to wait until you have established residency in the appropriate jurisdiction or you may consider filing for legal separation.
California is a “no-fault” divorce state, which means that you do not need to prove wrongdoing by your spouse (such as infidelity or abuse) to file for divorce. The grounds for divorce in California are “irreconcilable differences,” which indicates that the marriage has broken down beyond repair, or “permanent legal incapacity to make decisions.”
Step 2: Filing the Petition
To initiate the divorce process, one spouse (the petitioner) must file a Petition for Dissolution of Marriage (FL-100) with the Superior Court in the county where one spouse resides. This legal document outlines the basic details of the marriage, such as the date of marriage, the date of separation, and the specific requests the petitioner is making, such as child custody, property division, and spousal support.
In addition to the Petition, the petitioner must also file:
- Summons (FL-110): This notifies the other spouse (the respondent) that the process has been initiated and provides important information about their legal rights and obligations.
- Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (FL-105): This form is required only if there are minor children of the marriage as it provides necessary information for the Court to determine whether it has jurisdiction to make orders regarding child custody and visitation.
Once these documents are prepared, the petitioner must pay a filing fee to the court.
Step 3: Serving the Papers
After the Petition and corresponding documents are filed, the next step is to serve the other spouse with the dissolution paperwork. Service of process ensures that the other spouse (respondent) is formally notified about the petition and given the opportunity to respond.
California law requires that divorce papers be served by someone other than the petitioner who is over the age of 18. The server can be:
- A professional process server;
- The county sheriff’s office; or
- Any adult who is not involved in the case.
The process server will deliver the Summons and Petition (and the UCCJEA if required) to the respondent, along with a blank Response form (FL-120) and blank UCCJEA (FL-105) (if there are minor children), which the respondent will need to fill out and return. Once the papers are served, the process server will complete a Proof of Service (FL-115) form, which must be filed with the court to confirm that the respondent was properly notified.
As an alternative to personal service, if the respondent is amenable to accepting service, you may consider mail service of the dissolution paperwork accompanied with a Notice and Acknowledgment of Receipt (FL-117), which the respondent signs and returns, and which must be filed with the court to confirm completion of service. As with personal service, service by Notice and Acknowledgment of Receipt must be completed by someone other than the petitioner who is over the age of 18.
Step 4: Response and Possible Temporary Orders
The respondent’s next step is filing a response (FL-120) within 30 days of being served. In their response, they can agree or disagree with the terms laid out in the petition. Although the Petition and Response may identify areas of disagreement, the filing of this paperwork does not automatically trigger hearings on disputed issues.
Once the Petition has been filed and during the pendency of the dissolution, one or both parties may request temporary orders to address immediate issues like child custody, support, or who gets to stay in the family home. These temporary orders provide clarity and structure while the divorce is in process and typically last until the dissolution is finalized.
Step 5: Financial Disclosures
California requires both parties to exchange financial information, unless the matter is proceeding by default. This step is crucial as it helps both parties and the court understand the financial landscape of the marriage. It also ensures that assets, debts, and income are fairly divided and appropriate support is calculated.
Both parties will complete:
- Schedule of Assets and Debts (FL-142): A list of all assets and debts, both community and separate. This document is exchanged between the parties but is not filed with the court.
- Income and Expense Declaration (FL-150): A breakdown of each party’s income, expenses, and financial obligations. This document is filed with the court by each party.
- Declaration Regarding Service of Declaration of Disclosure and Income and Expense Declaration (FL-141). This form is used to notify the court that a party has served their financial disclosures and must be filed with the court by each party.
Step 6: Negotiation and Settlement
In many cases, spouses are able to negotiate the terms of their divorce without going to trial. These negotiations can cover everything from property division and child custody to spousal support. Mediation or collaborative divorce may be used during this phase to reach a mutually agreeable settlement.
Mediation involves a neutral third party helping both sides find common ground and resolve issues amicably. Collaborative divorce, on the other hand, is a process where each spouse hires a collaborative attorney, and both parties agree to work together without going to court.
If a settlement is reached, the terms are documented in a Marital Settlement Agreement (MSA), which is then submitted to the court as part of the Judgment for approval. If both parties agree, the judge will likely approve the agreement, and it will become part of the final judgment.
Step 7: Court Hearings and Trial (If Necessary)
If you and your spouse cannot reach an agreement on key issues, the case will go to court, and a judge will make decisions on your behalf. This can be a lengthy and expensive process, but it is sometimes necessary when there is a major disagreement over critical issues like child custody, spousal support, or the division of high-value assets.
During the trial, both parties will present their case, submit evidence, and possibly call witnesses. The judge will then issue rulings on the contested issues. After the trial, the judge will finalize the divorce by signing a Judgment of Dissolution.
Step 8: Finalizing the Divorce
Once all issues are resolved, whether through settlement or court rulings, the divorce can be finalized. In California, there is a six-month waiting period after the petition is filed before divorces can be finalized. This means that even if both parties settle quickly, the divorce will not be official until six months and one day from the date the petition was served.
The divorce process is considered final when the Judgment of Dissolution is signed by the judge and filed with the court. This judgment will outline all of the final agreements, including child custody, support, and property division. At this point, both parties are legally divorced.
Post-Divorce Considerations
Even after the divorce is finalized, there are often post-divorce issues to handle. These may include:
- Adjusting child custody or support: Life changes, such as a change in income or relocation, may require modifications to custody arrangements or support payments.
- Enforcing court orders: If one spouse fails to comply with the final judgment, the other may need to go back to court to enforce the order.
- Reviewing your estate plan: After getting divorced, it’s a good idea to update your will, trust, and any other estate planning documents to reflect your new marital status and ensure your assets are distributed according to your wishes.
Working With a Family Law Attorney
Navigating the divorce process can be overwhelming. A skilled family law attorney can help you understand your rights, advocate for your best interests, and guide you through each step of the process. At Flicker, Kerin, Kruger & Bissada LLP, our experienced divorce attorneys are committed to helping clients through even the most complex divorces with compassion and expertise.Whether you’re considering ending your marriage or already in the process, we are here to help. Reach out to our team today to schedule a consultation and learn more about your legal options. Understanding the divorce process is the first step toward a brighter future.
