I. What Are The Requirements For Filing for Divorce, aka “Marital Dissolution” in California?

A. Divorce:

In the State of California, there are only two legal reasons for ending a marriage: [1] “Irreconcilable Differences” or [2] incurable insanity. Irreconcilable differences mean that no amount of marital counseling will save the marriage. California is a “no-fault” divorce state, meaning that you do not have to give the court any other reason for ending your marriage, as opposed to other states which require proof of adultery, etc.

To file for a California divorce, you must have lived in California for 6 months and for 3 months in the county where you intend to file the divorce paperwork. A “Petition” is filed with the county clerk’s office, along with a Summons.

The importance of personally serving the Summons and Petition on your spouse is that the Summons includes automatic, built-in family law restraining orders preventing either spouse from selling or giving away any property, changing any insurance policies or beneficiaries, or taking any children of the marriage out of the State of California without the express written consent of the other spouse. These automatic restraining orders state as follows:

“Starting immediately, you and your spouse or domestic partner is restrained from:

1. removing the minor child or children of the parties, if any, from the state without the prior written consent of the other party or an order of the court;
2. cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage, including life, health, automobile, and disability, held for the benefit of the parties and their minor child or children;
3. transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life; and
4. creating a nonprobate transfer or modifying a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the disposition of property subject to the transfer, without the written consent of the other party or an order of the court. Before revocation of a nonprobate transfer can take effect or a right of survivorship to property can be eliminated, notice of the change must be filed and served on the other party.

You must notify each other of any proposed extraordinary expenditures at least five business days prior to incurring these extraordinary expenditures and account to the court for all extraordinary expenditures made after these restraining orders are effective. However, you may use community property, quasi-community property, or your own separate property to pay any attorney to help you or to pay court costs.”

Personal service of the Summons and Petition can only be accomplished by someone who is 18 years or older who is not a party to the divorce, and alternate means of service may be necessary if the other spouse cannot be located.

B. Should I File for Legal Separation or an Annulment instead of Marital Dissolution?

Legal Separation:

In situations where a party wants to obtain orders for child custody, visitation, and/or other issues but has not lived in the same county for the past 3 months or in California for the past 6 months to meet the time requirements for filing for divorce, that party can file for Legal Separation and amend his or her Petition to a divorce after 6 months have passed.

Legal Separation is also appropriate for some parties for religious and/or insurance coverage issues. Medical insurance companies who had previously insured a spouse under the other spouse’s medical insurance during the marriage generally terminate such coverage options when a divorce is finalized. Therefore, for spouses who would have difficult in obtaining their own medical insurance coverage after termination of their marriage due to pre-existing medical conditions, a legal separation can make sense because it enables such medical insurance coverage to continue. The Court can make orders relating to child custody, visitation, child and spousal support and divide property in a legal separation case, but the parties otherwise remain married to each other.

Annulment:

An annulment, if granted by the court, means the marriage never existed. An annulment is appropriate where one of the parties married generally when he or she was a minor without parental consent, or where fraud or deceit was involved (that, if known at the time of marriage, the other party would have never entered into the marriage).

II. Seeking Temporary And Long-Term Court Orders for Child Custody, Visitation, Child Support, Spousal Support and Other Issues.

Order to Show Cause:

After the initial divorce paperwork has been filed with the court, either spouse may file for an “Order to Show Cause” hearing with the court requesting a hearing to decide temporary orders for child custody, visitation, child support, spousal support, and other orders while the divorce is pending. Other orders can involve temporary use of marital property, restraining orders and orders that one party pay the other party’s attorney fees and costs.

Mediation:

Whenever an Order to Show Cause (OSC) hearing addressing child custody and visitation issues are filed, the Court will order that the parties attend mediation at no cost through the court’s mediation department prior to the Order to Show Cause hearing date. Although the law requires that the parents participate in mediation, there is no requirement that they reach an agreement.

Mediation is intended to reduce conflict between the parties by encouraging cooperation and assisting parents in creating their own parenting plan that meet the needs of their children with their best interests in mind.

The court mediators are generally trained professionals who have at least a Master’s Degree and have extensive experience in psychology and marital/family counseling, and are trained in conflict resolution.

In mediation, the mediator meets with the parties either together and/or individually. If there has been domestic violence between the parties, the mediation is usually held in separate sessions with each parent for safety reasons and to avoid any appearance of intimidation.

The mediator works to assist the parties in focusing on parenting arrangements that are in the best interests of their children and can put together a partial or full parenting agreement schedule (including legal custody, parenting plans, holiday and vacation schedules, transportation or other issues) depending on what the parties are able to agree upon in mediation.

Parents can sometimes resolve all of their parenting issues in mediation, sometimes only a partial agreement can be reached, and otherwise no agreement is reached. Mediators only draft agreements that are acceptable to both parties. If the mediation agreement is still agreeable to both parties at the time of the Order to Show Cause hearing, it can be adopted and incorporated into a court order.

Only the parties attend mediation, with no attorneys, spouses or other family members present, although a second session can sometimes be requested so that the mediator can speak with the parties’ children, if it is believed that such feedback would be helpful in assisting the parties to develop parenting plans.

Mediations are merely efforts for the parties to meet face-to-face without their attorneys to attempt to resolve such issues. Mediators do not make recommendations to the Court on parenting plans.

However, in Riverside County and other Inland Empire Family Courts, the court mediator can make recommendations regarding child custody and visitation that the Court judge will very likely give substantial consideration to in making court orders.

Mediators are allowed under the law to make recommendations to the Court where there are allegations of domestic violence, drug and/or alcohol abuse, and other concerns of the mediator affecting the welfare and best interests of the children. Such recommendations can include an emergency child custody evaluation, a domestic violence investigation, a full psychological child custody evaluation, or the appointment of a “minor’s counsel,” who is a private attorney appointed to represent and protect the best interests of the minor children.

Stipulation (Agreement) Of the Parties:

When parties are able to work together in reaching agreements for temporary orders or final settlement of their entire marital dissolution case, a “Stipulation & Order” for temporary orders or a “Marital Settlement Agreement” can be drafted by the attorney outlining the terms of such agreement which the parties and their respective counsel will sign and when filed with the Court, they become official orders of the Court.

Trial:

If the spouses ultimately are unable to reach a more “permanent” agreement on all custody, visitation and related issues, the parties will need to request that a trial date be set to have the judge assigned to the case decide the issues. There are no juries in family law court, so such issues are generally decided by the Judge or a Commissioner of the Family Law Court.

Judgment:

California has a six-month “cooling-off” period prior to entry of Judgment in a marital dissolution case, meaning that a Judgment terminating the marriage cannot be entered until at least 6 months after the date the other spouse was served with the Petition for marital dissolution has passed. However, nothing happens automatically when the 6 month time period is reached, and the Court does not automatically terminate the marriage after 6 months. Entry of Judgment requires either a formal Marital Settlement Agreement be entered into by the parties as part of a Judgment package filed with the court, or otherwise by court orders made at trial.

[i] Bifurcation of Marital Status:

Until a judgment is entered in your divorce case, you cannot legally remarry. However, in cases where the issues are heavily contested, it is possible to seek a “Bifurcation of Marital Status” either by agreement or court order whereby the Court separates the issue of marital status from the rest of the case, restores the parties to the status of single persons, and reserves the remaining issues for further determination. Bifurcation of marital status enables the parties to remarry while they continue to negotiate and litigate the remaining issues of their divorce.

III. Failing To Respond To The Divorce Papers (Default)

If a spouse has been served with divorce papers, that spouse must consider the divorce to be a real lawsuit, i.e. that person is being sued in court for divorce. The same requirements for a regular lawsuit apply, meaning that if a spouse does not file a Response to the divorce papers within 30 days of being served with the Summons and Petition, the person filing for divorce can file default papers requesting that the court grant the orders requested in the Petition and submit a Judgment for the court seeking only that which was requested in the Petition.

In other words, even if the other spouse does not want a divorce, it does not matter and that spouse cannot stop it from proceeding.

If the spouse being “sued” for divorce does not contest the divorce, the parties can work together to enter into a Marital Settlement Agreement as part of an uncontested divorce and, therefore, a court hearing may never be necessary.

IV. Disclosure of The Spouses’ Financial Assets, Debts, Incomes and Expenses

The next step after service of the Summons and Petition for Marital Dissolution and the Response thereto is for both parties to complete and exchange their own “Preliminary Declaration of Disclosure.”

Both parties in a California divorce are required to disclose detailed, accurate information to the other about their respective incomes, expenses, property (both marital and separate property), and all debts and obligations. These mutual disclosures are called the parties “Preliminary Declaration of Disclosure. These formal disclosures are signed under penalty of perjury. A Final Declaration of Disclosure can be completed at approximately the time of trial or settlement in the case, unless the parties mutually agree in writing to waive such final disclosure.

These Declarations of Disclosure consist of special forms required by the court, and except for proof that the parties served each other with such forms, these forms are otherwise not filed with the court. The 4 forms that generally comprise the Declaration of Disclosure are:

1. Declaration of Disclosure (Form #FL-140)
2. Income & Expense Declaration (Form #Fl-150)
3. Schedule of Assets & Debts (Form #FL-142)
4. Declaration of Service of Declaration of Disclosure
(Form #FL-141)

The purpose of such financial disclosures is to make settlement negotiations easier to proceed because of the generally clear picture of the parties’ financial situation given by such formal disclosure. Moreover, it protects the parties in the event that either spouse failed to disclose all assets. ).

California law requires that the disclosure documents be completed and served twice, once at the beginning of the divorce (i.e. Preliminary Declaration of Disclosure) and then again near the end of the case immediately prior to trial or Judgment (i.e. Final Declaration of Disclosure). However, the parties can agree to waive service of the Final Declaration of Disclosure, as long as such waiver is in writing on the appropriate legal paperwork.

V. So Who Gets The Pots & Pans? (DIVISION OF PROPERTY):

Community Property:

California is a “Community Property” state, meaning that each spouse owns a one-half interest in all real and personal property and debts acquired during the marriage, regardless of whether one or both parties were gainfully employed during the marriage or how title to the property or debt is held. Such assets can include pensions and other retirement plans, and investments. Such debts can include credit card bills.

There are exceptions to the rule of community property, such as gifts or inheritances received during the marriage that were not commingled (intermixed) with community property (like joint bank accounts) during the marriage. Gifts and inheritances are generally considered the separate property of the spouse that received them. Moreover, student loans are generally considered the separate property debt of the party who incurred them, because they keep the benefit of their education paid for by such loans even after the marriage ends. Separate property is also anything you owned before you got married or that you earned or received after your date of separation.

In dividing community property, it is the intent of California law to divide up the property in such a way so that one party takes an asset of one value, the other party takes another asset of equal value, so that in the end, the value of the divided assets have been equalized between the parties. After all, simply because both parties own one-half of the dining room table does not mean that it makes any sense to grab a chainsaw and cut the table in half!

Under some circumstances where the assets have been divided up as equally as possible but the division is still one-sided, an “Equalization Payment” may need to be made to equalize the value of the property divided.

Separate Property:

Separate property is assets and debts acquired or incurred prior to the date of marriage, or after the parties have separated, as well as inheritances received before or even during the marriage, and gifts to a particular spouse. Separate property can include the rents or profits generated from such separate property. Separate property is not divided by the Court as part of the marital property.

Where separate property has been commingled with community property assets, a spouse claiming a separate property interest has the legal burden of tracing the source of such assets, which can be very complicated. In certain situations, a forensic accountant may need to be appointed in order to address and resolve complex tracing issues.

V. When Is My Divorce Final?

A California divorce cannot be ordered by the Court until at least 6 months after the other spouse was served with the initial Summons and Petition, i.e. a “cooling off” period that cannot be shortened or waived. Moreover, nothing will happen after those 6 months in ending your marriage unless you and your spouse enter into a written judgment agreement or otherwise take the divorce to trial. In other words, a divorce judgment can only happen with either an agreed-upon judgment or going to trial. Until that time, neither party can legally remarry.

In situations where the parties have not resolved all issues or one or both parties seek to be divorced in order to remarry, a party can seek a “bifurcation” of marital status, wherein the court terminates your status as a married couple but reserves jurisdiction over all other issues of the marriage until further agreement can be reached or the case goes to trial.

VI. Simple Divorces (“SUMMARY DISSOLUTION”)

For couples who have been married for less than 5 years, have no children together, will not seek spousal support from each other, have very little property or debts together, and can mutually agree on how to divide their property and debts, a California “summary dissolution” is a simplified alternate to a regular divorce. Such couples can complete and file special forms together with the court and will not need a court hearing to finalize their divorce.

Legal Requirements:

1. The parties have been married for 5 years or less.
2. The parties have no children from their relationship.
3. Neither party owns a home or other real estate property.
4. The value of all community property totals less than $25,000.
5. The combined total debt of the parties is $5,000 or less.
6. The parties mutually agree to waive spousal support from the other.

VII. The Discovery Process

In divorces that require determinations of the fair market value of marital assets, community businesses, debts, and self-employment incomes for support purposes, “discovery” requests served on one or both spouses may be necessary. Such discovery requests can require responses to general and specific questions, production of documentation and other tangible items, and depositions of the parties or third parties.

Completion of the discovery process is generally necessary before a divorce case can be set for trial and can slow down the divorce process. However, such discovery is necessary to protect the parties’ rights and ensure a fair and reasonable division of the parties’ assets and debts.

VIII. Legal Separation and Annulment

Those individuals contemplating divorce often believe that their marriage continues until the divorce is granted by the court or they file for separation. However, a couple is considered separated in California if there is some factual basis showing an intent by at least one of the parties to no longer remain married, such as moving out of the marital residence, or even simply moving into another bedroom of the marital residence with no continued sexual relations between the parties. The date of such event is generally considered the parties “date of separation.”

In situations where the parties no longer wish to remain a couple but do not wish to legally terminate their marital status for purposes of continuing medical insurance coverage, or where the party filing does not meet the 6 month California residency requirement, filing for “Legal Separation” can be a better option than divorce. Couples who want a legal separation file the same papers and follow the same legal process as those couple who file for divorce, except that neither party can remarry. Otherwise, those parties can divide up their property and debts and seek orders for child custody and visitation, child support and spousal support and related orders.

What About An Annulment? In order to qualify for an annulment instead of obtaining a divorce, the party seeking an annulment must be able to prove that the parties’ marriage was “void” (i.e. an incestuous marriage or where one of the parties was still legally married to another individual at the same time) or “voidable (where the party seeking annulment was under 18 years of age at the time of marriage or that the marriage was entered into based upon fraudulent representations, force, or mental and/or physical incapacity). It is generally substantially more difficult to obtain an annulment than a divorce.

IX. What About the Kids? (CHILD CUSTODY & VISITATION)

There are two types of child custody, Legal Custody and Physical Custody. Legal Custody concerns who is entitled to make the decisions concerning the health, education and welfare of the parties’ children. Physical Custody involves who has the children and on what days and times.

• Sole Legal Custody means that one parent has the right to make the decisions concerning the health, education and welfare of the children.
• Joint Legal Custody means that both parents must confer and share the responsibility and right to make the decisions concerning the health, education and welfare of the children.
• Sole Physical Custody means that the children live with one parent with the other party having regular visitation.
• Joint Physical Custody means that the children spend a substantial amount of time living with both parents, but does not mean that there is a pure 50% split of parental time between the parents.