We often have Irvine, Orange County clients ask our attorneys, “How does divorce work in California”? This page is designed to explain just how divorce cases work from start to finish, the different types of cases for divorce, and discusses the myriad of issues that may arise during divorce.
Getting Started
Divorce cases are started different ways depending on the circumstances of the particular case. Typically, a divorce case is started when one spouse files for divorce in the county in which they reside or the other party resides. The document filed is called a Petition for Dissolution of Marriage. Other forms are also filed with the Petition including a Summons and if children are involved, the law requires the filing of a Declaration Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).
As soon as the case is filed a case number is given and a judicial officer is assigned to the case. A filing fee is mandatory unless the person filing qualifies for a fee waiver because they are indigent and can’t afford the fee.
The documents are then served upon the other spouse. The person filing the case is called the petitioner and the other spouse is called the respondent. These are other words that essentially mean “plaintiff” and “defendant”.
Any competent adult that has no interest in the proceeding may serve the dissolution of marriage documents on the respondent. The best way to effectuate service is to physically hand the documents to the respondent; however, there are other lawful ways to serve documents in limited circumstances. For example, when a respondent cannot be found the petitioner can request an order by the family court where the summons is published in a newspaper. Or, one of the best ways is where the responding party is cooperative and signs a document called a Notice and Acknowledgement of Receipt which means they are served as of the date they sign that form.
Once served, the responding party has to file a Response within 30 days.
Summary Dissolution
Summary dissolution is a type of divorce case that involves the joint filing of a petition. To qualify for summary dissolution, parties must be married for less than five years, they cannot have any children born of their marriage to each other, they cannot own real property (i.e. house, condo, townhome, land, etc.), they do not have many assets or much debt, and they agree to all terms to finalize their case including the amount (if any) of spousal support to be paid.
A detailed guide about Marital Settlement Agreements and Stipulated Judgments is available here.
What is the Date of Separation?
One of the lines on the Petition for Dissolution of Marriage asks for a date that the parties separated. This is a legally important date and generally requires a physical separation and an intent by at least one party to terminate the marital relationship. In the past, the requisite physical separation could be construed to include simply living in separate bedrooms. However, the recent Davis case in California by the State’s highest Court created a rather bright-line rule that parties must be living separate and apart from each other to meet the “physical separation” requirement.
Why is the date of separation important? This date serves as the “financial division” date where the parties no longer continue to acquire community property together. After the date of separation all income, retirement benefits, real estate and other assets and debts are the separate property of the party that earns or acquires the property. Thus, the date of separation is extremely important.
If you are determining what date of separation is appropriate or best for you in your case, consider what assets were acquired and the method of acquisition by each party after the proposed date of separation as well as what happened with the earnings or assets. Usually the party that earns less money wants a later date of separation and the party that earns more money wants an earlier date of separation.
The general rule of thumb for determining the date of separation when there is no agreement as to the date is the later date will be found to be the date of separation by the family court.
Can we File for Divorce if we Still live Together?
Given the Davis decision, it is actually unknown whether the court is permitted to grant a divorce when parties live together. However, the most likely answer is that the family court would be able to grant the dissolution when the parties agree on their separation date or where the parties have taken active steps to truly separate their status as a married couple into single persons. For example, if spouses wrote letters or emails to each other stating that they were separated, divided bank accounts and separately paid expenses, told all their friends and family that they were separated and did not spend time together, and other similar behaviors, it is probable that the divorce court would grant the dissolution of marriage, even though the parties still live together.
What if my Spouse and I have an Agreement?
Great! The best way to resolve any case is to reach an amicable settlement that both parties can live with at the earliest possible date in the divorce proceeding. If you have an agreement, called a “Marital Settlement Agreement” or “Stipulated Judgment”, that document and other “judgment” forms will be signed and sent to the court for processing. Your case can usually be resolved without the necessity of a court appearance. Our office can save you significant time and money in getting your judgment packet processed in a timely fashion, as we are familiar with the Orange County family court system and clerks.
How Long does the Divorce Process take in California?
The length of time it takes to conclude a case from start to finish depends on the complexity of the case and whether agreements are reached on all the issues. For example, in a summary dissolution case the parties already have a full agreement that they file with the court for processing. You just have to wait for the documents to be returned from court and wait for the conclusion of the 6-month “cooling off” period that every getting a divorce has to wait. Typically, the waiting period begins after the respondent is served with the divorce papers.
Although your divorce may start as a contested matter, you can still reach agreements any time after each party’s respective financial disclosures are given to the other side.
In the best scenarios, divorce judgments can be obtained within a matter of months. In the worst scenarios, divorce judgments can take many years.
Keep in mind that even when a divorce or dissolution of marriage agreement and other judgment documents are filed with the court, it can take up to 4 months or more for the court clerk to process the paperwork. This depends on how busy the court is at the time you submit your judgment packet.
Is Arbitration or Mediation Possible for Dissolution of Marriage Cases?
Arbitration is typically only used in a situation where parties agree to remove their case from the court system and have a privately compensated judge to make decisions, which are binding and enforceable. The downside for hiring a privately compensated judge is that is adds another layer of expense. However, there are a number of significant benefits to hiring a private judge. First, it is much, much easier to get a prompt hearing date. Parties don’t need to wait months and months to be heard on a Request for Order. Second, privately compensated judges typically work out of an office or they will come to your attorney’s office. This is beneficial because the hearing is not heard in “open court” where anyone can watch what’s going on. Typically, cases that are send out with a private judge are resolved much more quickly than through the courts.
Mediation is a valuable tool for all parties and some form of mediation or settlement meetings should occur at the earliest stages of the divorce case. It’s a wonderful opportunity to resolve as many issues as possible. Mediation is a meeting set up with the parties, their attorneys, and neutral mediator that talks with everyone and tries to get the parties to compromise. Many divorcing parties hire a mediator to handle their case without ever hiring their own counsel.
For more information about our “online mediation” service available to all clients throughout California, reach out to a San Diego divorce lawyer. This service allows for divorce mediation with our divorce experts using videoconferencing technology.
How Discovery Works in California divorce cases
Discovery refers to the set of ways that a party can obtain information in a court case, including dissolution of marriage cases. Discovery is governed by the set of rules found in the California Code of Civil Procedure. Discovery can be used to compel the other party to provide information such as documents or answers to questions under oath, it can be used to obtain information from third parties that are not even involved in the case, and it can be used to prepare for trial. A responding party can begin conducting discovery right away in the case, while the petitioner has to wait several weeks to get started. It is best to have an attorney help you with discovery, even if you pay them for “consulting” services so you make sure to handle things correctly.