In California, there are 3 ways to dissolve a marriage or registered domestic partnership: divorce, legal separation and annulment.
It’s not necessary for both spouses to be present because California is a “no fault” divorce state.This means that the spouse/partner asking for the divorce doesn’t have to prove that the other spouse/partner did anything wrong.
The spouse/partner can simply state that the couple simply cannot get along. This is called “irreconcilable differences.”
Even if the other spouse/partner doesn’t want to get a divorce, they cannot stop the process by refusing to participate in the case.
Should this be the case the spouse/partner will still be able to get a “default” judgment and the divorce will go through.
I’ll go through things in a little more detail.
Here are the steps to follow and what the process looks like when filing for a divorce, legal separation and/or annulment.
- Filing paperwork-A petition for divorce needs to be filed with the local court. The petition provides important and relevant information to the Court including full names of spouses/partners and children shared as well as the date of the marriage and the reason for the divorce. If you are filing the petition, you are known as the (“petitioner”)
In addition to the petition, you may also file a request for temporary court orders. This can include things such as child custody arrangements, child support or alimony. Remember that this would be a temporary order that is only valid during the divorce process. When the divorce is finalized there will be permanent agreement put in place.
2. Serve Non-Filing Spouse-Even though filing the Petition begins the process, it’s not official until a copy of the divorce papers are served upon your spouse/partner (“respondent”). In addition to the Petition, a Summons needs to be prepared and served as well.
This can be done one of two ways:
- Process of Service-Hiring a neutral third party over the age of 18 to deliver a copy of the Petition, Summons and any other divorce papers directly to the respondent. Once the respondent is served, the process server must sign the Proof of Service of the Summons and file it with the Court.
Or
- The petitioner could send the divorce papers USPS Certified Mail Return Receipt and submit the Acknowledgement of Receipt to the Court as proof of the service.
3. Non-Filing Spouse Response-Once the service is complete on your spouse, they will have 30 days to respond to the divorce papers. What happens next generally depends on whether the spouse will have a contested divorce (spouse disagrees about all or some of the terms of the divorce) or uncontested divorce (spouse agrees with the terms and either will ignore the divorce summons or file a response in support of the terms).
Should the respondent ignore the divorce papers or does not respond, the divorce will be considered in default and the request for the divorce and the petitioner’s initial terms will be granted. If this happens the respondent loses his/her right to contest any elements of the divorce.
4. Negotiating the Terms of the Divorce-Although it’s possible for spouses to agree on all the details of the divorce from the beginning, it’s usually not very common. Most divorces are contested by a spouse. When this happens spouses try very hard to negotiate the terms of the divorce privately.
Some issues that may have to be resolved in a divorce include:
- Division of Assets
- Child custody
- Child support
- Spousal support, and
- Paternity.
Courts do have the authority to step in and make unilateral decisions, but usually refrain from doing so. In most situations, spouses are required to attend mandatory mediation sessions to work out the details of the divorce. Courts will step in if attempts at good-faith negotiations are unsuccessful.
Some ways to negotiate out of Court are:
Mediation: Is when a neutral third party “mediator” who works with spouses individually and collectively, to help them identify the big issues and move towards a mutually agreeable resolution. This allows the parties to remain in control over the outcome of the divorce.
Arbitration: This is essentially a private trial. It’s when a neutral third party “arbitrator” presides over a hearing in which both parties are represented by an attorney and propose arguments, offer evident and present witnesses. Once all the information is presented before the arbitrator, the arbitrator will make a final decision regarding the divorce. This is a great alternative to a Court proceeding because it’s private, less expensive and less time-consuming.
Collaborative Divorce: This is a great option if the parties are committed to avoiding the court system literally at all costs. Both parties are represented by counsel to sit down and negotiate the terms of the divorce. Each side may present evidence and witnesses. The parties must commit to resolving the split privately and if unsuccessful, must hire a new attorney and start the process over. This way allows the parties to retain complete control over the negotiations.
5. Litigation-If you cannot come to an agreement with the divorce terms, you can turn to the courts for help. A family law judge will schedule a trial date and hear arguments from both sides. Keep in mind that when a divorce goes to trial you lose the right to control the outcome. The decision(s) made by the court will be final and binding. Both spouses will be required to comply with those terms. Any violation of court orders, including those relevant to a divorce, can and will have serious legal consequences.
6.Final Judgement– The process of divorce will officially end when 1) time requirement has been met and 2) all the terms have been finalized.
In California, State law requires a time requirement of six month for a divorce. It doesn’t just happen overnight. The six months begin when your spouse has been officially served. This is the same even if the divorce is uncontested.
Once the six months have passed and the terms have been negotiated, a California family law judge will review the case. If everything is in order and acceptable, the judge will sign an Order of Dissolution, which terminates the marriage.
Just make sure to finalize the terms between each other including figuring out how to divide the family, assets, debts, custody of the kids, and spousal support. A judge will not sign off on the divorce without the spouses providing proof that they have worked out all the relevant details of the dissolution.
7. Modifications-If circumstances change after your divorce is finalized, you can make modifications You can file a request with the Court to modify the terms of the divorce. Courts will consider a modification to divorce orders if there’s a valid demonstration and substantial need for the change.
For instance:
- A spouse remarries
- A parent fails to uphold his or her obligations under the child custody agreement
- Parents move away
- Children develop new financial requirements
- Abuse or neglect is suspected, or
- A spouse loses his or her job.
If you want to end a registered domestic partnership, you must also file for a dissolution (divorce), legal separation, or annulment to end their relationship. There is a limited exception where domestic partners can end their relationship by a summary process through the Secretary of State. But only if you’ve been registered for less than five years and have no children, real property, very little debt or assets and a written agreement on the division of your property. To learn more about the process click on the court link below.
I know a divorce, separation or annulment is never easy. It can be time-consuming, complicated and stressful because the decisions you make along the way will affect you for the rest of your life.
It’s always best to work with an experienced divorce attorney. If you have any questions, please feel free to contact me at carol@sflg.us
But if you don’t want to work with an attorney or incur the expense here are some resources that can help you along the way:
CALIFORNIA DIVORCE OVERVIEW PROVIDED BY THE LOS ANGELES SUPERIOR COURT
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