Overview of the Divorce Process:
7 Key Answers to Common Questions
1. What are the grounds for divorce in California? This process to terminate your marriage is called a Dissolution in California. California is a no-fault state which means that the Court will not examine which party is at fault in deciding issues such as the division of community property and support. There are residency requirements. Either you or your spouse must have lived in California for the last 6 months and the county where you plan to file the divorce for the last 3 months. If you and your spouse have lived in California for at least 6 months but in different counties for at least 3 months, you can file in either county.
2. How do I start the dissolution process? A Petition and Summons must be properly served on your spouse. The Petition and Summons must first be filed with the Court before you can serve it upon the other spouse. You are now designated the Petitioner in the filed case and your spouse is the Respondent. Unless you qualify for a waiver of the fee, there is a filing fee. If there are children, you also have to serve and file a UCCJEA declaration regarding the children of the marriage.
3. What do I do if I am served with a Petition and Summons? As the Respondent you have 30 days to file and serve a Response. Unless you qualify for a fee waiver, you must also pay the filing fee. If you do not file and serve in time your Response, the Petitioner may apply for a default judgment.
4. Are there any other consequences of being served with a Petition and Summons? Yes. First, the date of service starts the period for the earliest time when you can get a Judgment of Dissolution. The marital status of the parties cannot be terminated any earlier than 6 months after the date when the Petition and Summons were served. Second, the Summons has automatic restraining orders (ATROS) which are applicable to both parties. If either party breaks one of these orders, they may be held in contempt of Court.These ATROS provide that both parties (1) may not remove either of the children of the marriage from the State of California without obtaining the written consent from the other, or a Court order, (2) may not cash, borrow against, cancel, transfer, dispose of, or change the beneficiary of any insurance or other coverage held for either’s benefit, (3) may not transfer, encumber, conceal, or in any way dispose of any real or personal property without the written consent of the other or a Court order, except in the usual course of business or for the necessities of life.If either party wishes to make any extraordinary expenditure, they must notify the other at least five days before they incur their expense, and in the event that they make any such expenditure, they must be prepared to account to the Court. Parties are not, however, precluded from using community property to pay reasonable attorney fees in order to retain legal counsel in this action.
5. What happens after the Petition and Response is served and filed? Often the parties will attempt to agree on issues such as temporary custody and visitation and temporary child and spousal support. Agreements on these matters are often incorporated into a written Stipulation and Order and filed with the Court. If the parties cannot agree on these issues they may file an Order to Show Cause and request the Court to decide these issues for them. If custody and visitation is in dispute, the Court will first send them to Conciliation Court where a trained mediator tries to help the parties agree on a parenting plan.If the parties still cannot agree, the Court will make a temporary custody and visitation order that is in the best interests of the children. The temporary order will continue until the parties can reach a different agreement or until custody and visitation is resolved after a trial.In some instances, the parties may participate in a child custody evaluation with an expert trusted by the courts to determine the best parenting plan. High conflict child custody cases benefit from the assistance of a neutral expert providing a detailed report to the court.
6. What happens if the parties can agree on all issues? If the parties can agree on all issues in the dissolution, that agreement can be incorporated into a Marital Settlement Agreement or a Stipulated Judgment. A court appearance is not usually necessary in this situation. For this order to be submitted to the court, both parties must have paid their initial filing fee. The Court will require that each party make full disclosure of all their assets and liabilities to the other party and also disclose any business investments and opportunities. Each party is required by California law to file a preliminary and final “declaration of disclosure” with the Court that they have served an Income and Expense Declaration and Schedule of Assets and Debts on their spouses. The final declaration can be waived by the written agreement of the parties. The disclosures will list each spouses community property assets and debts and separate property.Failure to properly list assets and liabilities in these disclosure forms can result in the need to return to court at a later time once this oversight or concealment is determined. Growth in the hidden or forgotten asset can become an additional value that the judge would divide between the parties.Most disputes involve the extent and valuation of community property assets. If a spouse tries to hide assets, an experienced family law attorney can employ various discovery tools and force the other side or a third party to turn over financial records.In complicated cases, it may be necessary to retain the services of experts such as forensic accountants, appraisers and pension specialists.
7. Do all community assets and debts have to be divided equally? As a general rule, yes. There are exceptions such as personal injury awards. This equal division is usually accomplished by dividing the assets and debts equally or by awarding an equal value of assets and debts to each party.
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