California Divorce Process
Initiating a Divorce
In California, the divorce process begins by filing both a Summons and a Petition for Dissolution. The petition, Form FL100, along with any appropriate attachments, is a list of facts about the marriage and any requests the court will need to decide on later. For instance, if you have minor children, a “Declaration Under the Uniform Child Custody Jurisdiction and Enforcement Act” must also be filed.
A custody and visitation application detailing the proposed visitation arrangement is optional at this stage. Generally, a summons is simply an order to appear in court, but in the case of divorce, the summons requires a response within thirty days.
In addition to the explicit notice of “you have been sued,” a divorce summons also provides a listing of restraining orders that require both partners to refrain from such actions as changing beneficiaries on any policies, disposing of property, or applying for passports on behalf of their minor children without the written consent of the other spouse.
Serving Divorce Papers
When initiating a divorce, giving notice to a spouse or domestic partner must comply with legal requirements. Notice is necessary in order to keep all interested parties in a case adequately informed. The petitioner (the initiating spouse) must first file the Summons and Petition for Dissolution with the court clerk in the appropriate jurisdiction. The clerk retains the original documents and issues copies to be served on the non-petitioning spouse, also referred to as “respondent.”
Serving divorce papers, also called “service” or “service of process,” is a critical step. In order to be valid, service must adhere to stringent requirements. Formal service is required any time papers are filed in the court by one party. For initial divorce papers, personal service is required. This means that someone – the process server – must physically hand the papers to the respondent in person.
Although some might choose to hire a professional process server, others have an adult friend or a family member deliver the documents. This is only acceptable if the server has no interest in the case. When hiring a professional, the petitioning spouse may have to provide a current photo of their partner.
Proof of Service
Hiring an experienced process server to deliver divorce papers may be recommended if purposeful evasion of service is suspected or expected—in other words, if you suspect that your spouse or domestic partner may avoid being served. The server is required to fill out a Proof of Service form, which is subsequently filed with the court. Proof of service is required for the divorce process to begin.
Once the initial forms have been served, the court can be called upon to issue temporary orders in the case. Although these orders are provisional only and will be ultimately replaced by the final divorce settlement despite their temporary nature, they can be truly significant, since even temporary orders have an immediate impact on custody and visitation arrangements, child support, or spousal support.
You’ve Been Served, Now What?
When a person is served with divorce papers, the deadline to respond starts running. In California, if a response is not made within thirty days of service, the divorce will be considered uncontested, which has far-reaching consequences. In such an event, the person being served likely forfeits their legal rights by mere inaction.
The petition proposes the terms of the divorce, as envisioned by the partner who initiated the divorce proceedings. During the response process, the non-petitioning spouse has the right to request changes to the divorce terms outlined in the petition. Failure to respond means that unless the demands of the petitioner are illegal, the court will likely grant them.
In some cases, spouses may choose to come to an agreement regarding the terms of the divorce directly, outside the courthouse, rather than submitting an official response. In that case, they may submit a settlement agreement instead. The agreement must be signed and notarized, and it should address issues like child custody, property division, spousal support, and child support, when applicable. Disagreements may be solved through mediation, but might ultimately necessitate time in court.
Types of Divorce
Regardless of whether there is a response or an agreement between the divorcing spouses (or separating domestic partners), California courts classify divorce into four types:
There is no response to the divorce petition. Unless the requests of the petitioner conflict with California law, they will very likely be granted.
Default with agreement
While there is no response, the petition reflects an existing agreement between spouses.
A response is filed, but it does not contest the petitioner’s terms. The respondent disagrees with the petitioner on the terms of the divorce. It is important to note that in California the divorce itself cannot be contested. This means that anyone who desires a divorce does not require the consent of their spouse to proceed. In short, the opposing party does not have to share the desire to divorce for the divorce to be finalized.
The respondent disagrees with the petitioner on the terms of the divorce. It is important to note that in California the divorce itself cannot be contested. This means that anyone who desires a divorce does not require the consent of their spouse to proceed. In short, the opposing party does not have to share the desire to divorce for the divorce to be finalized.
What to Expect in Divorce Court
When both spouses agree on all issues, neither may need to see the inside of the courtroom during a divorce. By simply filing appropriate documentation, the marriage can be dissolved without requiring a court appearance. Even if there are disagreements, partners can choose to avoid divorce court by submitting to mediation. A mediator, unlike a judge, does not issue binding decisions; rather, he/she merely facilitates the discussion.
All divorce trials are risky: by submitting to the judge, the parties let the state decide on issues of personal importance with finality. Divorce mediation permits the parties to retain control over their own destiny. While mediation also carries significant costs, trials are notorious for being expensive. However, if you and your spouse cannot come to an agreement with the help of a mediator, you may choose to litigate in court.
Divorce Trial Roadmap
Trials are rare in divorce proceedings; however, they may occur when the divorce involves minor children, complex property division, or significant assets. A divorce trial begins well before the court session.
First, the trial date must be set with the court by submitting an appropriate request. At some point, the judge will convene with the attorneys to confirm that both parties have exchange all trial materials subject to disclosure during the pre-trial discovery phase.
Discovery is essentially when documentation, such as bank statements or medical records, may be subpoenaed directly from the bank or the health care provider by the opposing party, and must be delivered, if required by law. Oral expert testimony may be taken down in the form of written depositions. In California, and in the United States generally, the discovery process tends to be protracted (lasting longer than expected), in comparison with a relatively short trial in court, which may last less than a day.
At trial, attorneys for both spouses or a party appearing pro se (on one’s behalf) will present the issues and explain the applicable law in support of the requests presented. The lawyer’s job is to provide the judge with arguments as to why the relief requested, meaning the desired result, is permitted or favored by law under these specific circumstances. The judge reviews the arguments of both parties on all issues and decides who presented a stronger, more compelling argument. He/she then issues a final ruling.
In the courtroom, the divorcing couple must present the support for their motions, as required by law, following the procedural rules applicable in the court. Because of the complexity of these rules, along with the complexity of the substantive law, self-representation may be very difficult and demanding, even in relatively simple cases.
For example, declarations of facts can be submitted in court as written statements. They must be sworn to be true and correct, under penalty of perjury. These written statements, once admitted, serve to support the motions of a party, in addition to any statements made in person in the courtroom. As the time to speak in court for each of the parties may be limited, written declarations can work against you.
Each court has specific rules that determine the format and content of a declaration, including requirements such length in pages, font, or paper size. Written declarations usually may not exceed five or ten pages, depending on the type of motion, with additional pages occasionally permitted for expert witnesses. Exceptions are rare. Drafting the content of the declaration in a compelling way may be critical for the outcome of the case. Lack of legal training can prove to be disastrous.
The Role of an Expert Witness
Expert witnesses can play a very significant role in family disputes. Weighing in on an issue that is hotly debated by both sides, they can provide an opinion instrumental to the court’s decision to admit something as a fact. They can be called on to appraise property, or even to evaluate whether a spouse may be fit to parent. Under California law the courts must look to the best interest of the child, therefore the court may ask a therapist or a child counselor to spend time with the family members to weigh in on questions such as parenting plan.
But expert witnesses may be introduced by either spouse; an accountant or an actuary could be invited to opine on the financial issues involved. Business or property valuation experts might appear in court or be deposed. Statements from expert witnesses may be gathered and exchanged during the pretrial discovery. Generally, the parties foot the cost for their own experts, but in high-stakes divorces, expert witnesses can be a sound investment.
Finality of Divorce
In California, the divorce cannot become final unless at least six month have passed since the petition and summons were properly served. When the required minimum six-month period from the date of service has elapsed, the divorcing spouses can enter their agreement with the court. Once signed by the judge, the divorce agreement is referred to as the final decree or a divorce judgment. Both parties to the divorce receive a copy of the decree.
A divorce decree is a court order, which contains all the agreements and decisions made during the divorce proceedings. This may include a “Request to Enter Default” and the “Declaration of Default,” “Spousal Support Order,” a “Parenting Plan and Timesharing Schedule” also referred to as “Child Custody and Visitation Order,” and also, property and income declarations. Pension plan joinder or pension attachment might also be needed.
Executing the order is the next stage in the divorce process. Ending a marriage requires that all joint accounts are closed; property titles, such as vehicle titles or real estate titles, are transferred; and insurance policy beneficiaries are revised. Some property may have to be sold.
In the event that the person against whom one or more orders have been issues is noncompliant, enforcement of judgement can become a complex matter on its own, and may again necessitate the assistance of courts and legal professionals.