How Should I Begin the Divorce Process in California?

By |2017-12-28T11:14:07+00:00December 28th, 2017|Child Custody, Divorce, Divorce & Finances|0 Comments

 

  1. Verify that you are able to file for divorce in California.

There are certain residency requirements to obtain a divorce in California. For married people to get a divorce, either spouse must have lived in California for the past six months immediately preceding the filing and the county where the couple plans to file for at least three months. If you and your spouse have lived in California for six months but in different counties for at least three months, you are able to file in either county.

If you cannot meet the residency requirements to file for divorce in California, you can still file for a legal separation. Once you do meet the residency requirements, you can ask the court for a divorce by filing an “amended petition.”

There is a mandatory waiting period of six months required by California law. No couple can be divorced faster than six months from the date the person filing for divorce serves his/her spouse with a copy of the petition and summons. While the divorce cannot be finalized for six months, it is possible to file all of your paperwork and have your divorce judgment approved in the meantime.

  1. Retain a divorce lawyer in California.

Finding a competent divorce attorney is a crucial step in the divorce process, and should be one of the earliest. In fact, you should seek legal advice if you are so much as contemplating a divorce. There are several ways to find a lawyer who is right for your case, ranging from trusted personal recommendations, prepaid legal services plans, advertisements, legal aid agencies, and your local bar association.

Contact an experienced attorney to guide you through the divorce process in California, particularly if your divorce involves complex matters of property, alimony, or child support. Some family law attorneys handle a variety of legal issues, while others specialize in certain areas. Hire a lawyer that is right for you and your case.

  1. Consider which type of CA divorce to file.

Determine which type of divorce is right for you before filing. Your case can be default, contested, or uncontested. A default or uncontested divorce result when you or your spouse completed the required steps in asking the court for a divorce as petitioner, and the respondent has either chosen to complete the case via the default or uncontested process or chosen not to participate. A default situation arises when the respondent does not file a response to the request for a divorce.

If both spouses wish to participate in the divorce and agree to its terms, the divorce is uncontested. In this situation, your soon-to-be-ex-spouse filed a response to your summons and petition, and the two of you agree about dividing your assets and debt, support issues, and child custody and visitation.

On the other hand, you and your spouse might have a contested divorce case. The case will be contested because you cannot agree on all issues of the divorce and support matters. You might mutually agree on some matters but not others. If this is the case, you have the option of composing a partial agreement with your spouse and leaving the contested issues for a judge to decide. You can ask the judge to make orders about child support, custody and visitation, spousal support, and the division of property and debt. Contested divorces are far more complicated than uncontested divorces.

  1. Determine the reason for your California divorce.

California is a “no-fault” divorce state, meaning the petitioning spouse does not have to prove that the other spouse did something wrong. One spouse need only cite “irreconcilable differences” as the grounds for divorce. “Irreconcilable differences” means that you and your spouse no longer get along and do not wish to stay married. Irreconcilable differences caused the irreparable breakdown of the relationship and efforts at reconciliation are fruitless. Fault-based grounds for divorce such as infidelity are no longer applicable. You do not need to provide any other reason or prove anything to the court. There is no “guilty” party from the court’s perspective in a no-fault divorce.

  1. Collect important financial documents and information.

Gather your most recent pay stubs, bank and credit card statements, mortgage information, tax forms, property tax bills, and any other financial information you think will be relevant to your divorce proceedings. You should make copies for your records and keep them outside of the marital home.

  1. Complete the required California court forms.

To file for divorce, you have to complete the required forms. There are many forms to fill out throughout the court process. Things can get complicated, especially if you want to include orders pertaining to support, child custody, and division of property. All California courts use the same basic set of documents, but some courts have special forms that are unique to them. Contact your court clerk or consult your court’s website here to see whether you will need any special forms.

What you include on your court forms is very important and can affect the outcome of your case. Confirm with your lawyer that the information you include is accurate and complete. This is especially important if you and your spouse do not agree on aspects of the divorce.

Some of the common forms used in divorce cases are:

  • Petition – Marriage/Domestic Partnership (Form FL-100): this form initiates the divorce. It asks for the order you want the court to make, and requests basic information about your marriage.
  • Summons (Form FL-110): this form notifies your spouse that you have asked the court for a divorce and allows him/her 30 days to respond. It contains important information about the divorce process, and involves standard restraining orders that limit what you can do with your assets and property. It also prevents you and your spouse from moving out of state with your shared children.
  • Property Declaration (Form FL-160): this form is used if you require more room on your petition to list all of your property and debts.
  • Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (Form FL-105/GC-120): this form is required if you have children under the age of 18 with your spouse or domestic partner.
  • Child Custody and Visitation (Parenting Time) Application Attachment (Form FL-311): this form allows the court to issue orders about custody and visitation, and contains details about schedules for visits and doing what is best for your children.

You will also need forms to complete your preliminary disclosure. Depending on your case, you may not need all of the above forms, or you may need more than the forms listed. You must fill out and file other forms to request temporary orders for matters like child support, legal protection against domestic violence, and bill payment. You can find any forms you need here.

Be sure to have your forms reviewed. Your lawyer can help you properly complete the paperwork, prevent delays, and answer questions.

  1. File your forms with the court clerk.

Give your completed forms — originals and copies — to the court clerk. The clerk will review your paperwork for obvious errors, then stamp and return the copies to you. He/she will also collect filing fees and other associated fees. Learn how much your fees will be here. If you are low-income and cannot afford to pay the fees to file your paperwork, you can ask for a fee waiver.

  1. Serve your court forms to your spouse.

California law dictates that you must tell your spouse that you have begun the legal process for a divorce by “serving” your spouse with copies of your first set of court forms. You must find someone 18 or older — a friend, relative, county sheriff, or process server — to deliver your papers. The “server” cannot be you.

Your spouse must receive a copy of all the papers filed with the court, a blank Response – Marriage/Domestic Partnership (Form FL-120), and a blank Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (Form FL-105/GC-120) if you have children with your spouse. The papers may be served via personal service, i.e., hand-delivery, or service by mail with a Notice and Acknowledgement of Receipt (Form FL-117). The latter option is ideal if you and your spouse are cooperating in your case and he/she agrees to accept service by mail.

Ask your server to complete the Proof of Service of Summons (Form FL-115) and return it to your attention (along with the Notice and Acknowledgment of Receipt if your spouse was served by mail). You must then file these forms with the court clerk. The judge cannot make any orders in your divorce case until your spouse has been properly served.

  1. Complete your financial disclosure forms.

California law mandates that you and your spouse give each other written information about your finances — what you own, what you owe, your expenses, and your incomes. This is called “disclosure.” The purpose of disclosure is to allow for equal division of property and debts. It gives each spouse the information needed to make decisions about spousal and child support. Once you have filed your petition for divorce, you must fill out and exchange the financial disclosure paperwork. Note that you can provide your financial disclosures as early as when you file your petition, but no later than 60 days after filing.

Not only is disclosure a crucial and mandatory part of the divorce process, but it is also binding. You are swearing to the court that the information you provide is correct, and you have a continuing duty to disclose any updates to your situation or changes to your information since you and your spouse exchanged your preliminary disclosures. If you leave anything out of your paperwork — whether dishonestly or by accident — your property division can be set aside or cancelled, and you can be fined by the court. Additionally, you cannot get divorced if you do not exchange your disclosures.

 

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