Trial is the usual path for contested divorces. The case can be contested because you do not agree on how to divide your property and your debt, or because you do not agree about custody and visitation, child support, or spousal/partner support. You may agree on some issues but not others. If this is the case, you can write up your agreement on the issues you worked out and leave the other issues for a judge to decide.
After the case begins, you also have to provide information about your financial status to the court and your spouse. To do so, complete the Declaration of Disclosure (Family Law Form FL-140) and either the Income and Expense Declaration (Family Law Form FL-150) or the Financial Statement (Simplified Family Law Form FL-155). To decide whether to use the declaration or the financial statement, view these instructions on each form. You will also need to complete the Schedule of Assets and Debts (Family Law Form FL-142) and the Declaration Regarding Service of Declaration of Disclosure (Family Law Form FL-141), which is proof of service. All California forms can be found here.
- Disclosure: You will have to complete disclosure declarations that provide information about your income, expenses, assets and debts—and have them officially delivered to your spouse.
- Temporary orders: You or your spouse may ask for a hearing so that a judge can decide any temporary child custody, visitation, support, requests for attorney fees or restraining order disputes. Such hearings are called Order to Show Cause.
- Agreement: You and your spouse (and your mediator or lawyers, if you have any) will work on permanently resolving the issues raised in the dissolution. If you reach an agreement, you may not have to appear in court, and a judgment based on your agreement can be entered. You will have to submit a sworn statement to the court saying that the marriage is ending because of irreconcilable differences.
- Trial: If you are unable to reach an agreement, you and your spouse will appear in court for a trial in which a judge will make the decisions.
Only in a contested divorce, detailed information about income, assets, liabilities and employment of both spouses is required. This assortment of information is required to serve as the case’s discovery. Discovery is a long process of information gathering. Discovery begins by each party sending interrogatories to the other. If each spouse is represented by an attorney, the attorney will draft the interrogatories. An interrogatory is a document compiled of a set of questions about finances, assets, pensions and other financial subjects. The interrogatories can also ask the other party to produce copies of certain financial documents, in addition to the common documents required by law. This series of questions is the building block of the trial as the answers serve as the evidence that will be used at trial. Relatives, friends and persons close to the parties of the divorce may be questioned through a deposition. Obtaining this information for trial preparation will be crucial to a fair division of assets and property during the final divorce decree.
After one spouse files for divorce, an uncontested divorce can occur in one of two ways. The first is when the spouses agree on every issue: asset and liability division, the terms and conditions of child custody, support and visitation, alimony. A divorce can be said to be uncontested when the spouses do the fighting before going to court, come to an agreement, and the judge then approves it if it is fair and reasonable. The second way happens when the respondent does not respond to the petition for divorce. In addition, sometimes the respondent spouse cannot be located. In these two last instances, the court will likely rule in favor of the petitioner.
California permits what is called a Summary Dissolution of Marriage. This is also sometimes known as a simplified or special dissolution of marriage. A summary action is an inexpensive and easy way to divorce for those couples who qualify under the specific requirements and have been married for less than 5 years. Both the husband and wife must be certain they want to go this route because either can change his or her mind during the six-month waiting period between the filing and the finalization of the action. To qualify for this divorce routine, a couple must meet these requirements:
- Read the Summary Dissolution Booklet provided by the court clerk.
- Be married five or fewer years.
- Have no children born to them before or during the marriage.
- The wife must not be pregnant.
- The spouses may have no natural or adopted children.
- Neither spouse may have an interest in real estate.
- Their community property may not be worth more than $25,000, not including car and car loans.
- The community obligations are less than $5,000, not including car and car loans.
- The husband and wife have prepared a signed an agreement dealing the terms and conditions of the division of possessions and debts.
- Both spouses have signed a Joint Petition for Summary Dissolution of Marriage.
- Both spouses want to end the marriage because of serious and permanent differences.
- Both spouses agree to use the summary dissolution rather than the regular dissolution.
How is a dissolution of marriage proceeding different from a legal separation?
The effect of dissolution of marriage is that the two parties officially become unmarried whereas parties to a legal separation do not return to the unmarried status. Often couples in California choose the legal separation alternative for religious reasons or for practical reasons, such as the ability to maintain the other spouse’s health care plan (so long as the plan allows for it). The process still requires you to go through several of the formalities of a divorce, such as filing the legal paperwork for a legal separation and reaching decisions about alimony, property division, or custody.
Either party to a legal separation proceeding may later seek to dissolve the marriage by amending the original petition.
In California, an annulment is referred to as a nullity of marriage. In contrast to an action for divorce, grounds for a nullity of marriage is always based on something that pre-dates the marriage. An annulment can only happen if your marriage was not legally valid. Therefore, after the annulment, it is like your marriage never happened because it was never legal in the first place.
There are several reasons why you can ask a California court to declare your marriage void. You will have to present evidence proving one of the reasons so that the court can decide whether a nullity of your marriage is appropriate or not. Reasons for granting a nullity are:
- One of the parties to the marriage is not 18 years of age (thus, does not have the legal capability of consenting to marriage)
- The spouses are too closely related by blood (incest)
- Bigamy, meaning one spouse is already married to someone at the time of the second marriage
- Either party to the marriage was of “unsound mind”
- The consent to marriage was obtained by fraud or force
- Either party was physically incapacitated of entering into the marriage state at the time of the marriage and that incapacity remains and seems to be incurable (i.e. incapable of “consummating” the marriage).