Do I Have to Appear In Court For My Divorce?

Hossein Berenji, Oct 25, 2019

California is a “no-fault” divorce state. Unless you and your spouse or partner need a judge to settle disagreements about child support, alimony, child custody, or division of property, you usually will not have to go to court in person to get a divorce in California. Here’s what you need to know.

The Circumstances of Your Divorce Will Determine If You Have to Go to Court

That depends on your situation. Generally, if you and your partner can agree on how you’ll divide your property and debts, who will have custody of any children and who will pay alimony or child support, you can have that written out and present it to the judge. He or she will almost always approve it and can grant the divorce without either partner being present. But if there are disagreements over any of these issues that you can’t settle on your own, you usually will need to go to court.

An experienced divorce lawyer can tell you what your options are and negotiate with your partner’s attorney. Your lawyer can of course also represent you before the judge if it comes to that, and will usually have a good idea of what the judge is likely to decide. In some cases, a third-party mediator who doesn’t represent either side may be able to help you and your partner reach an agreement and avoid having to go to court. Although attorneys’ fees in divorce aren’t set by law, they will usually increase if your lawyer needs to go to court. You and your partner can help keep your costs down by agreeing on as many issues as possible.

Changes to California Divorce Law Limit the Need to Go to Court

Until 1970, California’s divorce law required spouses to work against each other. At least one spouse had to prove to a judge that there were “grounds” (a legal reason) for a divorce. So, going to court was almost always necessary. The law required one spouse to show that the other did something wrong, such as having an affair (adultery) or committing acts of domestic violence.

If the other spouse fought the divorce and convinced the judge that either the bad conduct never occurred or that both spouses were at fault, the divorce could be denied. Just because one spouse wanted to split up wasn’t enough – the couple had to stay married. Of course, this prevented the spouses from re-marrying.

Even if both spouses wanted out, one still had to prove grounds existed even when there really were none. This meant that a spouse often exaggerated or even lied to the court.

California’s No-Fault Divorce Law

For almost fifty years, divorce in California has been “no-fault.” All U.S. States, Washington, D.C., and Puerto Rico now have similar laws. Divorce laws in California apply to both heterosexual and same-sex relationships and to both married couples and those in domestic partnerships.

Today, either partner can get a divorce without having the other on board. Or, partners can simply agree that they need to go their separate ways. Nobody has to prove in court that his or her partner did something that caused the marriage to go downhill.

Even when you and your partner aren’t opposed to divorce, it’s still a legal proceeding. You or your partner (called “the petitioner”) must still file a divorce petition at the county courthouse. In addition to asking for the divorce, this document states when the partners got together legally.

To prevent people from out of state coming to California to get a “quickie” divorce, at least one of the spouses must have lived in California for at least six months and three months in the county where the petition is filed.  The petition is then served on the other partner (called “the respondent”). The respondent can file an answer or just let it go – that’s his or her choice.

There is a six month waiting period, which starts when the respondent gets the petition or when he or she answers, whichever comes first. To make the divorce final, another filing is required after the six months have passed. This is different from the six-month residency requirement mentioned earlier.

The Importance of Good Legal Advice

While you and your partner may not be at odds over the divorce itself, some disputes just can’t be settled by agreement. Even under the no-fault law, this makes some divorces in California are complicated, especially if you and your partner have kids or a lot of property or debt. It is always a good idea to talk to an experienced Los Angeles divorce attorney to learn what to expect will happen next once your case is filed.