California Divorce Process
Thinking about getting a divorce? It’s important to understand the process that you’re about to begin. Preparation can make a huge difference as you navigate your divorce. For more information, do not hesitate to reach out and call our experienced divorce attorneys in Los Angeles at (310) 271-6290.
We’re here to help you through your divorce and fight for what’s best for you and your family.
- 1 Initiating the Divorce Process
- 2 Responding to Divorce Papers
- 3 Resolving Disputes in a Divorce
- 4 What If My Divorce Goes to Trial?
- 5 The Divorce Decree
Initiating the Divorce Process
California is a no-fault divorce state. In other words, one spouse doesn’t have to take the blame for the divorce. Instead, a divorce can be requested on the grounds that irreconcilable differences exist. Irreconcilable differences means that the marriage isn’t working and that you and your spouse aren’t getting along. There’s no need to point fingers or attribute blame.
There are two parties in a divorce: the petitioner and the respondent.
The petitioner is the spouse who initiates the divorce process. If you file the divorce papers, you are considered the petitioner.
Required Forms in a Los Angeles Divorce
The divorce process begins when the petitioner files the appropriate forms with a Los Angeles County Court Clerk.
Summons and Petition for Dissolution: Form FL-100 provides details and facts about the spouses, the marriage, and the request for a divorce. It should include:
- Date and duration of the marriage
- Proof of residency
- Grounds for divorce
- Child custody and visitation requests
- Child support requests
- Community and separate property of the filing spouse, and
- Requests for spousal support.
Attachments should be included, as necessary. Many times, the petitioner will need more space than is provided to (a) outline his or her wishes and (b) disclose property. This petition essentially proposes the terms for the divorce.
Declaration Under the Child Custody Jurisdiction and Enforcement Act: Form FL-105 is necessary if you are getting divorced and have young children. This form provides the court with important information about your children, including their age, where they live, who they live with, and relevant court orders (e.g., restraining orders, existing custody agreements).
The petitioning spouse also has the option of filing a child custody and visitation application at this point in time. However, this petition is not necessary to initiate the divorce process. Those details can be discussed and negotiated at a later point in time.
The Los Angeles Court Clerk will keep the original documents that are submitted by the petitioning spouse. Copies of those documents will be provided. At least one copy must be provided to the non-filing spouse.
Serving Divorce Papers
Once the petitioner has filed the divorce papers, they are legally required to notify the other spouse that a divorce has been requested. Notice ensures that all parties in a legal proceeding, including divorce, are informed and aware of the situation. Notice is typically extended by having the divorce papers served on the other spouse. The spouse who is served with divorce papers is known as the respondent.
There are strict legal requirements for serving divorce papers in Los Angeles. Working with an experienced divorce attorney will help to ensure that you comply with all applicable rules and procedures.
Personal service is required for initial divorce filings. This simply means that an adult must personally hand the divorce papers to the respondent spouse. You cannot serve the divorce papers on your own. You must rely on a professional process server, peace officer, friend, or family member. The person who serves the divorce papers must not have an interest in the case.
Proof of Service
The court will require proof that the respondent spouse has been properly served with the divorce papers. It can help to hire a professional process server to make sure that service is done correctly and that proof is obtained. The person who serves the divorce papers will have to complete and sign a Proof of Service form. This form is then filed with the court. Divorce proceedings cannot begin until Proof of Service has been filed.
Court Orders Issued After Proof of Service
Once the court has received the Proof of Service, a judge can formally issue orders that are relevant to the case. Many times, a court will issue a restraining order that prevents spouses from engaging in certain behaviors that could disrupt the divorce proceedings. For example, the order may prohibit spouses from changing beneficiaries or getting rid of any property.
Responding to Divorce Papers
The spouse who is served with divorce papers has the opportunity to respond. In California, the respondent will have 30 days from the date of service to file a response with the court. This is the non-filing spouse’s opportunity to raise any concerns they may have about the proposed divorce and offer alternative terms. For example, if the petitioning spouse has requested sole custody, the respondent spouse can reject that request and ask for joint custody.
The respondent spouse must also disclose information and details about their separate and community property. These disclosures will be critical when the spouses negotiate how their assets and debts will be divided between them.
The respondent spouse is not legally required to respond to divorce papers. However, failing to respond can have dangerous consequences. How the respondent reacts to the divorce papers will ultimately determine how the divorce will be classified.
Types of Divorces in Calfornia
There are four types of divorces in California.
Default: The respondent fails to respond to the divorce papers. In these situations, a court will generally grant the requests made by the petitioning spouse in the original divorce summons and petition.
Default With Agreement: Sometimes spouses have already determined how the terms of their divorce will be resolved before the divorce process ever begins. In these situations, the spouses will have executed a formal agreement. A default with agreement occurs when the respondent doesn’t answer the divorce papers because a pre-negotiated agreement is already in place.
Uncontested Divorce: The respondent files an answer to the divorce papers, but does not contest or disagree with any of the terms proposed by the other spouse.
Contested Divorce: The respondent files an answer to the divorce papers and disagrees with at least one of the proposed terms. Even if the spouses agree on all other aspects of the divorce, the process will be contested if there is at least one dispute.
The divorce process will take a minimum of 6 months, regardless of the type of divorce that’s involved. A judge will not even consider signing a Petition for Dissolution until 6 months after the divorce papers were served.
Resolving Disputes in a Divorce
No divorce can be finalized until all applicable terms have been resolved. In other words, a court will not sign off on our divorce until you’ve figured out how property will be divided, who gets custody of the kids and when, and whether one spouse will be receiving alimony payments after the split.
If you and your spouse can agree on all of these things, you are free to write up the terms on your own, sign them, and submit them to the court. This will save you time and money and make the process as simple as possible.
However, divorces are often filled with emotion. Spouses don’t always see eye-to-eye. In these situations, outside assistance may be necessary to resolve the terms of the divorce.
Courts in Los Angeles will always require spouses to attempt to resolve issues on their own. There are many tools available to help with these negotiations.
Alternative Dispute Resolution
Alternative Dispute Resolution (ADR) refers to tools that are available to help spouses negotiate the terms of a divorce without having to go to court.
Mediation: Mediation is often beneficial when spouses are open to communication and compromise. A neutral third party, known as a mediator, helps the spouses see the bigger picture, identify what they want out of the divorce, and move toward mutually-agreeable decisions. Mediation allows spouses to retain full control over the terms of their divorce. The mediator is simply there to help the spouses get onto the same page.
Arbitration: Arbitration is essentially a private trial. Both spouses (and their attorneys) state their cases in front of a neutral third party, known as an arbitrator. Unlike mediation, spouses give up control over the outcome of their case. The arbitrator listens to both sides and makes unilateral decisions that are binding.
Collaborative Divorce: Collaborative divorce is appropriate when spouses want to avoid going to court. In fact, if you commit to collaborative divorce, you have to waive your right to litigation. In other words, you’re committed to resolving the terms of your divorce privately with the help of collaborative divorce attorneys. In the event that a spouse does decide to litigate, both spouses have to get new attorneys and start the process from scratch.
Agreements and decisions stemming from ADR processes are submitted to the court approval. It’s possible to avoid going to court at all if you can (a) agree on the terms of your divorce privately or (b) resolve your issues using mediation or arbitration.
Going to Divorce Court
There are times when alternative dispute methods don’t work. In these situations, spouses can turn to the court for help. However, it’s important to understand that a judge will have the final say. You lose all control over the outcome of your case. Trials are also the most expensive option, so it’s best to exhaust all other avenues before deciding to take your divorce to trial.
What If My Divorce Goes to Trial?
You’ll have to request a trial if you and your spouse can’t agree on the terms of your divorce. Once the request is received, a judge will set a date for trial. However, you won’t just jump right into the trial. You’ll have the opportunity to go through the pre-trial discovery process.
Discovery ensures that both parties in a divorce have all materials that are necessary to litigate the issue. In other words, discovery gives you the right to obtain information, documents, and evidence that are relevant to your case. This can include your spouse’s bank account information, business records, or medical records. Your spouse is also entitled to any evidence or documents that may be relevant to his or her arguments. You may both also depose witnesses and preserve their statements, in the form of depositions, for trial.
The point of discovery is to make sure that both sides have disclosed and exchanged information that’s necessary to resolve the case fairly. You have a legal obligation to comply with requests for evidence and documents. There can be harsh consequences if you resist or hide information.
At trial, all contested issues in a divorce will be litigated. Spouses can be represented by attorneys or decide to represent themselves (pro se). Courts in California have complex procedural rules, which can make it difficult to represent yourself. If your divorce is going to trial, it’s best to work with an experienced attorney.
Both spouses will have the opportunity to:
- Present issues
- Introduce evidence
- Offer arguments, and
- Examine and cross-examine witnesses.
Witnesses can include family members, friends, and experts. Expert witnesses can be invaluable in a divorce case. They can provide professional and unbiased testimony on a wide range of topics, ranging from a parent’s substance abuse issues to the value of community property.
A judge listens to all arguments, evidence, and testimony offered by the attorneys for both spouses. He or she will consider what they’ve heard and issue final decisions, based on what is fair and in the best interest of the parties.
The Divorce Decree
A divorce can be finalized once all issues have been settled and the 6 month waiting period has been satisfied. At this point in time, the divorce agreement can be submitted to the court. A judge will review the documents and make sure that all agreements are lawful. If everything is in order, the judge will sign the agreement. This will become known as either the divorce judgment or the final decree.
The divorce judgment is a court order. It contains all of the terms of the split. Both spouses are legally required to comply with the terms. Violating the terms of the divorce is a violation of a court order. This can have serious consequences. However, it is possible to petition the court to modify orders that are relevant to your divorce.
Divorce can be complicated. It’s important for you to have an advocate by your side during this difficult time in your life. Contact the family law attorneys at Berenji & Associates to schedule a free consultation. Our experienced legal team will review your case, explain your rights, and help you fight for what you want. Call our office today to learn more.