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DIVORCE 101

Contemplating divorce? Below are answers about the basics:

What are the grounds for divorce or legal separation in California?
In California, there are two grounds:

1. Irreconcilable differences. There is no "proof" required to get divorced on this ground.

2. Incurable insanity (almost never used). The court requires medical proof that one spouse was insane when the divorce or legal separation petition was filed, and proof that the spouse remains incurably insane.

What are the residency requirements for divorce and legal separation?
You or your spouse must have lived in California for six months and in your county for three months before filing a petition to dissolve your marriage. There is no residency requirement to file for legal separation.

Are there rules that my spouse and I must follow during the divorce process?
Yes. There are temporary restraining orders (rules prohibiting both of you from doing certain things) that go into effect automatically when the divorce process begins. Lawyers refer to these rules as the "ATROS" – Automatic Temporary Restraining Orders. The ATROS are printed on the back of the Summons (which goes with the divorce/legal separation petition when filed).

Under the ATROS, neither of you will be allowed to take your minor children out of state without the other spouse's written permission or a court order. Nor will either of you, in most instances, be allowed to cancel or change the beneficiaries on your insurance policies or transfer property. And you will be required to notify your spouse before any out-of-the-ordinary, extraordinary expenditures are made—and be prepared to account for such expenditures to a judge.

Can I get a legal separation or an annulment instead of a divorce?
Yes. You can get a legal separation or an annulment (also called a nullity) without having lived in California for six months or in your county for three months before filing.

What's the difference between Legal Separation, Divorce and Annulment?

Dissolution (Divorce). The court terminates your marital status (declaring you no longer spouses), which then significantly affects your tax filing status, health and life insurance (if you are on your spouse's insurances as a "spouse" – that terminates and almost always cuts off your insurance benefits), among other affects. At your request, the court will also divide your property and debts, and issue orders relating to child custody, visitation, child support and spousal support, and, if necessary, a restraining order. If you are able to settle the case out of court, most of the time you can get the judge to sign off on the settlement agreement without having to appear in court.

Legal Separation. You may have religious, insurance, tax or other reasons for wanting a legal separation instead of a dissolution (divorce). If you obtain a legal separation, you and your spouse will remain married, but the court can divide your property and debts, and issue orders relating to child custody, visitation, child support and spousal support, and, if necessary, a restraining order. If you are able to settle the case out of court, most of the time you can get the judge to sign off on the settlement agreement without having to appear in court.

Annulment. If you are granted an annulment, it is as though your marriage never existed. You may be able to get an annulment if you married when you were a minor without the consent of your parents or guardian, or if certain types of fraud or deceit were involved. Note that fraud and deceit are typically very difficult to prove, and the evidentiary requirements are very high. If you want an annulment, however, you will have to appear in court for a trial.

Is there a simplified process for getting a divorce?
Yes. California has a process called summary dissolution. If you qualify for a summary dissolution, there is less paperwork to file and you will not have to appear in court. You may be eligible for summary dissolution if you and your spouse have agreed in writing to a division of your assets and debts and if the following conditions exist:

  • You have been married for five years or less.
  • You have no children from the relationship.
  • Neither of you own a home or other real estate.
  • The value of all community property amounts to less than $25,000, excluding automobiles.
  • The value of either party's separate property amounts to less than $25,000, excluding automobiles.
  • Your combined debt does not exceed $4,000, except for an auto loan.
  • Both of you waive spousal support.
  • Both spouses must agree to all of the terms of a summary dissolution. Also, either of you can cancel it for any reason before the dissolution.

After my divorce/legal separation papers are filed with the court, can I serve my spouse with the papers?
No. Copies of the Petition and Summons, and a blank Response, must be officially delivered (served) to your spouse by someone other than yourself who is over the age of 18. We use certified process servers to accomplish this task, because they know the technical rules for service, and are very good at dealing with people who try to evade service.

What happens after the divorce/legal separation papers are served?
The Summons is a paper that notifies your spouse that you are filing for a divorce or legal separation, and that he or she has 30 days in which to file the Response. In the Response, your spouse then indicates what needs to be resolved by the court. For example, he or she might object to your request for spousal support or sole custody of your children.

After the initial papers are filed, one or more of the following steps may occur:

Financial Disclosures. You will have to complete disclosure declarations that provide information about your income, expenses, assets and debts (Income and Expense Declarations and Schedules of Assets and Debts). These will be served on your spouse. The court will later require proof that your disclosures were served on your spouse. There are two phases of disclosure: The "Preliminary Declaration of Disclosure" done at the beginning of the case, and a "Final Declaration of Disclosure" done just before trial or settlement. If the case goes on for a protracted period of time, sometimes an "Updated Preliminary Declaration of Disclosure" will be necessary.

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 Request for Order ("RFO") hearings. These orders are considered "temporary" because they are made after the case has been initiated, but prior to settlement or trial.

"Stipulation and Order" Agreements. These are negotiated, short-term agreements on issues for temporary orders such as custody, visitation, support, and the appointment of a neutral expert to evaluate the value of an asset (like a business). A "Stipulation and Order" states the interim terms agreed to by you and your spouse, and is signed by all the parties, the lawyers and signed off by the judge. When the judge signs it, it becomes an official order of the court. We try to get Stipulation and Order agreements where possible, to eliminate the expense of a court hearing on the issues.

Settlement Agreements. We work on permanently resolving the issues raised in your case. If an agreement can be reached with your spouse, a comprehensive settlement agreement will be drafted, called a "Marital Settlement Agreement" (also referred to as an "MSA"). Most of the time with an MSA, you do not have to appear in court, and a judgment based on your agreement can be entered.

Trial. If you are unable to reach an agreement, we will request a trial date. When we go to trial, you and your spouse will appear in court, we will present witnesses, your testimony and all relevant evidence, and the judge will make the decisions.

Default. If your spouse does not file a Response, we may request a default and proceed to a default hearing to obtain a judgment. We will be asking the court to enter a judgment consistent with the requests in your petition.

Judgment. A judgment can be entered at any time, but you would not be divorced until at least six months after your spouse was served with the petition. The court does not automatically end your marriage when the six months have passed (you have to request it). You cannot legally remarry until you obtain a judgment even if the six months have passed. If you want to remarry, or you have some other reason for wanting to be single at the end of six months, a judge can dissolve your marriage even though some property or other issues are not yet settled.

Not all of the steps above will be necessary in every case. For example, you may simply reach an agreement and get a judgment without the need for temporary orders of any kind.