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According to the National Center for Health Statistics, the divorce rate in the U.S. over the past 20 years (from 2000 to 2020) is 2.3 divorces per 1000 people, which means the United States has the 6th highest rate of divorce worldwide, with Russia taking first place with 4.8 divorces per 1000 people. If you are currently facing a divorce or have realized that your marriage is not salvageable, it is vital to know the proper steps to take and the crucial role an attorney can play in helping you protect your interests so you can reach a favorable resolution.
What Are the Steps to Getting a Divorce in California?
The first step to getting a divorce in California is to make sure you or your spouse fulfill the residency requirements – you or your spouse must have lived in the state of California for at least six months prior to filing for divorce and at least three months in your current county. Then, you can begin preparing the required paperwork. Divorces in California start with two specific forms, called Summons and Petition. If you have children, there are additional forms to complete.
A Summons is a critical document because it serves as a notice to your spouse informing them that you have filed for divorce and giving them a deadline of 30 days to respond and state whether they agree with the terms of the divorce or not. The Summon also establishes that both parties are now subject to certain laws that prohibit them from doing things like taking children out of the state of California, selling or disposing of any property, and canceling or changing any health insurance policies while the divorce is pending.
The Petition is also important and required to start a divorce because it lists key information for the judge to initiate the divorce. It also contains the petitioner’s position on divorce issues, including child custody and support, property division, spousal support, and who should pay for court costs and attorney fees, for example.
After filling out all required forms and paying any applicable fees, take them to your county’s family law clerk’s office to file. Be sure to bring in the original forms as well as two additional copies. After that, the next step is to serve the divorce papers to your spouse, which means delivering them in person. You may not serve papers yourself. Any adult over the age of 18 can serve papers on your behalf, or you may also use the Sheriff’s office or a licensed process server to take care of this step. Once your spouse has been served, they will have 30 days to respond.
In California, there is a mandatory waiting period of six months and one day after the divorce papers are served to your spouse. This means your divorce can only be finalized after the mandatory waiting period. In some cases, you may need to ask the court for temporary orders to address child custody and support, visitation, and other essential aspects. Once granted, temporary orders remain in effect until a final judgment is made.
Next, you and your spouse will take steps to prepare for a hearing, during which the judge will hear both sides and make decisions that will result in final divorce orders. Before the hearing, you and your spouse can come to an agreement and present your agreement to the court for approval, which would eliminate the need for a trial. Alternatively, you may initiate the discovery phase, an effective step that allows you to prepare for trial and obtain important information from your spouse. After your case goes to trial, final divorce orders are issued. You may have a significant waiting period before receiving your filed Judgment with a judge’s signature back from the court, and your divorce is only final after you receive your divorce decree.
Is California a No-Fault Divorce State?
California is a no-fault divorce state, meaning you may get a divorce due to irreconcilable differences, and neither you nor your spouse needs to be blamed for the end of the relationship to get divorced. This also means California is one of many states where an at-fault divorce is not an option.
At-fault divorces require one spouse to prove that the other spouse has done something that led to the end of the marriage, such as cheating, engaging in domestic violence, or irresponsibly selling or disposing of marital property. With the no-fault divorce statute, you do not need to prove any wrongdoing to end your marriage, and only one person needs to petition for divorce, even if the other spouse does not agree. The no-fault divorce statute aims to make the divorce process more manageable by eliminating the need for one spouse to produce evidence against the other. In addition, it does not allow your spouse to delay your divorce by challenging your grounds for divorce.
What Is the Difference Between a Contested and an Uncontested Divorce?
When getting a divorce, you and your spouse have the option of making your own decisions and coming up with an agreement about all of the critical issues of the divorce (such as child custody and support, property division, and parenting schedules), than simply presenting your agreement to a judge for approval. This process is referred to as an uncontested divorce, and it takes place when you and your spouse both agree that the marriage is over and wish to resolve your issues amicably.
On the other hand, a contested divorce occurs when either side cannot come to an agreement about some or all aspects of the divorce. After receiving the Summons, your spouse has 30 days to send a response. If your spouse’s response states that they are not in agreement about any aspect of the divorce, your divorce is now contested. If you can’t work out a mutual agreement, your case will go to trial, and it will be up to a judge to make those decisions on your behalf. Note that your divorce can start as a contested divorce, but if you and your spouse later reach an agreement, you may present your finalized written agreement to the judge and avoid going to trial.
Is There Legal Separation in California?
California allows couples to pursue a legal separation instead of a divorce. A legal separation allows spouses to live apart and have separate lives while still having certain orders in places, such as child support and visitation. In addition, legal separation is not definitive, and if you decide to reconcile with your spouse, later on, you can go back to living as a married couple. It is also important to understand that you may not marry someone else while separated as you are still technically married and must get a divorce before you are allowed to marry another person.
Some couples choose separation before getting a divorce if they are unsure about whether they want to end their marriage or not. Other reasons for getting a legal separation may be religious or financial reasons, the ability to retain certain benefits such as receiving health insurance through your spouse’s employer, tax benefits, or other government benefits, as well as not meeting the California residency requirements for a divorce. It may be a good idea to discuss the advantages and disadvantages of legal separation versus divorce with a family law attorney so you can determine the best choice for your situation.
How Are Marital Assets Divided in a California Divorce?
In California, both marital assets and debts are divided equally between you and your spouse. Therefore, it is important to differentiate what constitutes marital (community) property and what is considered separate property. Community property must be divided between you and your spouse, but each side gets to keep their separate property.
Community property is any assets earned or purchased while you were married, as well as any debts accrued in the course of the marriage. Assets acquired through a gift or inheritance are not counted as community property. In contrast, separate property is anything you or your spouse earned or owned before getting married, including any debts. In addition, anything earned from or purchased with separate property remains separate. In a divorce, you and your spouse may work together to produce an agreement about how property should be divided and present the agreement to a judge for approval. If you cannot agree, the judge may make those decisions on your behalf.
Should I Try Mediation for My Divorce Case?
If both you and your spouse wish to find a way to resolve your differences and end your marriage on amicable terms without a court battle, mediation may be a feasible alternative. Divorce mediation relies on a neutral party – a mediator – to facilitate communications between both parties, and help the spouses come to an agreement on all aspects of their divorce.
Mediation meetings happen outside the courtroom, and each side may choose whether they want to have an attorney present. Mediation focuses on reaching a resolution through working together rather than through conflict. Mediation tends to be less stressful and less costly than a litigated divorce and can also take less time. If mediation is successful, a written agreement is produced and signed, and it becomes legally binding at that stage. If no agreement is reached, the parties are still free to seek a litigated divorce.
Why Should I Hire a San Diego Divorce Attorney for My Case?
Divorces are not only emotionally draining but also require each side to make a series of crucial decisions and comply with all court procedures and deadlines. An attorney can help you avoid getting overwhelmed with the process and remove all guesswork and obstacles, helping you turn the page on this difficult chapter of your life in the most efficient way possible. If you are planning to get a divorce or have questions, the attorneys at Khosroabadi & Hill are ready to help. Call our office in San Diego at 858-240-2093 to see how we can help you.