Getting Through The Legal Process of Divorce

This provides a summary of the California divorce filing procedure and an overview of the divorce documents that are filed with the family law or domestic relations clerk.  This summary isn’t intended to be an exact step-by-step guide for people “do it yourself divorce” filers, because of the fact that many cases are unique and the overview presented here is often not the sole process of getting an uncontested divorce from California.

In California, the term “irreconcilable differences” describes No-Fault divorce.  This means that “irreconcilable differences have generated an irremediable breakdown of the marriage”.

In California, as in other nations, divorces may be contested or uncontested, however uncontested, No-Fault divorces move through the courts quickly and less expensively.  California is a community property state.  This means that assets and liabilities are community house (half is 1 spouse, half the other person, such as the marital residence acquired during the marriage) or different property (one spouse’s independent, like gifts and inheritances).

Filing From the Courts

In California, the party who files is called the Petitioner; the party who answers is called the Respondent.  The divorce is filed in the Superior Court, generally the county of residence of the couple.  1 spouse or the other must have lived in California and in the county where the divorce is being filed for at least three months.  Moreover, is a waiting period after the service of process or an Answer by the Respondent prior to the divorce becomes final.

Most of the forms used in divorce in California are those adopted by the California Judicial Council, and their use is mandatory.  County courts have forms that may be used in compliance with local rules.

California permits what is known as a Summary Dissolution of Marriage.  Also referred to as a simplified or special dissolution of marriage, a summary action is an affordable and easy method to divorce for all those couples that qualify, but both the husband and wife ought to be sure they want to go this route because either can alter their mind throughout the six-month waiting period between the filing and the finalization of the action.  A couple must fulfill certain prerequisites to qualify for this particular divorce pattern.

The procedural requirements for an uncontested divorce include California statutes, the California Rules of Court, and the local rules of court.  Based on the situation, the couple will document a variety of court documents.  These include a real estate settlement agreement dividing community property (the marital estate) and establishing the terms and conditions of child care and spousal support.  However, the fundamental steps to get an uncontested divorce are as follows:

File a petition asking the court to grant a divorce lawyer. 

Notify of the other partner a divorce was filed.  This is known as the Summons- Family Law, and it features a response form.

Exchange Preliminary Declarations of Disclosure, or if the other partner Doesn’t collaborate the Petition needs to function a Preliminary Declaration of Disclosure such as a Schedule of Assets and Debts and an Income and Expense Declaration.  The Final Declaration of Disclosure could be waived by both parties, however, the Preliminary cannot be waived.

If the two parties agree a Marital Settlement Agreement is subsequently prepared which outlines the agreement of the parties concerning child custody/visitation/support if applicable, spousal assistance if applicable, and division of property and debts.  If the partner doesn’t cooperate and doesn’t react to the Petition, then a Request to Enter Default has to be filed together with a Request for a Default Hearing.

Submit the Marital Settlement Agreement and other final paperwork to the Court for processing.  If the two parties agree then no Court appearance will be required.  If there is a default hearing involved an Income and Expense Declaration and a Property Declaration must be submitted to the Court.  To the Clerk, a Judgment must be submitted at the hearing before the case is heard by the Judge.  If the Judge agrees with the suggested Judgment it will be signed by him which will finalize the divorce.

In all cases, the divorce begins with the Petition, the Summons-Family Law, Response and any regional forms which may be required by the county court.  The response, the Summons-Family Law, Even the Petition and some other local forms that may be required are normally served by a process server and may not be hand-delivered to another spouse by the Petitioner because he or she is a party to the action.  This is called the Service of Process.  Other forms may be sent to the other party by first-class mail.

How The Method Evolves

After one partner files, uncontested divorces evolve in one of two manners.

The first is when the spouses agree on each issue: asset and liability division, the terms and conditions of child custody, support and visitation, alimony.  A divorce can be said to be uncontested prior to going to court, come to an agreement when the spouses do the battling, if it is reasonable and just, and it is subsequently approved by the judge.

The second way happens when the Respondent does not reply to the petition for divorce.  In addition, sometimes the responding spouse cannot be located.  Divorcing spouses agree that the responding spouse will default option.  This isn’t collusion. Divorce profits through the courtroom with their agreement.

When a couple agrees on all problems, or when either default, the court could issue Judgment either by Declaration with no appearance in Court, or a Default Judgment after a Court hearing.  A Court appearance will not be required if the two parties agree, as stated previously.  After a summary action, an action coursing along this default route is most likely the easiest route to a divorce.

The trajectory of a contested divorce isn’t easy to predict because it’s a lawsuit, and it’s adversarial.  A divorce begins with the filing procedure, then one of the parties will ask an Order to Show Cause Hearing, and the judge will rule on support, child custody and restraining orders.

The parties subsequently may engage in Discovery, which becomes a lot more invasive and more complicated than the voluntary disclosures made in an uncontested action.  In both activities, the Declaration of Disclosure can be utilized as well as the disclosure of expenses and incomes.

After Discovery, the parties and the attorneys from Hills Law Group try to settle the situation through discussions.  If they reach an accord, among the lawyers prepares an MSA according to California’s community land divorce legislation.  This is a contract.  But if this fails, the parties proceed to trial.

Clearly, if the two parties may agree on all or most of the problems, they can save a lot of time and money by proceeding with an Uncontested Divorce.

Difference Between Divorce and Legal Separation

When a few want to end their union, there are three different ways to do so: nullity, dissolution, and legal separation.  They can be a bit confusing at first, so allow me to give you a concise explanation of what makes these three processes differ from one another.

First, let us discuss nullity.  You may already be familiar with what this is since nullity is really what was called annulment.  There is A nullity a declaration that the marriage never existed.  It declares that there was never a union in the first place, that nothing had come into being.  You become single again if you buy a nullity and you can remarry after the hearing.  This is most likely good news for those who have funds right?

Dissolution (which is really just another term for divorce), on the other hand, admits that a connection does not exist at the end of the dissolution.  Your standing as one individual is revived.  But unlike a nullity, which allows you to marry after the hearing, then until you’re permitted to marry you will have to wait a period of time.

Now let’s talk about California’s legal separation, which is the principal topic of the report.  Orders regarding support, kids, and property are created, but the two parties remain lawfully joined while living.  This would be ideal for people who can’t stand living under the exact same roof anymore, but whose religions do not allow divorce.  If you fight like cats and dogs but divorce is against your morals, then a legal break would also be helpful for you.

Another reason to decide on a California divorce separation instead of dissolution is monetary.  A few benefits, such as those eligible for war veterans and people that have security, will be missing when the union is dissolved.  These benefits stay for those who are legally separated, which is exactly why this procedure is preferred by some couples to divorce.

The requirements needed for a California divorce separation are different from those required to get a dissolution. A 6-month residency in the nation is required if you file for divorce in California.  If you file for legal separation, then no period of residency is needed.

Another difference is that in a divorce, California law requires a 6-month waiting period after service of the Summons until it becomes final.  A legal separation doesn’t have a time limit.