Divorce in California: The Legal Process, Your Rights, and What to Expect

By Debra Schoenberg and Jennifer Knops

Providing accurate and objective information to help make the right decisions during a divorce in California, this guide provides answers to 360 queries such as What is the mediation process in California and is it required? How quickly can one get a divorce? Who decides who gets the cars, the pets, and the house? What actions might influence child custody? How are bills divided and paid during the divorce? How much will a divorce cost? and Will a spouse have to pay some or all attorney fees? Structured in a question-and-answer format, this divorce handbook provides clear and concise responses to help build confidence and give the peace of mind needed to meet the challenges of a divorce proceeding.

• Language: English
• Publisher: Addicus Books
• Release date: Jun 1, 2013
• ISBN: 9781938803857

Book preview

Authors

Introduction

Ientered law school in the fall of 1982, intending to dedicate my career to representing the disenfranchised. The summer after my first year of law school, I accepted a clerkship with a small boutique matrimonial law firm in upstate New York. The humanity and intellectual challenges that I dealt with during that clerkship brought me tremendous joy and fulfillment, and I knew by summer’s end that I would spend my career in family law.

As of this book’s publication, I am in my twenty-eighth year of family law practice. I have handled more than 14,000 family law cases, as either first chair or supervising attorney. As I often tell new associates, I am as excited about my work today as I was the day I was admitted to the Bar. I have spent almost three decades watching the human condition unfold before my very eyes, and in those years I have had the honor of representing countless individuals whose strength and courage have continued to inspire me. Throughout, I have trained many young lawyers, from whom I have also learned invaluable lessons, and who have honored my work by becoming distinguished, exceptional attorneys in their own rights.

My young children motivate me to do my best work; I want them to grow up in a world of emotionally healthy and thriving families, as each family defines that for themselves. My children are well aware of the enormous joy and satisfaction this work brings me, as I often remind them how rewarding life is by doing the work I was meant to do in service of others.

I am blessed to have found a career in which I can make a meaningful contribution to the lives of my clients. I ask them to trust me and permit me to guide them through the darkness of their divorce. Together, we search for the light at the end of the tunnel. It is truly an honor to play an important role in the lives of my clients during such a critical time for them.

I am excited to embark upon my next twenty years of practice and continue to witness our country’s rapidly changing definition of family. I look forward to achieving the best results for those who entrust me. I believe that when we, as family law attorneys, practice our craft with integrity and adhere to the highest levels of professionalism, our clients can retain their dignity and humanity through what can be a very difficult and painful process.

I have long maintained that information is power. I hope this book gives readers a useful overview of divorce law, so that they can begin to make sound choices as they venture down this path of uncertainty.

—Debra R. Schoenberg, Esq.

1

Understanding the Divorce Process

The process of ending a marriage or registered domestic partnership often creates a feeling of utter chaos and a sense of despair. Understanding the process for dissolving such relationships, which is functionally identical for both same and opposite sex, can bring some predictability and, in turn, a sense of comfort. The outcome of many aspects of your divorce may be unknown, increasing your fear and anxiety. But there is one part of your dissolution that does have some measure of predictability, and that is the dissolution process itself.

Most divorces proceed in a step-by-step manner. Despite the uniqueness of your divorce, you can generally count on one phase of the dissolution process following the next. It is also helpful to understand that obtaining a divorce is a process that unfolds over time. Just realizing you are completing stages and moving forward with your divorce can reassure you that the process will eventually come to a conclusion.

It is also important to note at the outset that the emotions of the parties, more than the applicable law, drive much of the divorce process. You are strongly encouraged to apply your intellect and reasoning to the decisions that you make as you proceed, and to refrain from letting the hurt and pain that may follow relationship endings to guide you. Leading with common sense will undoubtedly expedite resolution of your case, and you will look back on this experience as one that you handled with grace.

Developing a basic understanding of the dissolution process will lower your anxiety when your attorney speaks of depositions, motions, and going to trial. The object of this book is to provide you with that understanding, to reduce your frustration with the length of the process, and to increase your awareness of the steps necessary to conclude your matter. These pages will support you in preparing for what comes next. Most importantly, understanding the dissolution process will make your experience easier.

1.1 What steps are taken during the divorce process?

The divorce process in California typically involves the following steps.

If you are initiating the divorce:

Obtain a referral for a lawyer.

Schedule an appointment with an attorney.

Prepare questions and gather necessary documents for an initial consultation.

Meet for an initial consultation with an attorney.

Pay the attorney a retainer and sign a retainer agreement.

Provide requested information and documents to your attorney.

Take other actions as advised by your attorney, such as opening or closing financial accounts.

Attorney prepares the summons and petition for dissolution for your review and signature.

Attorney files the summons and petition with the clerk of the court.

Attorney serves the summons and petition on the respondent.

If interim relief (such as temporary child support, spousal support, or attorney fees) is appropriate, attorney prepares motion papers for your review and signature, files with the court, obtains court date, and serves pleadings on respondent.

If you have been served with divorce papers:

Obtain a referral for a lawyer.

Schedule an appointment with an attorney.

Prepare questions and gather necessary documents for an initial consultation.

Meet for an initial consultation with an attorney.

Pay the attorney a retainer and sign a retainer agreement.

Provide requested information and documents to your attorney.

Take other actions as advised by your attorney, such as opening or closing financial accounts.

Attorney prepares a response to the summons and petition for your review and signature.

Attorney files your response with the clerk of the court within thirty days of service of the petition and summons on you.

If you are served with requests for interim relief, your attorney prepares your response to these moving papers.

After an action has been commenced and the response filed:

With the assistance of your attorney, you need to prepare financial disclosure documents (income and expense declaration and preliminary schedule of assets and debts).

Negotiations begin regarding temporary custody and visitation, child and spousal support, payment of community obligations, and attorney fees.

Attorney prepares moving papers for any requests for temporary relief not previously made.

If there are minor children, the parties comply with any local rules or court orders to attend parent orientation and to participate in mandatory mediation.

Court holds hearing(s) held on requests for temporary relief.

Either the parties reach an agreement or the court issues temporary orders.

Temporary order is prepared by one attorney, approved as to form by other attorney, and submitted to the judge for signature.

Both sides conduct discovery—the process designed to obtain information regarding all relevant facts, and commence the process to exchange valuations of all assets, including expert opinions if needed.

You confer with your attorney to review facts, identify issues, assess strengths and weaknesses of case, review strategy, and develop a settlement proposal.

Spouses, with the support of their attorneys, attempt to reach agreement through written proposals, mediation, settlement conferences, or other forms of negotiation.

If you reach an agreement on all issues, then:

One attorney prepares marital settlement agreement and necessary judgment paperwork.

Both parties and their attorneys sign agreement and all necessary paperwork.

Judgment paperwork is filed with the court.

Either the parties waive the court date or the court holds a brief, final hearing.

Judgment is entered and you will be divorced.

Your attorney completes necessary orders and supervises the property transfer until all agreed terms are satisfied.

If you are unable to reach an agreement on all issues, then:

Your attorney completes all necessary discovery to bring the case to its trial-ready point.

Your attorney files an at-issue memorandum to obtain trial dates.

If agreement has been reached on any issues, your attorney prepares a stipulation on those issues. All other issues are set for trial.

You work with your attorney to prepare your case for trial.

Your attorney prepares witnesses, trial exhibits, legal research on contested issues, pretrial motions, trial briefs, direct and cross-examination of witnesses, opening statements, witness subpoenas, and your closing argument.

You meet with your attorney for final trial preparation.

Trial is held.

Your attorney requests a statement of decision.

The judge issues a tentative statement of decision and directs the statement to be prepared.

Both sides make any objections they have to the statement of decision. If appropriate, the court sets the matter for hearing.

The judge signs the final statement of decision and judgment of dissolution, dissolving your marriage or domestic partnership.

The attorneys supervise any property transfers until all agreed terms are satisfied.

Your post-trial rights are discussed in the section on appeals.

1.2 Must I have an attorney to get a divorce in California?

You are not required to have an attorney to obtain a divorce in California. However, it is very important to have the adequate assistance of counsel in dividing your marital estate. This is particularly true for clients with significant individual and marital investments and debt, including:

Investment assets, stock portfolios, and/or trusts

Pensions and retirement accounts

Stock options

Family-owned businesses and closely held corporations

Significant business or corporate interests

Professional practice interests, inventory, and investments

High-value homes

Multiple real properties

IRS tax debt

Credit card debt

If you are considering proceeding without an attorney, contact the family court in which the action will be pending to determine whether there are any clinics available to assist you. If you proceed without an attorney, you will be referred to as being in pro per, a Latin term meaning for oneself.

1.3 What is my first step?

Find a law firm that handles divorces as a regular part of its law practice. The best recommendations come from people who have knowledge of a lawyer’s experience and reputation.

Even if you are not ready to file for divorce, call to schedule an appointment right away to obtain information about protecting yourself and your children. Even if you are not planning to file for divorce, your spouse might be.

Ask what documents you should take to your initial consultation. Make a list of your questions to bring to your first meeting. Start making plans for how you will pay your attorney to begin work on your case.

1.4 Is California a no-fault state or do I need grounds for a divorce?

California, like most states, is a no-fault divorce state. This means that neither you nor your spouse are required to prove that the other is at fault in order to be granted a divorce. Factors such as infidelity or cruelty are not necessary or appropriate to receive a divorce in California. The court will not accept evidence of fault. You must prove only irreconcilable differences to have your marriage or domestic partnership dissolved. Under an extremely rare circumstance, such as the disappearance of your spouse, you may plead willful abandonment as grounds for divorce.

The testimony of either you or your spouse, stating that irreconcilable differences necessitate the dissolution, is usually sufficient evidence for the court to rule that the marriage should be dissolved.

1.5 Do I have to get divorced in the same state I married in?

No. Regardless of where you were married, you may seek a divorce in California if the jurisdictional requirements of residency and venue, set forth in the next answer, are met.

1.6 How long do I have to have lived in California to get a divorce in the state?

Either you or your spouse must have been a resident of California for at least six months to meet the residency requirement for a divorce in California. If neither party meets the residency requirement, other legal options are available for your protection, such as a legal separation, a petition for a custody and support order, or a protection order.

However, the law presently provides that registered domestic partners who have moved from California may still have their partnership dissolved in this state, even if neither party resides in this state.

1.7 My spouse has told me she will never give me a divorce. Can I get one in California anyway?

Yes. California does not require that your spouse agree to a divorce. If your spouse threatens to withhold a divorce, know that in California this is an idle threat without any basis in the law.

Under California law, to obtain a divorce, you need only prove irreconcilable differences. In short, it is not necessary to have your spouse agree to the divorce, or to allege the specific difficulties that arose during the marriage, to obtain a divorce in California. In fact, neither party is permitted to raise those difficulties in court.

1.8 Can I divorce my spouse in California if he or she lives in another state?

Provided you have met the six-month residency requirements for living in California, you can file for divorce here, even if your spouse lives in another state.

Discuss with your attorney the facts that you will need to prove, and the necessary steps, for you to have given your spouse proper notice. This will ensure that the court has jurisdiction over your spouse. Your attorney can counsel you on whether or not you can proceed with the divorce.

1.9 How can I divorce my spouse when I don’t know where this person lives now?

California law allows you to proceed with a divorce even if you do not know your spouse’s current address. First, attempt to locate your spouse. Contact family members, friends, former coworkers, or anyone else who might know your spouse’s whereabouts. Utilize resources on the Internet that are designed to help locate people.

Let your attorney know of all of the efforts you have made to attempt to find your spouse. Inform your lawyer of your spouse’s last known address, as well as any work address or other address where this person may be found. Once your attorney attempts to give notice to your spouse without success, you can publish your notice in a newspaper, and ask the court to find this notice proper and let you proceed with the divorce.

1.10 I just moved to a different county. Do I have to file in the county where my spouse lives?

You may file your divorce petition either in the county where you reside or in the county where your spouse or domestic partner resides, provided that either of you satisfies the three-month county residency requirement.

1.11 I immigrated to California. Will my immigration status stop me from getting a divorce?

If you meet the residency requirements for divorce in California, you can get a divorce here notwithstanding your immigration status. Talk to your immigration lawyer about the likelihood that your divorce will lead to immigration challenges.

If you are a victim of domestic violence, tell your lawyer. You may be eligible for a change in your immigration status under the federal Violence Against Women Act.

1.12 I want to get divorced in my Indian tribal court. What do I need to know?

Each tribal court has its own laws governing divorce. Requirements for residency, grounds for divorce, and the laws regarding property, spousal support, and children can vary substantially from state law. Some tribes have very different laws governing the grounds for your divorce, removal of children from the home, and cohabitation.

Contact an attorney who is knowledgeable about the law in your tribal court for legal advice on pursuing a divorce in your tribal court, or on the requirements for recording a divorce obtained in state court with the clerk of the tribal court.

1.13 Is there a waiting period for a divorce in California?

Yes. California has a mandatory waiting period of six months plus one day. This waiting period begins on the day that the respondent is determined to have been given legal notice of the action for dissolution. This date is either:

the day that the sheriff or another third party personally serves the respondent, the person who did not initiate the legal process for divorce;

the date that the respondent files with the court a Notice and Acknowledgement of Receipt, acknowledging that he or she was served with the summons and petition; OR

the date that the respondent appears in court.

Sample Petition

Sample Petition

Note: For this and all other judicial council forms contained herein, please note that the judicial council updates these forms regularly. Check with your attorney to make sure that you are using the current version of each form.

1.14 What is a divorce petition?

A divorce petition, also referred to as a petition for dissolution of marriage or registered domestic partnership, is a document signed by the person filing for divorce, and filed with the clerk of the court to initiate the process. The petition will set forth in very general terms what the petitioner is asking the court to order. This is not a request for relief, but is the document necessary to commence your action. (See sample petition on pages 10–11)

1.15 My spouse said she filed for divorce last week, but my lawyer says there’s nothing on file at the courthouse. What does it mean to file for divorce?

Filing for divorce means filing a summons and petition for dissolution with the clerk of the court. This process commences the dissolution action.

Sometimes a person who has hired a lawyer to begin a dissolution action uses the phrase I’ve filed for divorce, although no papers have yet been taken to the courthouse to start the legal process. Retention of counsel is an important step in the dissolution process, but until the summons and petition are filed with the court, a divorce is not formally commenced.

1.16 If we both want a divorce, does it matter who files the petition?

It depends. In the eyes of the court, the petitioner (the party who files the petition initiating the legal process of the divorce) and the respondent (the other spouse) are not seen differently, by virtue of which party filed first.

Your attorney may advise you to file first or to wait until your spouse files, depending upon the overall strategy for your case and your circumstances. For example, if there is a concern that your spouse will begin to transfer assets upon learning about your plans for divorce, your attorney might advise you to swiftly file for dissolution and serve the summons and petition so as to bind your spouse to the terms of the automatic temporary restraining orders (ATROs), which are clearly set forth in the summons. These orders preclude either party from transferring or otherwise disposing of assets other than in the normal course of family living. However, if you are separated from your spouse but have a beneficial temporary arrangement, your attorney may counsel you to wait for your spouse to file.

Allow your attorney to support you in deciding whether and when to initiate the legal process by filing a petition for dissolution of marriage.

1.17 Is there a way to avoid embarrassing my spouse and not have him served with the divorce papers at his workplace?

In California, service is typically provided by personal service using a private process server. Anyone older