A divorce, known as a dissolution in California, ends your marriage. There is no difference between the
terms divorce and dissolution; they are interchangeable. Divorce is a very difficult process to go through;
physically, financially, and emotionally. It can be extremely time consuming and hard on friends and
family too. The simple truth is that over one-half of all marriages end in divorce. Most people will
experience at least one divorce in their lifetime so they should know their rights.
You have options! The court is mostly interested in helping the separating spouses reach a fair agreement
about how their life will be restructured after the divorce so they can move ahead with their individual
separate lives. This means there are a variety of ways to get to the resolution of any one divorce case.
This makes it vitally important to know the law and the process for divorce in California.
Success in most divorce cases is achieved through understanding the process and knowing how to achieve
one’s goals in the most viable manner possible given the specific facts and circumstances of the case.
This sometimes means setting up the case for litigation at the earliest of stages. Other times it could mean
obtaining information well in advance of settlement negotiations to ensure the best outcome for the client.
In California Family Court, honesty and evidence are two of the most important factors to presenting a
winning argument. If a spouse’s representations are truthful and accurate, the likelihood is stronger that
their declarations and testimony will be given very serious weight by the court.
As for the law, California is a community property State. Simply put, this means that upon the Date of
Marriage, the spouses cease to exist as two separate individuals and become a “community.” With a few
exceptions (Please see Division of Marital Property Page link), everything that either spouse earns or
acquires while married to the other spouse is deemed community property. This means that each spouse
shall receive an equal share of whatever the community earned while they were married at the time of the
divorce.
California is also referred to as a “no fault” divorce state. This means that the spouse asking for the
divorce does not have to prove that the other spouse did something wrong. However, it is important to
note that there are only two grounds for divorce in California; irreconcilable differences or permanent
legal incapacity to make decisions. The latter occurs when one spouse is mentally incapable of making
decisions on a PERMANENT basis. The former can be as simple as one spouse deciding they don’t want
to be married to the other spouse anymore or stating that they have “irreconcilable differences” with the
other spouse.
Either spouse can decide to end the marriage, even if the other spouse does not want to get a divorce. The
divorce process cannot be stopped or prevented by one spouse refusing to participate in the case. If a
spouse does not participate in the divorce case, the other spouse will still be able to get a default judgment
and the divorce will go through without their participation (link to Default Judgments page).
Remember! In order for a spouse to be able to file for a dissolution of marriage in California, they MUST
meet California’s residency requirements before being able to legally file for a divorce. To meet this
residency requirement, at least one of the spouses must have lived in California for the last six
consecutive months and also must have lived in the County where they are filing the divorce for at least
the last three consecutive months. However, if the parties do not meet the residency requirement, one
spouse can still file for a legal separation. Once enough time has passed so that either spouse meets the
residency requirement for a divorce, they can then file an “amended petition” and ask the court for a
divorce at that time instead of a legal separation.
A very important related issue is the Date of Separation. The date of separation will determine when the
community ceases to exist. This can have major implications when trying to determine the
characterization of property as either community or separate. I urge you to go to the Date of Separation
page (link) to read more about this vital issue.
While each divorce case is unique in its own right, they almost all follow the same case trajectory.
California divorce cases often follow a similar process depending on whether they are “contested” or
“uncontested”. Uncontested cases are quicker and cheaper to resolve than contested cases. In
uncontested cases, the parties settle all aspects of their case prior to the case ever being filed and there is
often no court appearance necessary. Contested cases can range from being completed in a very short
time to an extremely long time. The length of the divorce process mainly depends on the level of conflict
in the case, the issues that need to be addressed, and the cooperation of the other spouse. If the parties are
in complete agreement regarding most of the relevant issues, the case can proceed at an accelerated rate.
The more litigation and court intervention, the longer the process will take to complete.
The California Family Code, California Code of Civil Procedure, and California case law have
established a process for each contested divorce in the State of California. The California divorce process
is comprised of four main stages: Initial Filings, Disclosure and Discovery, Motions, and Resolution of
the Case.
Initial Filings
To begin the divorce process, one spouse must file a Petition for Dissolution of Marriage with the family
court. The filing spouse is referred to as the Petitioner and the other spouse is referred to as the
Respondent. There are several other documents that are filed concurrently with the petition. These are
then personally served on the other spouse. The other spouse then has thirty days to file his or her
Response to the Petition for Dissolution of Marriage. If they fail to file a response, the initiating spouse
can seek a default judgment as previously discussed.
Disclosure and Discovery
The law requires that both spouses prepare and exchange Preliminary Declarations of Disclosure, which
includes a Schedule of Assets and Debts, an Income and Expense Declaration, and the disclosures of
other material financial issues, including but not limited to tax returns and investment opportunities.
These forms require each spouse to provide all material facts and information regarding their income,
expenses, assets and debts; both community and separate property.
The disclosure phase and the discovery phase often overlap. When a spouse needs additional
information, they can serve “discovery” on the other side or on third parties. Discovery is the mechanism
to gain information and may consist of a demand for documents, subpoenas, interrogatories, depositions,
etc. During the discovery phase of the case, each spouse has the chance to demand answers to relevant
questions, request appropriate documentation, conduct depositions and gather documents from third
parties. If no exchange of information is necessary beyond the initial disclosure exchange, the parties will
not have to experience this discovery phase.
Motions
While the divorce case is ongoing, either party may file a Request for Order (commonly referred to as a
“RFO” in California) to request the court make orders (which can be referred to as temporary orders in
that they are being made by the court PRIOR to trial or final settlement agreement). The judge can make
orders relating to anything from child custody and visitation, child or spousal support, control of property,
division of property, payment of debts, attorney fees, and other similar temporary requests.
When thinking of filing a motion with the court, it is important to remember that the judge can never
know about you and your family as well as you and your spouse. It usually makes sense to work out as
many issues as possible outside of court which will save time and money. This can also help spouses
avoid or minimize a lot of the negative emotional impact that contested divorce cases can have.
Resolution of the Case
There are precisely three ways to conclude a California divorce case. The first occurs when parties
reconcile and dismiss their entire case. The second happens when parties reach a full settlement
agreement to resolve all of the issues of their case. Approximately 80% of all California divorces will be
resolved this way. The third takes place when the parties cannot reach a settlement agreement. In this
instance, there will be a trial where a family law judge will make the decision to resolve any outstanding
issue or issues that have not already been settled between the parties. Sometimes it is only necessary to
have a trial on a few issue, but other times trials can last for weeks or even months and can be extremely
costly to everyone involved.
Remember! The divorce process will take at least six months from the date the spouse filing for the
divorce officially has the other spouse personally served with the petition for dissolution of marriage.
Now most divorces take longer than six months, but this is the MINIMUM time period parties must wait
to be legally divorced in California. This is a mandatory waiting period required by California law.
Neither spouse will be able to get remarried until after this six month time period. Even in cases where
parties have reached a full settlement agreement and have filed all the necessary documents with the court
in order to finalize their divorce case, they will still have to wait this six month time period; there are no
exceptions.
There are two other approaches being used to dissolve marriages effectively and in a less confrontational
manner than the traditional court process. These are mediation and collaborative divorce.
In mediation, an impartial person called a mediator, works with both spouses to reach an agreement they
can both accept and live with. The mediator helps people talk the issues through in a way that often makes
it easier for the couple to settle the dispute themselves. Mediators do not make decisions and will not
force either of the parties to agree to anything they don’t want to. Agreements in mediation can only be
reached if everyone agrees. Sometimes mediation will resolve some issues but not others. This is fine, as
parties can still use the courts to resolve their divorce if mediation doesn’t work or resolve every issue.
In a collaborative divorce, both spouses negotiate an agreement with professional help. Each spouse hires
specially trained collaborative lawyers who advise and assist them in negotiating a settlement agreement.
Sometimes there will be other professionals brought in and involved with the case, which include people
like child custody evaluators or expert accountants. For a collaborative divorce, both spouses and their
lawyers usually sign a contract that says they agree they will not go to court. If the parties cannot reach a
settlement and end up having to go to court, the lawyers agree to withdraw from the case and the parties
will need to seek different attorneys for the contested divorce case in court.
