Overview of the Non-Litigation
Divorce Process
In California, a divorce is actually called a dissolution of marriage. A dissolution can be done in one of three ways:
- by default
- by contest
- by agreement (uncontested).
This will provide an overview only for the dissolution by agreement, or the uncontested divorce.
The process begins when one spouse files a Summons and Petition (and other supporting documents) with the Court requesting a dissolution of marriage.
Then that spouse must "serve" the other spouse with the Summons and Petition. There are many ways that a spouse may be served, and certainly ways that two cooperative spouses can avoid any embarrassment that may be created by serving a spouse in public.
The spouse being served with the paperwork has 30 days after proper service to file a Response. The spouse who filed the Summons and Petition is called the Petitioner and the other spouse is called the Respondent.
The next step may be to exchange financial information between the parties. Effective January 1, 1993, spouses in a dissolution are required to exchange court documents that disclose all information about their property and debts and full details of their income and expenses. The court provides a form to do this. It's called a Declaration of Disclosure.
After financial information is exchanged, both parties have information to discuss the issues. Both spouses will need to decide how to divide whatever property and bills have accumulated during the marriage and if there will be spousal support and if so, how much for how long. If there are minor children involved, spouses must also decide how they will share the care and responsibility of raising the children and how much will be paid for child support and other related expenses.
Parties may need to agree on a few issues immediately before all issues have been decided. An interim or temporary agreement may be signed to address immediate needs.
After the parties have negotiated and come to a final agreement, a marital settlement agreement or judgment is prepared. The judgment and supporting documents are filed with the court for the judge to sign and for the judgment to be entered. The judgment becomes enforceable as soon as it is entered even if the parties are still married. However, after the judgment is entered and the six month waiting period has passed, the marital status is terminated.
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Waiting Period
In California, there is a six month waiting period before a dissolution of marriage may be finalized. The six month period begins at the time one party is served with the Summons and Petition. A Judgment may be entered prior to the six month period and division of property and other orders may take effect. However, the parties will remain married until the six month period has passed.
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Date of Separation
The date of separation of the parties is important because many of the property issues are resolved using that date.
The date of separation is when there has been a final breakdown in family relations, a true parting of the ways with no present intention of resuming the marital relationship. Because this is subjective, if there is a contest over the date, you must show conduct consistent with the final breakup. This may be shown by a physical separation, but may also be shown in other ways. Be careful as physical separation does not always determine the actual date of separation.
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Residence Requirements
Either you or your spouse must have lived in California for at least six months, and in the county where you file papers for at least three months, just prior to filing the Petition.
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Automatic Restraining Orders
Some automatic restraining orders take effect in every case when the Summons is served. Both spouses are ordered by the court not to:
- Remove a child of the parties from the state without prior written permission of the other spouse or order of the court;
- Transfer, sell or encumber (borrow against) any property except in the usual course of business or for necessities;
- Cancel, transfer or borrow against any insurance (including life, health, auto, disability) held for the benefit of either the other spouse or a minor child.
These orders remain in effect until the date you get your Judgment.
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Grounds for Dissolution
You do not need to actually state a reason for wanting a divorce. Only one spouse needs to decide that he or she wants a divorce and that's enough.
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Summary Dissolution
There are several requirements that must be met for a Summary Dissolution.
- A Summary Dissolution must be filed before your fifth wedding anniversary.
- Both spouses must give up all rights to spousal support.
- There are no minor children and the wife is not pregnant.
- There is less than $5,000 in community debts, not counting car loans, there is less than $25,000 in community property, not counting cars; and, neither spouse owns over $25,000 separately, not counting cars.
Even if you qualify for the Summary Dissolution procedure, there is some risk. This is because either spouse can revoke the proceeding at any time before the final Judgment is entered.
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