California Divorce – An Overview of the Divorce Process

There are many benefits of an uncontested divorce. If a divorce is uncontested, this means that the parties are not spending thousands of dollars in court and attorney fees fighting over issues. When a divorce is uncontested, both parties remain in control of the divorce process. This means that both parties get to decide between themselves how their marital property will be divided, what the best parenting plan for their children are, what custody and visitation schedule works best, and how marital debts will be settled. Uncontested divorces help couples reduce and/or completely eliminate the hurt and anger often associated with the divorce process.

The Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) was created to help prevent one parent from going to a different state with the couple’s children and then filing a custody action. Under the Uniform Child Custody Jurisdiction Enforcement Act, the court will look to see which state the child resided in and was the child’s home state during the previous six months to determine whether the court in a particular state has authority and jurisdiction to make court orders over the parties and their children.

The courts also look at 1) whether another state could also have jurisdiction over the child under the act, 2) whether the parent and the child have a significant connection to the state, and 3) whether the majority of witnesses and the evidence are in the state.

In California, it does not matter who files divorce first; meaning, if your spouse filed for divorce first, it does not impact the case. Unlike other states, it does not matter if a spouse was involved in adultery or why a party wants a divorce. The majority of divorce are filed simply due to the parties having “irreconcilable differences”, meaning California is a no-fault state.

California law requires a person to live within the state for at least six months prior to filing for divorce. If you do not meet this criteria, you may be able to for legal separation. Afterwards, once you have lived in the state for six months, you can amend your legal separation documents and file for divorce.

If you were providing health insurance for your spouse before you filed for divorce, the answer is “Yes”. In California, any existing health insurance policies must be maintained until a divorce is finalized. When a divorce is filed, a Summons is issued by the Court which specifically states, in part:

“Starting immediately, you and your spouse or domestic partner are restrained from: cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage, including life, health, automobile, and disability, held for the benefit of the parties and their minor children.”

A party in the middle of divorce may face serious penalties if they remove their spouse from an existing plan. If there is a cost to maintaining the plan, you could consider filing a motion with the court to address that issue until the divorce is finalized.

Although California community property laws require courts to divide marital assets between both spouses 50/50, the parties can mutually  agree to any other division they feel is fair and equitable. If the parties do not agree, then most likely the court will divide all community assets and debts down the middle between both parties. This includes bank accounts, retirement accounts, real estate, household goods and furniture and vehicles.

First, keep in mind that the mandatory Preliminary Disclosures (Step 2 in our process) are only required to be exchanged by both parties if they are signing a Marital Settlement Agreement or the matter goes to a full trial. If the other spouse does not file a formal Response to the Petition AND a Marital Settlement Agreement is not being signed, the case can go ahead without the non-filing spouse completing this step. On the other hand, the Petitioner always must complete the preliminary disclosures. The final disclosures can be mutually waived by both parties if they are signing a Marital Settlement Agreement. The final disclosures can also be waived by the Petitioner if the matter is proceeding by default without a Marital Settlement agreement.

Since there is no termination date in a legal separation, a Judgment of Legal Separation can be submitted for processing 31 days after the date of service. This is based on the parties signing a Marital Settlement Agreement or the matter proceeding by way of default. The amount of time it takes the court to process the Judgment will vary but can be as quick as 2 weeks or as long as several months. Once a Judgment of Legal Separation is entered, the case is completed.

Keep in mind that the parties remain legally married in a legal separation. Therefore, if the parties later decide they want to proceed with a divorce proceeding, they will need to refile an entirely new proceeding with another court filing fee.

There is no imposed “deadline” for two people to complete a divorce or legal separation but the courts do not want cases sitting idle and will ultimately dismiss the case if there is no activity over a long period. There are usually deadlines to file the Proof of Service and to file proof of completing the mandatory preliminary disclosures. Sometimes courts will set follow-up status conference dates when the Petition is filed to make sure the case is moving along. Refer to your paperwork for a court notice about scheduled status conference dates. If the actions stated in the notice have not been completed, the Petitioner and/or Respondent may be required to appear before the Judge and explain the delay.

An annulment always requires a court hearing. If the other side does not file a Response to the Petition for Annulment, a hearing can be requested 30 days after the date of service. At the hearing, a Judgment can be entered if the annulment is approved and the case is completed at that time. There is no future “termination date”  and parties would be able to remarry immediately.

Do you have to appear in court for divorce? Probably not, if you and your spouse can agree to all terms of the divorce: child custody and visitation, property division, spousal and child support etc. When the parties agree, the case can usually be settled as a non-contested divorce without ever appearing before a judge. A Marriage Settlement Agreement (MSA) is presented to the court for approval by the judge that outlines all the specifics of the above items. The judge will grant the Final Judgment incorporating all the elements of the MSA without ever seeing the parties in person.

If you and your spouse cannot or do not agree and your spouse does not file a Response to the Petition for divorce, it is possible to get a unilateral Judgment by default. There is extra paperwork that the court will need if there are issues that must be addressed in the Judgment such as child support, child custody and visitation, or the division of community property and debt. A party still will not have to appear in court to get a Judgment, but it will be up to the Judge to sign and approve the proposed Judgment terms because the court wants to be sure that the party who has not appeared in the case is being treated fairly and equitable.

Either party can file a Request for Order to have the court make a temporary child custody, visitation and/or support order. This triggers the court scheduling a mandatory mediation sessions. Some courts also require the parties to attend a pre-mediation class or a parenting class.  Most child custody disputes are settled through the mediation process. If the parties do not reach an agreement through mediation, the matter will go before a Judge. The mediator will present the Judge with their recommendation. Often the Judge will go along with the mediator’s recommendation. Once a parenting plan has been put into place, the judge can then set a child support order. Many factors are considered when ordering child support. This includes the amount of time each parent spends with the child(ren), each parent’s income and expenses, and the children’s living expenses.

Once you have an assigned case number, either party can file a Request for Order to obtain a temporary spousal support order. California judges typically issue support orders based on California guidelines. A People’s Choice can run this guideline report to give you an idea of what a court may award in your particular case. On the other hand, you and your spouse can address this issue through mediation if you are unable to come to an agreement. Contact A People’s Choice for help resolving your spousal support dispute.

Separate property is typically property that you owned before you got married. It also includes property that you inherited, even if you inherited it after you got married. Property that was acquired after the marriage but may be titled in only one of the parties’ names is considered community property, not separate property.

Joint property (community property) is property that you acquired with your spouse during the marriage, no matter if it is only in the name of one of the parties. Keep in mind, however, that a community property interest in separate property can be later acquired by a spouse in some situations. For example, if one party had a rental property before they were married, but joint/community funds were used to take care of that property (mortgage payments, taxes, maintenance, etc), an unrecorded community property interest for the spouse that is not on title may accumulate a community property interest in that property.

Most family law documents that are filed with the court do not require notarization. The one exception is the Marital Settlement Agreement which will need to be signed in front of a notary by both parties.

A default judgment is an easy way to get a final divorce judgment, and can be obtained when the other spouse does not formally file a Response to the Petition. A “Default Judgment” can occur when the other spouse (the respondent) does not formally respond to the Summons and Petition for Dissolution. When a case proceeds by way of a default judgment, the other party does not have to pay a “first appearance fee” which is now $435.00.  It should be noted, however, that in most default judgement cases, the parties mutually agree to resolve all of their issues surrounding their marriage. Their agreement is formalized in a marital settlement agreement which is then attached to the Judgment and becomes a court order.

Sometimes, however, the parties do not sign a marital settlement agreement. Perhaps there are no assets or debts to divide and no issues of child custody, visitation, support or spousal support. In this situation, there is no need for a marital settlement agreement. When there are no assets or debts to divide and no other issues to be addressed, the judgment paperwork is fairly simple.

In other situations, the other spouse may be refusing to cooperate. When this happens, obtaining a default judgment is a little more complicated and requires extra paperwork to address the issues of assets, debts, children or support.

The enforcement of a retirement plan division in divorce requires the parties to file a Qualified Domestic Relations Order (QDRO) with the court . A copy of the filed QDRO is then given to the Plan administrator. The QDRO will outline the division of retirement benefits according to the Judgment of divorce or legal separation. Typically the divorce Judgment will explain how the retirement benefits are to be divided. Most Plans provide a package of instructions regarding the Plan’s language requirements for a QDRO. A draft of the QDRO is sent to the Plan Administrator for pre-approval. Once the QDRO has been pre-approved by the Plan Administrator, the QDRO is signed by both parties and submitted to the court for filing. Most Plans require receipt of a certified copy of the filed QDRO before they will divide the retirement benefits pursuant to the provisions of the retirement plan division in the divorce.

If you received a Notice of Entry of Judgment, this usually means that the court has approved and entered a Judgment in your case. If you and your spouse signed a Marital Settlement Agreement, the Judgment will have that agreement attached which has now become a court order. Take a look at the Notice of Entry of Judgment document carefully. On the form there will be a section with a box around it that pertains to the termination date of the marriage. Often in our cases, the Judgment is entered long before the termination date of the marriage. Once you have located the termination date of the marriage, this is the date that you will officially be considered “single”.  What does this mean? Although your divorce case may be completed in the court’s eyes, don’t get remarried until after the termination date as noted on this form!

Keep in mind, sometimes it is possible to split the divorce issues from the act of dissolving the marriage. This allows the parties to terminate their marriage without resolving all of the issues of the marriage. In that case, some aspects of the divorce may still be pending. Lastly, if the Judgment includes retirement division, the QDRO process is a separate process that continues after the Judgment has been entered.