How to get a divorce in California

California is one of the largest and most populated states in the US. There are millions of people in the state who are married or living together as domestic partners. Unfortunately, some of those partnerships end up in a divorce or a separation.  This article discusses various options to legally end a domestic partnership and the steps required to complete a divorce or separation.

 

California couple discussing divorce options

Warning:  This post is neither legal advice nor a substitute for the legal advice offered by a lawyer. Divorce is a very serious matter. It can impact your child custody and visitation rights, property, and other matters. While not required, it is recommended that professional legal advice shall be obtained before pursuing further.

Basics

The State of California is a "no-fault" divorce state. It means that either partner/spouse can file for a divorce. The other person doesn't have to agree with the filing party for the divorce to complete.  

California offers three ways to legally terminate a marriage by a divorce, legal separation or an annulment.

Divorce

In California, one of the spouses can file for a divorce without any reason. A person can get a divorce if they have “irreconcilable differences” with their spouse or domestic partner. It can take from 6 months to several years for the divorce to complete depending on other issues such as alimony, child support, and division of property. If the couple was married for less than 5 years, they have a faster option to end their marriage by filing for a summary dissolution. 

Legal Separation

Some couples may not want to get a divorce for various personal, social, and religious beliefs. Instead, they may opt for a legal separation that allows them to live their lives separately. But just like a divorce, they can ask the court to make orders on child custody and visitation, child support, alimony, property division, and debt payments.

Annulment

Most of the couples get married in a good faith. However, some marriages are legally invalid because either they were fraudulent or forced by the family or the other spouse. Such marriages can be voided and completely erased through the annulment process regardless of the length of the relationship. With an annulment, all marriage and divorce records get purged from the public records.

 

How to file for a divorce?

Residency Requirements for Divorce

1. Must be living in California for 6 months.
2. Must be living in the current county for 3 months.
3. Spouses living in separate counties for 3 months can file for a divorce in either of the counties.

Exception: Same-sex married couples that were married in California but now live in another state that does have laws to dissolve a same-sex marriage can file for a divorce in California.

 

Residency Requirements for a Legal Separation

1. One of the spouses must be living in California
2. After enough time has passed they can ask the court for a divorce by filing an amended petition

 

Residency Requirements for an Annulment 

There are no residency requirements for an annulment.

 

Divorce Application Steps

1. The applicant who desires a divorce should fill out the divorce petition with information about their marriage/domestic partnership and the list of orders they would like the court to make.
2. They should also fill out the divorce summons that informs their spouse/domestic partner about the intent to get a divorce. The form should also list all of the property, money, other assets, and debts that the applicant would like to claim or get a share in. The summons once sent will prevent their spouse from leaving the state, applying for a new or replacement passport for the children without their consent or the court order. Orders regarding custody and visitation rights can also be obtained with this form. If someone in the household needs health insurance this form can also help them with it. 
3. The applicant should get these forms reviewed by the legal experts before submitting them.
4. They may also need to fill out any local forms required by your city or county.
5. Make two copies of the filled forms. The originals are submitted to the court. One of the copies is for your spouse and the other one is for your records.  
6. Once the applicant is ready they should file the forms with the court clerk or have a lawyer do it on their behalf. They may be required to pay some filing fees. In the case of financial hardship, a fee waiver can be requested.
7. After filing the forms, a copy of the forms must be served by the applicant to their spouse. The applicant can have a friend, relative, county sheriff, or a process server serve these forms.  
8. The forms must be hand-delivered by the server unless the other spouse is a co-operating spouse and also wants a divorce. In that case, the forms can be mailed with an acknowledgment receipt. The mailing option can save the applicant quite a bit of money unless a family member or a friend was going to serve on their behalf.
9. If they don't know where your spouse or domestic partner is, or if they are in the military, in jail, or do not live in California, or if they have difficulty serving the form they may need to contact a lawyer to complete the task.
10. The applicant's spouse has 30 days to respond to the petition. Meanwhile, the applicant can request temporary orders for child custody, child visitation, child support, and spousal/partner support.
11. Either at the time of the filing or after filing Financial Disclosure forms must also be filed and served. With these forms by both parties, a divorce cannot be completed. The financial disclosure shall disclose all your assets, debts, investments, income and expenses, properties, and tax returns from the last 2 years.

 

After filing and serving, couples may decide to reconcile. In such a case, they can file a request for dismissal.

 

How to file a response to a divorce notice?

Respondent Options

The spouse who receives divorce filing summons has the following options:

1. No Contest with True Default - By not responding at all to summons the judge will grant property, support, child custody, and visitation rights based on the filing spouse's request.
2. No Contest with Default - If both of the spouses have a notarized agreement to end their marriage, along with the division of the property, debt, spousal, and partner support, child support, and visitation rights then the divorce will be granted by default.
3. No Contest with Filing - If the responding spouse files a response but reaches an agreement with their spouse on all the outstanding issues then the marriage will end uncontested.
4. Contested Divorce - If the responding spouse files a response with a disagreement on what the filing the spouse is asking for then the judge will do a deep dive and make a decision.

 

Response Filing Steps - Contested / Uncontested

1. The respondent shall file the response form with their agreements/disagreements on their spouse's separation proposal.  
2. They should also fill out the child custody and visitation application.
3. Either at the time of the filing, a response, or after the Financial Disclosure forms must also be filed. 
4. Have the forms reviewed by a legal expert.
5. File the forms and required fees with the court within 30 days of receiving the summons. They may be able to get financial assistance if needed.
6. Two copies of the forms should be made by the respondent. One for their own records and the other one shall be served to filing spouse.  
7. The forms can be served by a friend, relative, co-worker, county sheriff, professional process server, or anyone above the age of 18 who is not part of the case. 
8. In case of an uncontested divorce, the forms can be served by mail with an acknowledgment receipt (e.g. FedEx, UPS, or USPS)
9. Proof of service shall be submitted to the court.  

 

How divorce is completed?

The completion of divorce depends on the responding spouse's response:

1. No Contest with True Default - The filing spouse can file the required forms after 30 days and the judge will grant property, support, child custody, and visitation rights based on the filing spouse's request and the best interest of the children.
2. No Contest with Default - The filing spouse can file the required forms after 30 days and a copy of the notarized agreement to end their marriage, along with the division of the property, debt, spousal, and partner support, child support, and visitation rights. The judge will grant the divorce based on the agreement and the best interest of the children.
3. No Contest with Filing - If the responding spouse files a response but reaches an agreement with their spouse on all the outstanding issues then the judge will grant the divorce based on the agreement and the best interest of the children. However, both spouses shall file the final forms to make the judgment final.
4. Contested Divorce - If the responding spouse files a response with a disagreement on what the filing the spouse is asking for then the judge will do a deep dive and make a decision. In some cases, the judge may grant the divorce while other matters are still being decided. Once the judge has decided both parties will be required to file the required forms to make the judgment final.

 

Post Divorce Amendments

Any changes made to the agreements that were approved by the judge including but not limited to the alimony, child support and parenting plan shall be submitted to the court for a review to make it legally binding. It doesn't matter if the agreement was drafted by the former spouses, a family mediator, or an attorney. It must be submitted to the court to make it legally binding.

 

How to request a summary dissolution?

Summary Dissolution is a simple way to end a marriage or domestic partnership if the couple has been married or in a legal domestic partnership for less than 5 years and has a limited amount of community property and debt. Summary Dissolution is available to:

• Married Couples
• Domestic Partners
• Same Sex Couples 

 

Summary Dissolution can be filed without a lawyer and the couple will not need to speak to a judge either.

 

Qualification for Summary Dissolution

Before a couple can file for a Summary Dissolution they must meet the following criteria:

• Marriage and Domestic Partnership Length - Minimum 5 years from the date of marriage to the date of separation.
• No children of their own or adopted before during the marriage.
• Are not expecting a new child.
• Do not own any real estate.
• Do not rent any land or buildings except the primary residence without a 1-year lease and without an option to buy it.
• Have not accrued any debt over the limit of $6,000 excluding the auto loan since getting married or entering a domestic partnership.
• Have less than $47,000 of joint property excluding cars.
• Have less than $47,000 of separate property excluding cars.
• No alimony/spousal support is required.
• Have a division of property agreement.

 

Steps for Requesting A Summary Dissolution

1. Read the Summary Dissolution Information booklet and prepare to swear under penalty and perjury that you have read the booklet.
2. Find an applicable court to file your request.
3. File a joint Petition for Summary of Dissolution together and any local court forms.
4. Fill out the top portion of the Judgment of Dissolution and Notice of Entry Judgment form
5. Both should fill out and exchange an Income and Expense Declaration and 3 worksheets or disclosure forms for declaring assets, debts, and the division of property.
6. A property agreement and shall be written and signed by both.
7. All documents shall be reviewed by a legal expert.
8. Make two copies, one for each party, and submit the original to court.
9. The judge will review all the documents and make a decision.

 

Is annulment an option?

An annulment is when a court decides that a marriage or a domestic partnership was not legally valid from the start. An annulment can erase all the previous marriage / domestic partnership records as if it never occurred.  

 

Qualifications for Annulment

A spouse can request an annulment if one of the following criteria are met:

1. The couple is related by blood e.g. cousins, siblings.
2. One of the spouses was already married before entering the current marriage or domestic partnership.
3. The filing spouse was under the age of 18 at the time of entering the marriage or domestic partnership. The filing spouse can file for an annulment within 4 years after reaching 18 or parent or guardian can request the same while they are still under the age of 18.
4. If a spouse from the prior existing marriage was missing for 5 or more years and was considered to be dead but is alive. An annulment can be filed by either party of the prior spouse.
5. Either spouse is mentally unstable or is unable to understand the obligations that come with a marriage or domestic partnership. An annulment can be filed by the relative of the person with the unsound mind or the other spouse.
6. Either spouse deceived the other to enter the marriage. Common examples are getting a green card or hiding the inability to have children. An annulment can be filed by the person who was deceived within 4 years of discovering the fraud.
7. Either spouse was forced into the marriage by the other spouse, family, or a third party. An annulment can be filed within 4 years of getting married by the spouse who was forced to enter the marriage.
8. Either spouse is unable to consummate the marriage due to a physical limitation. An annulment can be filed within 4 years of getting married by either of the spouses.

 

Children from an Annulled Marriage

If the children were born during the annulled marriage/domestic partnership then the judge must be requested to establish paternity. Upon establishing the paternity, custody and visitation and child support must be determined.

 

Debt and Property

By voiding a marriage or domestic partnership generally, neither of the parties can have a claim the right to alimony, property, or sharing the debt under the community property regulation. However, if the filing spouse can prove that they entered the marriage in a good faith they can be eligible under the community property laws. Otherwise, a judge may decide how to proceed. 

 

What are the requirements for spousal/partner support during and after the divorce proceedings?

In the State of California, one of the spouses may be eligible for partner/spousal support during and after the divorce/legal separation.

 

Initial Order of Spousal Support

When the divorce or legal separation proceedings start one of the spouses can request the judge to order the other spouse to pay the temporary support. Judges use a standard formula based on other spouses' income to order this support.

 

Final Order of Spousal Support

For the final order when the case ends the judge doesn't use a formula to order the spousal support. Instead, several factors are taken into the consideration.

• The time period of the marriage or domestic partnership.
• The amount of money each person needs to maintain the lifestyle they had during the marriage.
• The earning capacity of both spouses, marketable skills of the spouse getting paid, job market, cost and time required for the recipient to gain new skills, and how the recipient's earning capacity was impacted during the marriage when they were devoted to domestic duties.
• The impact on childcare, if the recipient takes a job.
• Age, health, debts, and property of both spouses.
• Did one of the spouses help the other get an education, training, career, or professional license? For example, a grocery store clerk paid for their spouse to become an Accountant or a Software Engineer.
• Incidents of domestic violence in the marriage or partnerships.
• Career impact on one of the spouses by unemployment or by taking care of the children or home.
• The impact of state and federal income taxes on spousal support.

 

The amount of spousal support can be amended if situation of either spouse changes.  It can also be ended if one of the spouses dies or remarries.  A judge may also decide to end the spousal support.

 

How child support is determined during and after the divorce?

During and after the divorce or legal separation a judge may order the non-custodial parent to pay child support to the custodial parent.  The child support amount is determined based on the payer's income, the number of children, and other children the payer is responsible for.  

 

How debt and property are divided?

California is a community property state. Unless a prenup is in place, everything that the couple made during their marriage/domestic partnership is split equally.  During the divorce, either of the spouses can request the judge not make them liable for any debts that may be incurred by the other spouse while the divorce is in progress.

 

How much does a divorce cost?

The cost of divorce can vary significantly based on the complexity of the case.  Cost of divorce is even higher in California due to high living expenses.  A DIY divorce can cost only a few hundred dollars.  Online services may charge a couple of thousand dollars to review all the docs to help you with a DIY divorce. But such options are best only for couples who do not have kids or any significant assets.   In most cases, the cost of divorce may run up to $10,000 for each spouse.    In more complex cases it may cost several multiples of that.