This article in part of our series about "Divorce in California". You can find the links to the other articles at the bottom of the article.
So you and your spouse are unsatisfied in your marriage and have decided to call it quits. We know that filing for divorce can seem pretty complicated, so we’re here to help.
Keep reading for your step-by-step guide to the California divorce process.
Step 1: Make sure that you meet California’s divorce residency requirement.
Before you dive into the divorce process itself, you’ll need to make sure that you’re eligible for a California divorce in the first place.
This means that you’ll have to meet the state residency requirement. California law provides that in order to qualify for a California divorce, at least one person in the marriage has to have been a resident of the state for a minimum of six months before filing a divorce. In addition, one spouse has to have lived in the court filing county for a minimum of three months.
The same residency rules apply if you wish to dissolve a domestic partnership. In fact, most divorce laws are applicable when cutting ties with a domestic partner, you’ll just need slightly different paperwork.
So, please keep in mind that every time we mention divorce or refer to your spouse, the same information applies to you and your domestic partner.
Once you and your spouse have established residency, you will be ready to get started on the paperwork.
Step 2: Filing the Petition
The next step in the divorce process is filing the divorce petition (also known as a petition for dissolution) with your county’s court clerk. This first set of divorce paperwork initiates your divorce proceeding.
This packet mostly serves to identify the parties and give some basic information about them. This includes a financial disclosure form in which you will be required to identify all of your assets, regardless of whether they are shared with your spouse. Your spouse will have to do the same when it comes time for them to file a response.
It’s essential that you are completely forthcoming with your financial disclosures, even if you think you’re engaged in an uncontested dissolution (meaning you have a prior agreement, and thus do not believe that you and your spouse will be fighting over said assets).
If it is discovered later on that one spouse hid assets from the other, it is within the discretion of the court to financially penalize the bad actor by awarding the innocent spouse the better end of the bargain.
Under California divorce law, the spouse who files the petition becomes known as the petitioner, and the other spouse is referred to as the respondent. Sometimes the petitioner is also referred to as simply the filing spouse.
These terms will be used to identify you and your spouse throughout subsequent divorce documents.
Generally, it does not matter who is the petitioner and who is the respondent, because in California no fault divorce is your only option. Instead, your California divorce papers will reflect that you have decided to end your marriage due to “irreconcilable differences.”
A key exception to this generalization is when you are a survivor of domestic violence at the hands of your spouse. If that is your situation, you will definitely want to file the petition yourself, because initiating the divorce proceedings will give you the opportunity to obtain a restraining order if the court deems it necessary.
Whoever files the petition will also be responsible for paying a filing fee of $435 at this time. If you cannot afford the fee, you can instead request a fee waiver from the court.
Often, the date the petition is filed will serve as your legal separation date. In this situation, legal separation just means the moment at which the irreconcilable differences occurred. After your legal separation date, you and your spouse will no longer accrue community property.
Step 3: Serving Your Spouse
Once you have filed the petition, you will need to serve your spouse. This just means giving your spouse formal notice that a divorce case has begun and providing them with a copy of all of the divorce papers that you have completed so far.
Since this is formal notice, there are some restrictions regarding who is allowed to serve the respondent. In California, you can either hire a professional process server or request the help of anyone over the age of 18 who is not a party to the case.
If you and your spouse are on good terms, you also have the option of serving them by mail, in which case they will need to sign and return a document acknowledging that they have been served.
Step 4: Waiting for a Response
Once you have served your spouse, they will have 30 days to complete a parallel set of divorce papers called the response. They too will need to file their forms with the court clerk.
If your spouse fails to file the response within this timeframe, the court has the ability to issue a default judgment against them. This means that they will not be able to voice their preferences regarding family law matters like child custody, child and spousal support, and how community property should be distributed.
Step 5: Reaching a Deal
Assuming that the respondent has avoided default judgment, you will now both be involved in resolving the aforementioned issues of child custody, child and spousal support, and how community property should be distributed. You probably already know that you can do this with a divorce attorney, through divorce mediation, all on your own, or aided by an online divorce platform.
There is, however, one more negotiation option that you may not have heard of: collaborative divorce.
In a collaborative divorce, you and your spouse each hire an attorney and a mental health professional to serve as your personal advocates and your divorce coaches, respectively.
In addition, the two of you will share the services of various other professionals, often including a child advocate, a financial advisor, or even a real estate agent. Your team will be built according to the unique needs of your family.
Because it requires such a vast array of professionals, collaborative divorce tends to be a lot more expensive than mediation, DIY, or online divorce. It is, however, often less expensive than litigation, because the process is designed to promote cooperation and lead to a timely resolution.
No matter what general method you choose, the nature (and expense) of your divorce process will be highly dependent upon you and your spouse’s ability to amicably negotiate. That’s why the simple question “How much does a divorce cost in California?” doesn’t tend to have such a simple answer.
The same goes for “How long does it take to get a divorce in California?” for that matter.
If you are able to reach an agreement without intervention from the court, you are said to have undergone an uncontested divorce. If you do end up in court, then you will have undergone a contested divorce.
Unsurprisingly, uncontested divorce is generally much faster and less expensive than contested divorce. One reason for this is that if your divorce is uncontested, you may be eligible for what’s called a summary dissolution.
As the name implies, this is a sort of abbreviated divorce process. Besides reaching a marital settlement agreement without court intervention, you must also be married for less than five years, have no children together, have limited shared debts and assets, and both agree to waive spousal support in order to be eligible for summary dissolution.
If you go for this option, you and your spouse will file a joint petition together, rather than filing a traditional petition followed by a response.
Generally speaking, neither party hires a divorce lawyer for an uncontested divorce. Sometimes divorcing couples will pay for just an hour or two with an attorney in order to obtain some basic legal advice, but then do the bulk of the work on their own or through an online platform.
For a contested divorce on the other hand, an experienced divorce attorney will advocate for you and help to get you the best deal possible. As a result, you’ll be spending a lot of time in their law office over the coming months, and you’ll learn the importance of a productive attorney client relationship firsthand.
You should be advised, however, that once you get inside the courtroom, what your attorney can do is quite limited by California family law. If you wish to retain a greater degree of self-determination, your goal should always be to reach a settlement before you get to trial.
If you do end up in court, the judge will generally apply a standardized formula for determining spousal and child support and then issue a spousal or child support order. You and your spouse will each keep 100% of your separate property, and your community property will be split up 50/50, even if that means that indivisible shared assets need to be sold off.
While child custody inevitably requires more holistic review, a California court will always order shared custody unless one parent is clearly unfit. That’s because maintaining a comprehensive relationship with both parents is presumed to be in the best interest of the child.
Step 6: Obtaining a Final Judgment
Now that you and your spouse have divided up your lives (by either negotiation or an order from a judge), you are ready to finalize your divorce.
A judge will make sure that all previous divorce forms have been properly filed. If your divorce settlement was negotiated amongst yourselves, then she will also review your plan to make sure that it does not appear coercive.
If everything is in order, you will then receive a final divorce judgment (alternatively known as a divorce decree). Congratulations! You made it through this intimidating process in one piece.
To continue learning about divorce in California, see the following articles in the series: