The procedure for uncontested divorce in California is the topic of this blog post.
This post will briefly discuss the uncontested California divorce filing process and will also provide a summary of the divorce papers that are typically filed with the court clerk.
This blog post is not intended and should not be construed as an exact step-by-step guide for those "do it yourself divorce" filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in California.
In California the term "irreconcilable differences" describes a no-fault divorce. It means that "irreconcilable differences have caused an irremediable breakdown of the marriage."
In California, as in other states, divorces may be either contested or uncontested, but uncontested, no-fault divorces move through the courts more quickly and less expensively.
California is a community property state. This means that assets and liabilities are either community property (half is one spouse's, half the other's, such as the marital home acquired during the marriage), or separate property (one spouse's alone, such as gifts and inheritances).
In California, the party who files is called the petitioner; the party who answers is called the respondent.
The divorce is filed in the Superior Court, normally the county of residence of the couple. One spouse or the other must have lived in California for at least six months and in the county where the divorce is being filed for at least three months.
Moreover, there is a six-month waiting period after the service of process or an answer by the respondent before the divorce becomes final.
Most of the forms used in divorce in California are those adopted by the California Judicial Council, and their use is mandatory. County courts also have forms that may be used in compliance with local rules governing divorce.
California also permits what is called a Summary Dissolution of Marriage. Also called a simplified or special dissolution of marriage, a summary action is an inexpensive and easy way to divorce for those couples who qualify, but both the husband and wife must be certain they want to go this route because either can change his or her mind during the six-month waiting period between the filing and the finalization of the action. To qualify for this divorce routine, a couple must meet certain requirements.
The procedural requirements for an uncontested divorce come from California statutes, the California rules of Court, and the local rules of court.
Depending on the unique circumstances that apply to their situation, the couple will file a variety of court papers. These include a property settlement agreement dividing community property (the martial estate) and establishing the terms and conditions of child care and spousal support.
However, the basic steps for an uncontested divorce are as follows: File a Petition for Dissolution of Marriage asking the court to grant a divorce.
Notify the other spouse that a divorce has been filed. This is called the Summons- Family Law, and it includes a response form.
Exchange Preliminary Declarations of Disclosure, or if the other spouse does not cooperate the Petition needs to serve a Preliminary Declaration of Disclosure including a Schedule of Assets and Debts and an Income and Expense Declaration.
The Final Declaration of Disclosure can be waived by both parties but the Preliminary cannot be waived.
If both parties agree a Marital Settlement Agreement is then prepared which outlines the agreement of the parties regarding child custody/visitation/support if applicable, spousal support if applicable, and division of property and debts.
If the other spouse does not cooperate and does not respond to the Petition, then a Request to Enter Default must be filed along with a Request for a Default Hearing.
Submit the Marital Settlement Agreement and other final paperwork to the Court for processing.
If both parties agree then no Court appearance will be required. If a default hearing is involved then a Property Declaration and an Income and Expense Declaration must be submitted to the Court before the Default Hearing. At the hearing a proposed Judgment must be submitted to the Clerk before the Judge hears the case. If the Judge agrees with the proposed Judgment he will sign it which will finalize the divorce.
In all cases, the divorce begins with the Petition, the Summons-Family Law, Response and any local forms that may be required by the county court.
The Petition, the Summons-Family Law, Response and any local forms that may be required are normally served by a process server and may not be hand-delivered to the other spouse by the Petitioner because he or she is a party to the action. This is called Service of Process.
Other forms may normally be mailed to the other party by first class mail. Divorcing a missing spouse -- one who cannot or will not be located -- requires a good faith effort at locating him or her, followed by ex parte (without notice) application to the court for Service by Publication. In order to obtain an order for Service by Publication, the Petitioner must first make a good faith (or "diligent") search for his or her missing spouse. This search normally includes checking telephone directories in the area where both the petitioner and respondent live or lived, asking friends and relatives, checking tax records, contacting the department of motor vehicles, voter registration, etc.
After a diligent but fruitless search has been made, the court approves an application to the court of Service by Publication. This requires the completion of a form, Ex Parte Application for Publication of Summons; Declaration in Support Thereof; Memorandum of Points and Authorities as well as Order for Publication of Summons. After these have been approved, the summons can be published in a newspaper. The summons must be published once a week for four successive weeks, with at least five days between successive publications.
The Petition, which must be completed in all cases, identifies the Petitioner and Respondent, the date of the marriage, the date of separation, the minor children (if any), makes a declaration of the community and quasi-community assets and debts and states the relief sought.
Depending on the situation -- that is, whether or not the couple are in agreement -- other forms (see below) may be accompanied with the Petition. For example, if there are minor children of the marriage, the petitioner must file the Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and attach it to the petition.
The Summons-Family Law is the Notice to the Respondent. It gives him or her 30 days to respond and carries with it a warning that failure to respond may result in a default judgment against him or her. The Summons also restrains both parties from removing minor children from the state and dissipating marital assets.
After one spouse files, uncontested divorces evolve in one of two ways.
The first is when the spouses agree on every issue: asset and liability division, the terms and conditions of child custody, support and visitation, alimony. A divorce can be said to be uncontested when the spouses do the fighting before going to court, come to an agreement, and the judge then approves it if it is fair and reasonable.
The second way happens when the Respondent does not respond to the petition for divorce. In addition, sometimes the responding spouse cannot be located.
Sometimes divorcing spouses agree that the responding spouse will default. This is not collusion, and divorce proceeds through the court with his or her agreement. When a couple agree on all issues, or when either defaults, the court may issue Judgment either by Declaration without an appearance in Court, or a Default Judgment after a Court hearing. As stated previously, if both parties agree then a Court appearance will in most cases not be required.
After a summary action, an uncontested action coursing along this default route is probably the easiest route to a divorce.
The trajectory of a contested divorce is difficult to predict because it is litigation, and it is adversarial.
A contested divorce begins with the same filing procedure, then often one of the parties will request an Order to Show Cause Hearing, after which the judge will rule on temporary support, child custody and restraining orders. The parties then may engage in Discovery, which becomes far more invasive and complicated than the voluntary disclosures made in an uncontested action. In both uncontested and contested actions, the Preliminary Declaration of Disclosure is used as well as the disclosure of current expenses and incomes.
After discovery, the parties and the lawyers attempt to settle the case through negotiations. If they reach an accord, one of the lawyers prepares a MSA based on California's community property divorce law. This is a contract signed by the parties and their lawyers. But if this fails, the parties go to trial. Clearly if both parties can agree on all, or most of the issues, they can save a lot of time and money by proceeding with an Uncontested Divorce.
Attorneys or parties in California that would like to view a portion of a sample 18 page Marital Settlement Agreement that is sold by the author can use the link shown below.
Sample Marital Settlement Agreement for California by Stan Burman on Scribd
Attorneys or parties in California that would like more information on a California divorce litigation document package containing over 45 sample documents including a sample marital settlement agreement can use the link shown below.
The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale.
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DISCLAIMER:
Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.
The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.