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Divorce FAQ’s for California
What are the grounds for a divorce, also called a "dissolution of marriage?"
California follows the "no-fault divorce" concept. In other words, in California, a dissolution of marriage can be granted if the court finds there to be "irreconcilable differences" that have caused an irrevocable breakdown of the marriage. In effect, this means that if a married person wants to end their marriage, that person can do so, even if the other spouse does not want to end it.
Are there any residency requirements in order to obtain a dissolution of marriage?
Yes. In order to qualify for a dissolution of marriage, one of the spouses has to have been a California resident for the last six months, and a county resident in the same county where the case is filed for the three months immediately preceding the filing of the case.
After the dissolution case is filed, how long does it take to get the marital status terminated?
The marital status cannot be terminated until six months have passed since the Respondent is "served" with the Summons and Dissolution Petition.
What is the procedure for getting a dissolution of marriage?
A typical dissolution of marriage must involve some of the following steps, and certain contested cases may also involve additional steps:
The Dissolution Petition must first be filed with the court. That person is called the "petitioner." The petitioner then "serves" the Petition and accompanying papers on the "respondent." The respondent then has thirty days to file a "response." However, if the respondent is in total agreement with the facts stated in the Petition, the dissolution can proceed as an uncontested matter "by default;" meaning without the need to file a response.
One of the parties to the dissolution may request temporary court orders by filing for an "Order to Show Cause," which means there will be a court hearing to either grant or deny any particular request being made. At this hearing, the judge can make certain temporary orders, for example, child custody orders, child and/or spousal support orders, or restraining orders, to name a few.
If the case is contested (the parties cannot reach an agreement on issues such as division of assets, debt, support, custody, etc.), then the parties will usually engage in a process called "discovery." This is the process in which the parties exchange information and supporting documents that are relevant to the case, for example, information about income, assets, bank accounts, retirement accounts, etc. In fact, one of the legally required aspects of a dissolution is the preparation of a document called Declaration of Disclosure. This is a court form in which each party lists the community and separate property. As part of this disclosure, the parties are also required to exchange current income and expense declarations. Other forms of discovery can include interrogatories (written questions), depositions (oral examination under penalty of perjury), and requests for documents.
After discovery is completed, the parties (and their attorneys, if they are represented) will discuss settlement of the case, assuming it wasn't discussed earlier. If the case is resolved by agreement, one side will prepare a Marital Settlement Agreement, which will contain all of the terms of the agreement. This is a contract that is signed by the parties and their attorneys. This agreement becomes an order of the court, which can be enforced by the court in the future if any term of the agreement is breached.
If the parties are not able to agree on all of the issues of their case, they will go to trial. After the trial has concluded (or if the parties agree to, and sign a Marital Settlement Agreement), one of the attorneys will prepare a document called Judgment of Dissolution of Marriage. This is the document that contains all of the court's orders. The judgment is then filed and the court mails a Notice of Entry of Judgment to each party or their attorney. That essentially ends the formal dissolution process.
Yet, even after the dissolution is final, either of the parties can go back to court to modify certain terms if there has been a "change of circumstances." For example, if appropriate, there can be a change of child custody and visitation, child support, and even issues such as spousal support, as long as there was no prior agreement that such spousal support terms were nonmodifiable.
Joint or sole custody may be awarded based on the best interests of the child and other factors that include 1) the preference of the child, 2) the desire and ability of each parent to allow an open and loving relationship between the child and the other parent, 3) the child's health, safety and welfare, the nature and contact with both parents and 4) the history of alcohol and drug use. Marital misconduct may be considered.
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