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California Divorce Process
Preparing the Divorce Papers
In order to divorce in California, with or without a lawyer, the petitioner, who is the spouse seeking divorce, starts the action with three standard forms - the summons, petition and if there are minor children, the Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act.
All California courts accept standard divorce forms, but some jurisdictions require additional paperwork, so it is a good idea to check with the clerk of courts in the county where the divorce will happen.
At the onset of the action, the petitioner and the respondent, who receives the divorce papers, each have two different sets of divorce documents.
Prior to filing for divorce, the petitioner completes the Petition - Marriage (Family Law Form FL-100), the Summons (Family Law Form FL-110), and Proof of Service of Summons (Family Law Form FL-115); when there are minor children, the Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (Family Law Form FL-105/GC-120), the Child Custody and Visitation Application Attachment (optional Family Law Form FL-311), and the Property Declaration (optional Family Law Form FL-160).
Upon receipt of the summons and petition, the respondent completes his or her response. This includes Marriage (Family Law Form FL-120) and either Proof of Personal Service (Family Law Form FL-330) or Proof of Service by Mail (Family Law Form FL-335), depending on the type of service; if there are children under the age of 18 with the petitioner, the Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (Family Form FL-105/GC-120) and the Child Custody and Visitation Application Attachment (optional Family Form FL-311).
Neither the petitioner nor the respondent should sign any declarations or sworn statements outside of the presence of a notary.
Filing the Paperwork with the Court
The divorce begins when the petitioner files the paperwork with the clerk of courts in the county of residence. Normally, the petitioner pays a filing fee that varies by jurisdiction. The petitioner must pay the fee unless he or she cannot afford it and files the Request to Waive Court Fees (Form FW-001), which the court reviews. If the court agrees that the fee should be waived, the petitioner does not have to pay to file documents.
The clerk stamps the divorce papers with the time and date of the filing and returns copies for the petitioner to deliver to the respondent, who should be given copies as soon as possible.
Serving the Divorce Papers
Service of process, as it is called, is the proper delivery of the divorce papers to the respondent. Service of process ensures that the respondent receives proper notice about the pending action against him or her and an opportunity to “appear,” or defend himself or herself. Service of process prevents an “ambush” in the courtroom. In uncontested actions where the spouses divorce pro se (meaning, on one's own behalf, or without lawyers), the petitioner should arrange service at the respondent’s home. In a contested action, where the other spouse has a lawyer, the lawyer receives the divorce papers, not the spouse.
Service rules apply to the delivery of the first documents in the case. The petitioner is not permitted to serve process. Instead he or she arranges for the county sheriff, a professional process server, or a responsible friend or relative over the age of 18 who is not involved in the case, to hand deliver them to the respondent. In California, service by mail is also permitted. The petitioner must provide a Notice and Acknowledgement of Receipt (Family Law Form FL-117), which the other spouse completes and returns for filing with the court.
Disclosing Financial Information
After the case develops, the petitioner provides information about his or her finances to the court and the respondent. To do so, he or she completes the Declaration of Disclosure (Family Law Form FL-140) and either the Income and Expense Declaration (Family Law Form FL-150) or the Financial Statement (Simplified Family Law Form FL-155). In addition, he or she completes the Schedule of Assets and Debts (Family Law Form FL-142) and the Declaration Regarding Service of Declaration of Disclosure (Family Law Form FL-141), which is proof of service.
These documents detail each spouse’s financial picture, from employment to assets to liabilities and monthly expenses. Pay stubs and tax returns, may be attached. This information helps everyone to understand more about, for example, how much child support should be paid, or whether one spouse should receive alimony. The information should be clear and candid. These forms must be served on the spouse, and proof of service filed with the court.
Contested Vs. Uncontested Divorce
A divorce can be either uncontested, which is when the spouses both agree to all the terms and conditions of the dissolution, or contested, which is when they do not. A contested divorce may mean the parties go to court, or at least start there.
Sometimes young couples qualify for a Summary Dissolution of Marriage that does not require a hearing. This is the simplest form of an uncontested divorce. To qualify the spouses must have been married five or fewer years, have no children, own no real estate, have community property of $41,000 or less, and have debts acquired since the date of marriage of $6,000 or less. The spouses must agree to the terms and conditions of the divorce, agree that neither spouse will ever receive spousal support, and they must meet the standard California residency requirements. This is a much easier process that generally does not require an appearance in court before a judge. In this routine, the spouses create an agreement about dividing assets and liabilities and file it - with a joint divorce petition and other required forms - with the court. Although the parties must wait six months before the action is final, neither spouse must appear in court as is required in contested actions.
In a contested divorce, a divorce normally follows these steps:
Finalizing the Divorce
In a California divorce, a minimum of six months transpire from the time the papers are filed until the divorce is finalized. That excludes any issues with property, children, or finances. It is not uncommon for a contested divorce to drag out much longer than six months.
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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