1. What are grounds for a divorce in the State of California?
2. Is there a simplifier way to get a divorce?
- Yes. California has a process called summary dissolution. If you qualify for a summary dissolution, you will have less paperwork to file and you will not have to appear in court. You may be eligible for such a process if you and your spouse have agreed in writing to a division of your assets and debts and if the following conditions exist:
- You have been married for five years or less.
- You have no children from the relationship.
- Neither of you own a home or other real estate.
- The value of all community property amounts to less than $25,000, excluding automobiles.
- The value of either party’s separate property amounts to less than $25,000, excluding automobiles.
- Your combined debt does not exceed $4,000, except for an auto loan.
- Both of you waive spousal support.
- Both spouses must agree to all of the terms of a summary dissolution. Also, either of you can cancel it for any reason before the dissolution is final. Further information on this simplified procedure may be available at your local court or on the California Courts website (courts.ca.gov).
3. How do I file for a divorce?
- To obtain the proper forms, purchase a dissolution form packet for a minimal fee from the clerk of your county’s superior court. Or, go to the California Courts website (courts.ca.gov). You or your lawyer or mediator will have to prepare a Petition and a Summons. You begin the process by filing your Petition and Summons with the clerk of the superior court in the county where you or your spouses live. You will have to pay a fee to file these papers unless you have a very low income and qualify for a fee waiver.
- Copies of the Petition and Summons, and a blank Response, must be officially delivered (or, in legal terms, served) to your spouse by someone other than yourself who is over the age of 18. The Summons is a paper that notifies your spouse that you are filing for a divorce and that he or she has 30 days in which to file the Response.
- In the Response, your spouse then indicates what needs to be resolved by the court. For example, he or she might object to your request for spousal support or sole custody of your children.
- After you file, the following steps may occur:
- Disclosure: You will have to complete disclosure declarations that provide information about your income, expenses, assets and debts—and have them officially delivered to your spouse. (The court will later require proof that you served your spouse with a Final Disclosure Declaration, unless it is waived.)
- Temporary orders: You or your spouse may ask for a hearing so that a judge can decide any temporary child custody, visitation, support, requests for attorney fees or restraining order disputes. Such hearings are called Order to Show Cause hearings.
- Agreement: You and your spouse (and your mediator or lawyers, if you have any) will work on permanently resolving the issues raised in the dissolution. If you reach an agreement, you may not have to appear in court and a judgment based on your agreement can be entered. You will have to submit a sworn statement to the court saying that the marriage is ending because of irreconcilable differences.
- Trial: If you are unable to reach an agreement, you and your spouse will appear in court for a trial in which a judge will make the decisions.
- Default: If your spouse does not file a Response, you may request a default and proceed to a default hearing to obtain a judgment. You will be asking the court to enter a judgment consistent with the requests in your petition.
- Judgment: A judgment can be entered at any time, but you would not be divorced until at least six months after your spouse was served with the petition. The court does not automatically end your marriage when the six months have passed. You cannot legally remarry until you obtain a judgment even if the six months have passed. If you want to remarry or have some other reason for wanting to be single at the end of six months, a judge can dissolve your marriage even though some property or other issues are not yet settled.
- Not all of these steps will be necessary in every case. For example, you may simply reach an agreement and get a judgment without the need for temporary orders of any kind.
4. How do I get all the information about our property and finances from my spouse?
- There are several legal procedures. For example, you (and your attorney, if you have one) might take depositions (interview your spouse or other witnesses in person under oath), send interrogatories (written questions) or submit an Inspection Demand (a request that your spouse turn over certain important documents).
- To gather information from others (an employer, bank or school, for example), you might have to subpoena them to appear with the documents in court or at an attorney’s office.
- Or, you may choose to rely on the disclosure declarations (see #6) that you and your spouse are both required to fill out.
5. How do we divide the property?
- California law recognizes that both spouses make valuable contributions to a marriage. Most property will be labeled either community property or separate property.
- Community property. All property that you and your spouse acquired through labor or skill during the marriage is, at least in part, community property. You and your spouse may have more community property than you realize. For example, you may have an interest in pension and profit-sharing benefits, stock options, other retirement benefits or a business owned by one or both of you. Each spouse owns half of the community property. This is true even if only one spouse worked outside of the home during the marriage-and even if the property is in only one spouse’s name.
- With few exceptions, debts incurred during the marriage are community debts as well. This includes credit card bills, even if the card is in your name only. Student loans are an exception and are considered separate property debts.
- Community property possessions and debts are divided equally unless you and your spouse agree to an unequal division-or unless there are more debts than assets. Keep in mind that if your spouse agrees to pay a community debt and fails to do so (or files for bankruptcy and discharges the debt), you may have to pay the creditor.
- Division of possessions and debts can be complicated. You should seek legal advice before entering into any such agreement. And if you have already signed away your rights to certain property, consult an attorney to find out if you are bound by the agreement. Finally, if you and your spouse cannot agree on the division of your debts and possessions, a judge will make the decision for you. He or she may not split everything in half; instead, the judge might give each of you items of equal value. For example, if your spouse gets the furniture and appliances, you might get the family car.
- Separate property. Separate property is property acquired before your marriage, including rents or profits received from these items; property received after the date of your separation with your separate earnings; inheritances that were received either before or during the marriage; and gifts to you alone, not you and your spouse. Separate property is not divided during dissolution. Problems with identifying separate property occur when separate property has been mixed with community property. (The community may acquire an interest in separate property over time.) However, you may be entitled to receive your separate property back even if it has been mixed. There are complex tracing requirements where property has been mixed. Debts incurred before your marriage or after your separation are considered your separate property debts as well.
- You will be required to file proof that you delivered your spouse a list of all of your community and separate property, and your income and expenses, which is attached to documents called the preliminary and final declarations of disclosure (see #6). Determining the character of property can be complicated and mistakes can be costly. Obtain legal advice to make sure that your property is correctly listed as community or separate.
6. What is spousal support (alimony)?
- Spousal support (also known as partner support for registered domestic partners) is the term for alimony in California. Spousal support is money that one spouse pays to help support the other after the filing of a dissolution. Usually, the spouse receiving such support will pay federal and state income taxes on it, and the one making such payments will be entitled to a tax deduction. Consult with a lawyer to make sure the orders are drafted correctly or you may not be entitled to the deduction.
- To determine the amount of spousal support, the judge will consider such factors as the standard of living during the marriage, the length of the marriage, and the age, health, earning capacity and job histories of both individuals. If the marriage lasted less than 10 years, it is unlikely that a judge will order spousal support for longer than half the length of the marriage.
- Perhaps neither of you needs spousal support. Since circumstances can change (you could become ill, for example, or lose your job), you may ask the judge to reserve jurisdiction to order spousal support in the future. (The judge will be more likely to do this if your marriage lasted 10 years or close to it.) This will leave the door open so you can ask for such support at a later time. Under certain circumstances, you or your spouse may go back to court and ask the judge to change the amount of support. The judge also can order a wage assignment directing a spouse’s employer to pay spousal support.
7. What happens to the children?
- You can determine what happens. The best solution for the children is for the parents to reach an agreement on who will take care of them. If you and the other parent agree on a parenting plan, you should attach a copy of the plan to the dissolution papers. Your parenting plan can become a court order; in most cases, a judge will approve a custody plan agreed upon by both parents.
- You and the other parent are both responsible for supporting your children if they are under age 18. And this duty may extend beyond age 18 if certain conditions are met. In addition to child support, parents may be required to pay other expenses for the children, such as child care, medical care and/or travel between households.
- The amount of support to be paid by one parent to the other is based on established guidelines. Computer programs are available for helping parents determine who will pay such support, and how much is to be paid. Significant factors include each parent’s income and the amount of custodial time each of you spends with the children.
- Such support need not be reported as income for federal and state tax purposes, and the parent paying such support is not entitled to a tax deduction.
- You may request a wage assignment order. This is an order that requires a parent’s employer to make child support payments directly from the parent’s wages.
8. What if we cannot agree on custody?
- If you and the other parent are unable to agree on custody or visitation, a judge will make the decision for you. There are several steps to finalizing a custody plan. However, custody and visitation can be decided on a temporary basis if there are immediate problems. For example, a new school year may be approaching and you cannot agree on a school for your children. Or, one parent intends to move and wants to take the children along. (Keep in mind that you may not be able to prevent such a move unless you typically spend a lot of time with your children.)
- Before any hearing or trial involving child custody or visitation, both parents are required to meet with a trained counselor hired by the court. The counselor will try to help you agree on a custody and parenting plan. These sessions are arranged through Conciliation Court or Family Court Services, and are held in private offices located in or near the courthouse. In some counties, the assigned counselor will submit a recommendation to the judge even if you and your spouse did not reach an agreement. In other counties, these sessions are entirely confidential and the counselor can only report agreements reached by the parents. You should inquire about the rules in your county.
- Depending on the nature of the custody dispute, the judge may order a psychological evaluation of the family as well, and may appoint an attorney to represent the children. If a psychological evaluation is ordered or an attorney is appointed for your child, you and the other parent may be required to bear all or part of the cost.
9. What options does the judge have in granting custody or visitation rights?
- The judge may give custody to one or both parents, or, in some cases, to another adult based on the best interests of the child. Considerations include the child’s health, safety and welfare, as well as any history of abuse by one parent. For custody to be awarded to someone other than a parent, however, the judge would have to believe that giving custody to either parent would be detrimental or harmful to the children.
- Joint legal custody. The parents share the right and responsibility to make important decisions about their children’s health, education and welfare. Such decisions might include, for example, where the children will attend school or whether they should get braces on their teeth.
- Sole legal custody. One parent has the right to make decisions related to the health, education and welfare of the children.
- Joint physical custody. The children spend time living with each parent on a regular basis. This does not mean, however, that the children must spend equal amounts of time with each parent.
- Sole physical custody. The child lives with one parent and the other parent has visitation.
- Try to keep in mind that the actual time spent with your children may be more important than the legal terminology used to describe the arrangement. Also, the specifics of such custody orders can vary. For example, a judge who orders joint legal and physical custody may name one parent as the primary caretaker and one home as the primary residence. Or, a judge might order sole physical custody to one parent and supervised or no visitation to the other if it appears that a parent may present a threat to the child’s welfare or safety. In addition, stepparents and grandparents may be given visitation in certain circumstances. Be clear and specific in writing your parenting plan.
- Law enforcement may help you enforce a custody or visitation order, if necessary. You will need a certified copy of the order. Or, if you are unable to locate your child, you may seek assistance from your local district attorney. The person violating an order could possibly, at your request, be found in contempt of court. If the other parent won’t obey the order and these suggestions don’t work, you may want to consult an attorney.
- It is important, too, to remember that your custody plan can be changed if it doesn’t work. If your circumstances change, you can return to court and request a change in the parenting plan even if a temporary or permanent order has already been established. The same procedures discussed in question #12 would apply to such a request.
- Or, if you and the other parent can reach an agreement, you may submit it to the judge and ask for a court order. Judges often approve changes even without a hearing if you both request them.
10. Does the judge consider the children’s wishes?
- It depends. The judge must consider what the child wants if the child is “of sufficient age and capacity to reason.” Children age 14 and older are also entitled, if they desire, to express an opinion about custody issues to the court. In either case, however, the judge is not required to follow the child’s wishes.
- It may be difficult to determine the child’s true wishes if one or both parents have coached the child. Most often, children don’t want to hurt either parent. Avoid trying to persuade your child to choose you over the other parent; this puts a tremendous emotional strain on the child. The court mediator or other evaluator may meet with the child to help convey the child’s real desires.
11. Do I need a lawyer?
- The short answer is no. That being said, property settlements, support and child custody disputes can be very complicated. A lawyer can tell you how a judge may divide your property and help you put your property settlement agreement into writing. A lawyer can help you understand your rights and duties concerning your children. A lawyer can assist you if an unexpected problem comes up. And a lawyer can advise you on how much money, if any, you should pay or receive for spousal or child support.
- Lawyers who handle dissolution and custody cases are called family law attorneys. Some are “certified specialists” in family law. This means that they have met the State Bar’s standards for certification. Keep in mind, however, that there are lawyers with experience in family law who have not sought such certification.
- In addition, there are alternatives to hiring a lawyer who will represent you throughout all stages of your divorce. You could, for example, choose limited representation instead—hiring an attorney who will assist you at particular stages of your divorce. Whether this would be a good option for you could depend on the complexity of your case and your financial situation. Generally, limited representation involves less cost.
- While some attorneys will not work solely on portions of a case, others will agree to act as collaborative attorneys or consulting attorneys (also called coaches or providers of unbundled legal services).
- Collaborative attorney. The role of a collaborative attorney is to work with you, your spouse and your spouse’s attorney towards the goal of reaching a settlement on all issues. This could involve exchanging necessary information, selecting common experts and focusing on negotiating family issues in a cooperative, informal manner. Because collaborative attorneys will not represent you in court on any unresolved issues, you and your spouse must agree initially to retain new attorneys if you need to go to court to resolve remaining issues.
- Consulting attorney. The role of the consulting attorney, unlike a collaborative attorney, is to assist you on a limited basis. A consulting attorney does not take on full responsibility for overseeing or handling your case. The limits of the representation are set by agreement. You should make sure that you understand the extent of the attorney’s services. Such services might include, for example, helping you to develop a negotiation strategy, teaching you how to present an argument in court, accompanying you to mediation or “signing off” on any agreement.
- Or you might consider hiring a lawyer who can act as a neutral mediator between you and your spouse. A lawyer/mediator can provide you with legal information, as well as some creative alternatives for handling your divorce (see #18). This is not a substitute for legal advice.