California Uncontested Divorce
This information is an overview of the uncontested California divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be 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 No-Fault divorce. It means that "irreconcilable differences have caused an irremediable breakdown of the marriage." Divorce is also granted on grounds of incurable insanity.
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. Some counties require that all forms be completed in black ink.
California 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 these requirements:
> Read the Summary Dissolution Booklet provided by the court clerk.
While there are many conditions for a simplified divorce, the procedure is simple. It works as follows:
> Both spouses file the Joint Petition for Summary Dissolution of Marriage with the county clerk.
In addition to the six-month option to change, either spouse may stop the divorce at any time during this period. The marriage ends only if after this six-month period one spouse files a Request for a Final Judgement with the county clerk on the designated form. Failure to file the Request for Judgment may result in the court dismissing the case for lack of action. After the judgment is final, neither spouse has any right to expect money from the other (except for what is agreed to in the property settlement agreement). Both spouses agree to give up certain rights each might have had in a regular dissolution, such as support, the right of appeal, the right to have a court decide any new arrangements. In the event of a change of heart -- a reconciliation or a desire to use the standard divorce procedure -- the couple can stop the action by filing a Notice of Revocation of Petition for Summary Dissolution, again in the same county clerk’s office.
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 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 asking the court to grant a 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 certified mail.
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 couple may have also already written a Marital Settlement Agreement (MSA), in which case it is submitted as an attachment.
The Summons-Family Law is the Notice of Service of Process. It is the proof of service. It stipulates the manner of service 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.
Depending on the course of the divorce, however, other forms and court papers, some mandatory and some depending on the situation, need to be filed. These may include any of the following:
> Request to Enter a Default. The Request to Enter a Default is used when 1) a spouse who has been served fails to respond within 30 days, or 2) the respondent spouse cannot be located.
If a spouse does not respond in 30 days, the petitioner may file a Request to Enter a Default, which bars the respondent from further entering into his or her own divorce case.
> Declaration for Default or Uncontested Dissolution (or Legal Separation). The Declaration for Default or Uncontested Dissolution is used when 1) the respondent spouses defaults (does not file a response), or 2) when both spouses agree on all issues.
When a couple agree on all issues, or when either defaults, the court may issue a Declaration for Default or Uncontested Dissolution, which results in a Judgment for Dissolution without a court appearance. After a summary action, an uncontested action coursing along this default route is probably the easiest route to a divorce.
> Declaration Regarding Service of Declaration of Disclosure and Income and Expense Declaration. The Declaration of Disclosure is a voluntary disclosure made by both spouses declaring all property each has, both separate and marital. The Income and Expense Declaration is a voluntary disclosure of each spouse’s incomes and expenses. Normally a preliminary and a final declaration are made, and a party may waive the final disclosure, but the preliminary disclosure must be made within 60 days of service of process. These disclosures are sometimes included with the Petition and Summons.
This form may be used in some counties when a Martial Settlement Agreement (MSA) is to be filed as part of the judgment.
> Schedule of Assets and Debts. The Schedule of Assets and Debts is a four-page form lists 1) all property, separate and community, 2) indicates who owns them, 3) lists the date of acquisition and the gross market value (gross means without the debt against it, if any), and shows the debt against any asset.
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 this regime, 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 a least five days between successive publications.
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.
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