If you’ve never experienced it before, divorce can be an intimidating process. Between filing the correct forms, locating documents, and keeping track of deadlines, there’s a lot to remember, and, without help, the journey can quickly become overwhelming.
To help you out, this article will walk you through the basic steps of how to get a divorce in California, and how the lawyers at Maples Family Law can make this process easier for you.
If you want a divorce, one of the first things you’ll need to do is make sure you meet the residency requirements at both the state and county levels.
In order to file in California, you will need to have lived in the state for at least 6 months. For residents of San Joaquin county, the requirement is three.
If you’ve fallen short in either of these categories, you don’t need to worry. There is a lot of busy work that needs to happen before you file, anyway. While you wait, discuss your situation with a family law attorney, who can make sure you have all the necessary information on hand to hit the ground rolling.
Regardless of what documents are required for your, individual case, two important dates you will certainly need are your: 1) date of marriage; and, 2) date of separation.
These dates are important, because they’re used to help determine your interests in marital property.
California is a community property state. This means that all assets acquired after marriage belong to both of you equally—regardless of whose name is on the paycheck, account, or card. Unless you have a valid prenup saying otherwise, this shared interest continues up until the time of separation.
Determining your date of separation is much simpler, if you and your spouse had a legal separation. Those couples who didn’t make separation official will need to comb through emails, texts, and other informal documents to prove this date to a judge.
Another thing to consider before filing, is whether or not you’ll need a temporary order.
Temporary orders are provisional (meaning, they have a set expiration date), and can be used to prohibit certain behaviors or dictate responsibilities while your divorce is pending.
These can be tailored to meet your individual needs, but are often used to:
- Dictate parental responsibilities, such as child support, custody, and visitation;
- Require spousal support payments; and even,
- Outline living arrangements and the bill-paying responsibilities of each spouse.
Temporary orders can be especially useful for those who might be worried about spousal retaliation. In these scenarios, a temporary order can prohibit your spouse from emptying bank accounts, destroying property, and fleeing across state lines with your children.
If physical retaliation is a concern, a Domestic Violence Restraining Order would likely be more appropriate. If the threat of harm is immediate, your attorney may be able to request an Emergency Protective Order on your behalf.
If you are experiencing abuse or domestic violence of any kind, remember that keeping yourself and your children safe is paramount to everything else.
After your paperwork is complete, you will need to take your documents to your local family court to file them, and to pay the associated fees. In California, the filing fee for an original petition of divorce is $435.
If you are trying to execute a D.I.Y. divorce, this fee will be your responsibility. Those who utilize an attorney, however, do not need to worry about these technicalities. When you hire a lawyer, they are in charge of making sure all the necessary paperwork is filed on time, and that fees are paid (the amounts of which will be deducted from your retainer).
Serve Your Spouse
Once divorce has been initiated, the next step is to notify your spouse—and this cannot be done with a simple phone call or text message. Proper notification (or “service,” as is the legal term), is done by giving physical copies of all paperwork to your spouse, in person.
As a party to the case, however, you are not allowed to serve divorce papers on your spouse. Other than that, though, the requirements are pretty open, meaning it’s usually not necessary to hire a professional process server.
For service to be proper in California, your server must be:
- At least eighteen;
- Not affiliated with the case;
- Serve papers within sixty days of filing;
- Fill out a Proof of Service form; and, finally,
- Deliver the Proof of Service to you, so that your attorney can file it with the court.
Failing to complete proper service could put your case in danger of dismissal.
If you are unable to meet the sixty-day timeframe, your attorney can request more time. This extension is often needed by spouses who have been abandoned, and don’t know how to locate their partner. In these situations, the court will sometimes make an exception to in-person delivery, and allow you to utilize another method of service.
Waiting for a Response
Assuming you have executed proper service, your spouse will then have thirty days to respond to your petition. To this end, their options are:
- True Default—do nothing, by not engaging or responding to your petition at all;
- Uncontested Divorce—do nothing, because you already have a written, notarized agreement outlining your terms;
- Respond in Agreement—file a response with the court, confirming agreement with your proposed terms; or,
- Respond in Disagreement—file a response with the court contesting your proposed terms.
It is almost never a good idea to allow your case to default—even if you do not want the divorce to happen. Refusing to engage will not stall out proceedings. Instead, the court will simply grant the divorce as though you had agreed to all the terms.
Needless to say, this is almost never in your best interest.
During this thirty-day period, you and your spouse are also free to work out a settlement—either between yourselves, or through mediation. If successful, you can submit a marital settlement agreement with the court, which will then become your official divorce order.
When Issues Can’t Be Resolved
Those who are unable to reach an agreement must engage in litigation.
Divorce litigation is a traditional court trial, where both sides are represented by an attorney, evidence is presented, and the issues are decided by a judge. Litigation is by far the most expensive, time-consuming, and least flexible way to secure a divorce. So it’s usually a good idea to at least try to settle, before proceeding to trial.
If you are planning to remarry after your divorce, keep in mind that in California, you are not considered to have reached “single status” until six months and one day from the time of service.
If your divorce has not been finalized within this time, you can file a Single Status Affidavit with the court, which will allow you to proceed, in lieu of a final judgment.
Naturally, you are not automatically divorced, just because six months have passed. In all cases, you will still need to either resolve issues amicably with your spouse, or through the court.
Divorce Lawyers in California
Divorce isn’t simple, which is why so many people choose to hire personal representation. Armed with education and experience, an attorney can guide you around major pitfalls, handle tedious paperwork, and ensure your best interests are being protected at all times. Freeing up your mental energy, so that you can channel it where it’s needed most: your family.
If you have more questions about Divorce in California, and how this process might apply to your situation, we want to hear from you. Call us at (209) 989-4425, or get in touch online, and let the team at Maples Family Law help make this process a little easier for you.