How to File for Divorce
If you’re ready to end your marriage, you’re probably wondering how to file for divorce. The process can be daunting, and with so many different ways to secure a split, it can be tough to know where to start.
Luckily, it’s not a process you have to do alone.
Here’s everything you need to know about how to file for divorce in California, and how the team at Maples Family Law can help you.
How to File for Divorce: The Process
The first think you need to know about filing for divorce in California, is that you live in a no-fault divorce state. This means that—unlike in days gone by—you don’t have to assign blame in order to break up your marriage. Furthermore, neither spouse needs to secure the permission of the other. The only requirement is irreconcilable differences.
This is a massive simplification of a process that used to turn divorce court into a circus of false accusations and perjury. In lieu of these archaic notions, couples can now obtain a divorce without subjecting themselves (or their children) to a needlessly contentious environment, creating a much healthier transition, overall.
So, now that you know fault isn’t a requirement, here are the next steps to take when filing for divorce in California.
1. Talk to an Attorney
For most people, it just makes sense to work with a lawyer. Whether you’ve been married a long time or just a little while, there aren’t very many divorce scenarios where a couple is better off by not hiring personal representation.
This is because divorce law is complicated, and on your own, it’s too easy to make mistakes and give up essential rights. Some of which can be extremely expensive—if not impossible—to reverse.
An experienced attorney can help you avoid these potential pitfalls, and guide you through complex issues like child custody, spousal support, and property division without mishap, making their services well worth added hourly expense.
In general, you should only forgo representation if you have no significant assets or debt, and don’t have children. Even then, it’s still wise to have an attorney review your uncontested divorce agreement before filing.
2. Check Residency Requirements
Whether or not you choose to hire an attorney, you will still need to meet both state and county residency requirements in order to file for divorce.
In California, you must have lived in the state for at least six months. Residents of San Joaquin County will also need to have lived there for at least three.
3. Determine Which Type of Divorce Will Work Best for You
As we mentioned above, there isn’t just one way to divorce. Indeed, contrary to what Hollywood might have you believe, a high stakes court trial isn’t the only want to secure a split. Indeed, not only can you dissolve a marriage outside of court, but it’s almost always preferable to litigation.
Some of these out-of-court methods include:
For those who aren’t quite ready for the permanence of a full-on divorce, California also allows couples to negotiate a legally-binding agreement through legal separation.
The method that’s best for you will depend on a number of individualized factors. Some of these might be whether or not you have children, how amicable your breakup is, the amount of property and debt you have, and whether or not you have a valid prenuptial agreement.
If you aren’t sure, a Maples Family Law attorney can help you determine which might be best for your situation.
4. File the Correct Forms
In order to initiate a divorce, you will need to file a petition for divorce with the court, as well as a property declaration, and paperwork about child custody and visitation.
This is where having an attorney will come in handy. A lawyer will not only make sure you have the correct forms, but also that they are filled out accurately, ensuring your divorce process isn’t held up by faulty paperwork. Your attorney will also file these documents with the county clerk on your behalf, freeing up your mental energy for more important things.
If submitting paperwork on your own, keep in mind that you will be responsible for paying for any filing fees associated with these documents.
Once tendered, the county clerk will give you (or your attorney) copies of all your forms with a stamp that says “Filed.” In addition to whatever your attorney keeps, make sure to always retain copies for your own personal record, as well.
5. Ensure Proper Service
From filing, it’s then time to tell your spouse you’ve started the legal process. Forget texts, phone calls, and snapchat, though, because telling your spouse you’ve just filed for divorce requires a little more formality than a simple Facebook message.
In California, proper service requires someone to deliver physical copies of all divorce paperwork to your spouse, usually in person, face to face (though, there are some limited exceptions). As a party to the case, you cannot be the one to deliver the paperwork, however the qualifications are pretty open, and there’s usually no need to hire a professional process server.
A qualified server must:
- Be over eighteen;
- Not a party to the case;
- Serve paperwork within the proper time frame;
- Fill out a proof of service form; and,
- Return the proof of service form to you, so that you (or your attorney) can file it with the court.
This step is essential. Without proper service, the court could potentially dismiss your whole case (another point for team “Just Hire an Attorney, Already”).
What Happens After Service
What comes after these five steps really depends how your spouse responds to your petition. For partners who are capable of constructive communication, a few sessions of out-of-court mediation is probably all that’s needed to iron out important issues. In contrast, couples with bad feelings, strongly opposing views, or vast amounts of property or marital debt might not be able to settle without a trial.
No matter what the emotional environment of your divorce is, however, once your petition has been properly filed and served, your spouse will have thirty days to respond. And—we should note—this isn’t really a deadline you want to be messing with.
Failure to Respond
Just like the state of California can’t keep you married if you don’t want to be, neither can your spouse, and failure to respond to properly served divorce paperwork won’t stall out the proceedings. Instead, it will just put your spouse in danger of defaulting.
In a default divorce, the court essentially treats your petition like an uncontested divorce, and proceeds as if your spouse had agreed to all the terms. Which is great, if you’re the petitioner, but not so much if you’re on the other end.
Hence, if you’re thinking about trying to stay married by not responding to service, think again. This tactic won’t work, and it most certainly is not in your best interest.
If you are worried about retaliation from your spouse during this thirty-day waiting period, talk to your attorney. If necessary, they can petition the court for a temporary order.
This type of order can be tailored to your situation. It can both prohibit your spouse from committing certain behavior, and set down guidelines to govern things like childcare, bills, and spousal support. Protecting you, your children, and your assets while your divorce is pending.
Do You Need to Talk to a Lawyer About How to File for Divorce?
If you are getting a divorce, give yourself a break, and let an attorney handle the stress of paperwork, processing, and deadlines. Not only can they relieve you of this stress, but an experienced family law attorney can also refer you to a therapist, offer valuable, case-specific legal advice, and much more.
For more questions about how to file for divorce in California, call us at (209) 989-4425 or contact us online, and let the team at Maples Family Law help guide you through this complex transition as smoothly as possible.