Divorce in California does not always have to involve long trails of paperwork and countless court dates. If a divorce is uncontested, parties can in many cases fill out a simple group of documents, wait six months and get a divorce judgment handed to them by the court.
But before anyone assumes that the process takes care of itself and can be casually completed, the State of California has certain restrictions and guidelines. These safeguards help to guarantee that only parties that have truly reached agreement on all important matters can get an uncontested divorce in California.
So even if the parties have separated their small bank accounts between themselves, divvied up the furniture and driven away their chosen cars, the agreements have to pass muster with the court by addressing all issues, and it has to be fair.
And divorcing spouses should always consider the actual opportunity they may be giving up by pushing for an uncontested divorce. It very well may take an extensive consultation with a qualified attorney to really understand exactly what rights you have, and what rights you are giving up.
Are you turning away from your fair share of a retirement plan? Was there a financial recovery from an auto accident during the marriage where one spouse kept all of the proceeds? These are important answers to know.
What is the Definition of “Uncontested?”
An uncontested divorce in California begins with the idea that there will be no disagreement between the spouses on any major issue. However, in California, there are several different ways that a divorce can move forward as uncontested, where the court is only presented with documents suggesting the parties agree on all issues.
The different avenues to obtain an “uncontested” divorce in California essentially are tied to the amount of assets, liabilities and other legal entanglements remain in the marriage: 1) an “uncontested” divorce, 2) a summary dissolution of marriage/simplified divorce.
Uncontested Divorce Process
In an uncontested divorce, there is no limit to the amount of assets, liabilities, or child-related issues, just as long as all issued are agreed.
However, the process to get an uncontested divorce is never intended by most states to be too easy. Like all legal matters, there are required steps that line the path all along the way, which if skipped or delayed can mean the difference between walking away in six months with a judgment of divorce, and having to start all over again. The following general guidelines must be followed:
- At the time the uncontested divorce petition is filed, at least one spouse must have lived in California for at least 6 months.
- The spouse filing the uncontested petition must be a resident of that county for a minimum of 90 days before filing.
- A summons must be filed with the Uncontested Petition for Divorce, which must be served either by a law enforcement officer or a private process server. If one spouse gives the notice to the other spouse, that is not good enough.
- If a spouse is served but does not respond within 30 days, the filing spouse can make a request to enter a default.
- At least one spouse must file a declaration of finances, which gives the court a current snapshot of the assets and liabilities of both spouses. In some cases, unless waived, a final declaration must be filed before a judgment of divorce is entered.
- If there are children, spouses must file a declaration under the UCCJEA (Uniform Child Support Jurisdiction Enforcement Act).
- Get a hearing date, which will be some time after the end of the initial 30-day summons period.
- The final agreement presented to the court must address all issues, must be fair, and any child-related support must come within state guidelines. California is a community property state, and the court will keep this in mind as completely skewered or seemingly one-sided agreements are discussed.
Summary Dissolution of Marriage/Simplified Divorce
The summary dissolution of marriage/simplified divorce track is specifically for parties that not only are certain they want to get divorced, and agree on all terms, but have little property to separate and no children.
In order to use this process, the following must apply:
- Spouses married 5 years or less.
- There were no kids were born during the marriage, no other natural or adopted kids, and wife not pregnant.
- No interests in any real estate.
- Community property not worth more than $25,000.00 (cars excluded), and community debts no more than $75,000.00.
If both spouses carefully review their financial information and qualify within these restrictions, they still have to provide the court enough information to confirm eligibility. But again, given California’s complicated system of community property, it might take the careful eye of a local attorney who can really confirm that an agreement is fair. So the following must be done:
- Both spouses must file a Joint Petition for Summary Dissolution of Marriage.
- After the initial paperwork is filed, the parties must wait six months for a finalized divorce, which is state law.
- During that 6-month period, either spouse can summarily decide to reject the agreement, or reopen the documentation for further discussion. That will essentially destroy the Simplified cases status, and return it to the basic contested case docket.
- If neither party has objected within 6 months after initial petition filed, and the court has reviewed the agreement and found it to be reasonable, then the court can issue a judgment of divorce without further hearing.
Problems and Pitfalls to Avoid in the Uncontested/Simplified Divorce Process
If you file your necessary forms and the clerk returns or does not accept them, they may have flaws you need to fix. Maybe your forms don’t have enough information, or maybe the spouses entirely left out an asset or liability to be divided. Either way, make sure the documentation is filled out completely, and all issues are addressed.
Also, the court may ask you to set a hearing date after you submit your documents. This suggests the court may have a problem with how the assets and liabilities were divided, how a parenting plan was established and whether it is feasible, or some other problem.
Key Points to Remember
Once you enter into an uncontested divorce agreement, and the court signs and issues a judgment of dissolution, it can be very difficult to modify these terms unless there is obvious fraud involved.
So moving forwards with an uncontested divorce based upon “gut” instinct or a need to physically separate quickly can be the engine that drives poor decision-making.
Sometimes the desire to be free from a bad relationship can cause spouses who will soon be divorced to make bad decisions just for the sake of a hurried-up divorce. The relief that a divorcing spouse feels who might now, finally, be free of a shared marital residence could feel the gloom of financial collapse a year later under the weight of a poor division of marital assets that was made just for the sake of expedience.
With these potential pitfalls in mind, it is usually good to speak with an attorney who has experience in these matters, to make certain any agreement you entertain is fair, reasonable, and not the product of undue acceleration and haste.