Getting a divorce in California is often a difficult decision, but how difficult the process is can vary depending on how much you and your spouse can come to an agreement about issues including
Getting a Divorce in California: The Difficult First Steps
The first steps that you take after that can affect not just what happens during your divorce proceedings, but possibly for the rest of your life.
Talk to an Attorney
Speaking with a California divorce attorney early in the divorce process can help you start moving in the right direction. The attorneys at the Law Office of Steven L. Fritsch offer free consultations for those who just have questions, those who are unsure they want to go through with divorce, or those who are seeking some guidance. We just want to help.
It doesn’t matter if you have decided to do an uncontested divorce, haggle with your spouse in court over property or child support, or maybe you just have not yet made up your mind. You need to sit down with a good attorney and get some good advice.
There is a lot of misinformation out there about proper court procedure in California to get a divorce. Some people think that spouses getting an uncontested divorce cannot disagree about anything, at anytime. Other people have the wrong impression of how the community property laws of California might affect their interest in the marital home.
Going to a divorce attorney that is willing to listen to your unique situation can give you the best idea of how to move forward. Maybe you and your spouse should try an uncontested divorce, where a separation agreement showing that homes, cars, child support and even custody have been approved could be a real possibility.
In other instances, an attorney with experience in broader family law issues might suggest a different path if there has been significant domestic violence in the marriage.
Or maybe there has been infidelity or other deception in the marriage. It is not unusual for a spouse who has been deceptive during the marriage to try and present information or facts such as monthly wages or assets in a manner that is less than completely candid.
Most importantly, an attorney can guide you in the right direction that works best for your particular needs and circumstances.
Who Should File For Divorce First?
Many people contemplating divorce want to know who should file first. In the eyes of the court it really does not matter. Because California is a no fault state, the court does not have to know the reason for the divorce nor determine who is to blame for the divorce. As such, the court does not care who files first.
Although the court does not care who files first does not mean that a party should not. A party may need to file first to obtain orders. For example, if one spouse is not providing financial support, there cannot be support orders made until a divorce is filed. The longer a spouse waits to file, the longer it will take to get support orders. A spouse may also want the Standard Family Law Restraining Orders (ATROs)to go into effect on the other spouse. This can only happen if one files for divorce and serves the other party. The ATROs order that children cannot be removed from California, cannot change insurance beneficiaries, and cannot transfer, conceal or dispose of assets. For example, if a spouse believes the other spouse is going to cash out a significant amount of stock or move with the children to another state, it would be beneficial to be the first to file and get the other spouse served so he or she is restrained from certain behaviors.
Finally, it may also be beneficial to file first to establish the date of separation which determines when assets and debts become separate property. Although filing for divorce does not necessarily establish the date of separation, it definitely helps support the argument for it. If there is a disagreement as to the date of separation, the court can look at when a party filed to help determine what the date of separation should be.
In sum, the court does not care who files first and will not treat the non-filing spouse any different than the spouse who files first. However, in some situations as shown above, it may be beneficial to file first rather than waiting for your spouse to file. If such a situation arises, filing first may be the right call.
Protect Yourself: Obtain a Copy of Financial Information Important to the Marriage
Whether you move forward with a contested or uncontested divorce, or even if you decide to step away from the divorce process, you need to protect yourself both physically and financially.
Every marriage is made up a variety of financial agreements, arrangements, contracts and circumstances. In most cases, any financial gain or improvement that occurs during a marriage in California is considered community property to be divided. Property obtained or purchased before marriage is typically separate property.
But sometimes the deeds, signatures and special documents that are proof of purchase and sale, or other documents can help to determine whether property is community or separate property.
So having copies of these documents can go a long way to helping you prove basic information about the assets and liability of both spouses. This helps you make certain that the final division of property is based upon the truth, and is fair to you. The documents that would be good to copy include:
- Tax returns for the last 5 years for both spouses.
- Bank account statements.
- Loan documents for house and other physical property owned (real estate).
- Copy of any loan application provided to a bank or other institution, which should show a list of assets and liabilities of at least one spouse, if not both.
- Copies of any will and/or trust documents.
- Proof of ownership documents of any other asset (boat, motorcycle, etc.)
If You Have Difficulty Resolving Important Issues with Your Spouse, Consider Going to a Mediator
A mediator is a trained professional that has been taught to use subtle, sensitive and supportive means to find common ground, and break down barriers between conflicting sides to have them reach mutually agreeable solutions.
Sometimes during divorce, it not easy for spouses to get out of a blaming mentality. It’s a natural reaction, because people that sometimes have devoted years and years to a commitment are just trying to understand how things went wrong, and easily throw blame away from themselves instead of accepting some of the responsibility.
And that‘s where a really effective mediator can be so instrumental. Slowly, they can reveal common goals that the spouses still have, and seek the little nuggets of agreement that exist within what often is a turbulent sea of anger and blinding denial.
Over time, a mediator can help to dissolve the negative feelings that can prevent spouses from moving along that necessary line, from point A to point B that allows them to rationally divide the assets and liabilities, custody and child support of the marriage without spending years, and hundreds of thousands of dollars, fighting over a record collection.
Men Should Consider Going to Counseling
It’s just a fact that men typically don’t have the emotional support system that most women have. Really trying to dig deep and excavate core feelings about old relationships, new relationships and what went wrong are not the typical fodder heard with the guys in the garage, or during a halftime break in a division title football game.
So men should seriously consider going to counseling both before and during their divorce process has started. Problems like financial stress caused by supporting two households and alienation from kids that used to be “best buddies” can keep you up late into the evening, with no apparent solutions in sight.
Spouses on the way to being single again need to start talking about these problems, and keep an open mind to new references of understanding and agreement. Yes, it may take even months for small breakthroughs to occur.
But it can be heartwarming and strengthening to know that at the same time one relationship is ending, a stronger, more capable person who can better weather the emotional turmoil that this process can cause is coming out on the other side.
Meeting Filing Requirements
The requirements to file for a divorce in California are fairly straightforward. First, you need to meet residential requirements, which means you or your spouse need to have lived in California for the last 6 months, and in the same county for the last 3 months. The county you live in is the county where the divorce will be filed. If you don’t meet these requirements, it is wise to contact an Oceanside divorce attorney about filing for a legal separation, which does not have a residential requirement. Doing so will help protect your rights as you proceed through the divorce process, and you can file an amended petition as soon as you do meet those requirements.
In some cases, same-sex married couples can bypass residential requirements if they have moved to a state where they are unable to obtain an Oceanside divorce. In these cases, they should file in the county in which they were married. If they are also in a domestic partnership, this can be dissolved at the same time.
Filing in a No Fault State
California is a “no fault” state for divorce. The person filing simply needs to state that there are “irreconcilable differences” as they file the petition for divorce. The other person does not have to agree to the divorce, and no other infraction needs to be specified.
Filling Out the Paperwork
Filing for divorce in California means filling out several forms throughout the process. Some of these forms include
- Petition- Marriage/Domestic Partnership
- Summons (Family Law)
- Proof of Service of Summons
- Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act
- Child Custody and Visitation Application Attachment (optional)
- Property Declaration
- Income and Expense Declaration –
- Declaration of Disclosure – the cover sheet for the Income and Expense Declaration
- Schedule of Assets and Debts
In these forms, you will need to list applicable dates, children, property and debts. You will need to distinguish what you believe is community property, and what should be considered individually owned.
It tells the court of how the custody of the children has been handled previously, and if there is a current court order addressing it, as in one reached through a legal separation. The Child Custody and Visitation Application Attachment is optional, but including it will clarify your wishes regarding custody. Financial information regarding income also needs to be included. An Oceanside divorce attorney can help you get the necessary forms together and see that they are properly completed before filing them with the court. When your spouse is served with the petition and summons, he/she will be informed that there is a 30 window in which to respond.
Responding to Divorce Filing
If you’ve been served a divorce summons and petition, California law allows for the ending of the marriage even if the other person does not agree. Marriage can end 6 months after initial papers are filed in court and copies of the papers are served to you. The divorce can go through either as uncontested or contested, depending on how your spouse responds.
In an uncontested divorce there may be no response at all, and in most cases the divorce will simply go through under the conditions that were specified in the forms. They may also file a response that says that they agree to the terms. A default with agreement is another possibility. In this case, there is not an official response, but the couple has worked together to come to an agreement on any issues. Often, the two will work with a mediator in order to smooth out this process. If necessary, they may file for an extension if more than 30 days are needed to reach the agreement.
Contested Divorce
If your spouse disagrees with some of the terms you have outlined, they may file a response that contests the case within 30 days of being served. If they do contest, they must present an alternative solution within the 30-day time frame. Sometimes, this response prompts mediation proceedings, and other times a judge will decide on the issues in court.
Petition for Dissolution of Marriage
If you are submitting a petition for dissolution of marriage in California, you must meet certain residency laws. Generally speaking, you or your spouse must be living within the state at least six months before filing, including three months in the county in which you will be filing. Please note, however, that there are slightly modified requirements for same-sex couples.
Once the petition has been submitted, your spouse has 30 days to respond, though the court might decide to extend this period. Typically, you can expect a six-month wait from when the papers were served to the divorce actually becoming official, during which time it is expected that both parties will come to agreements on major issues such as property ownership and custody.
Petition Forms & Paperwork Involved
The state requires that you fill out many different forms to complete your petition, and the local county court system will probably supply you with additional forms as well. To start the filing process, you will need to visit a regional center in your county.
For example, in San Diego County, where the Law Office of Steven L. Fritsch is located, there are four regional offices in which you can start filing the petition. The specific forms involved are the incredibly lengthy Dissolution Packets (~50 pages for each packet) that cover everything from property and financial declarations to custody information sheets. There is also a number of local family and children forms you may need to complete based on the circumstances.
Possible Causes for Delay
In California, six months is the standard wait time you can hope to expect before settling things officially, but there are a number of items that could come up during the petitioning process that might delay your case even longer.
For instance, if you have children and are unable to agree to a custody plan with your spouse at the time you file for divorce, the state of California will actually require that you undergo custody mediation. On a related note, failing to explicitly define beforehand how property is to be divided will, more often than not, lead to messy situations and definite delays. While this is obviously a difficult prospect during an acrimonious divorce, you must still keep this fact in mind nonetheless.
The Importance of the Date of Separation
In every California divorce or legal separation proceeding, the “date of separation” must be determined. In many cases, there is no dispute as to the date of separation and the parties simply agree to a date. However, in some cases it is a point of contention and can result in extensive litigation. In cases where there is a dispute as to the date of separation, the court can bifurcate the issue which means there is a separate trial to determine the date of separation.
Why is the date of separation so important?
The quick answer is that it shows when the marital relationship ended. This date is needed in dividing assets and debts and is relevant to the issue of spousal support. Without a date of separation, resolution of those issues cannot occur.
The community property presumption states that any asset obtained during marriage and any debt incurred during marriage is presumed to be a community asset and debt. Therefore, the date of separation plays a significant role in whether an asset or debt is separate property or community property. In most cases, if an asset or debt is obtained after the date of separation it likely will be separate property. This can have a significant financial impact on the parties. For example, if one spouse received bonus money after the date of separation, the court could rule that the money is the sole and separate property of the spouse that received the bonus. Also, credit card debt may be incurred close to the date of separation and when that date is determined will cause either one or both spouses to be liable for the debt.
The date of separation is also important regarding spousal support. More specifically, in determining the length of marriage. If the marriage is short term (under 10 years), spousal support is generally payable for one-half the length of marriage. If the marriage is one of long duration (over 10 years) the court will not set a termination date. Therefore, one can see the importance of the date of separation if one party says it is a nine year marriage and the other spouse says it is 10 years. The financial impact is great.
How does the court decide what is the date of separation if the parties cannot agree?
The court will determine the date of separation is when either or both parties perceive their relationship is over. They will look at the parties’ words and actions together which must be simultaneous. In re Marriage of Harden (1995) 38 CA4th 448. The Harden rule did away with the outsiders view (In re Marriage of Baragry (1977)) 73 CA3d 444) or how an outsider would perceive the marriage. In other words, the courts will look at all the facts as an aggregate to determine the date of separation. The courts will look at factors such as: has a party moved out, are they having marital relations, do they still meet and have dinner or travel together, do they file joint tax returns, do they have joint bank accounts or do they give each other gifts. However, not one factor is determinative. For instance, a spouse that has moved out and is dating a third party may still be considered married if other factors are present that show that the marital relationship exists.
As you can see, the date of separation is an important issue in divorce and legal separation. In some instances the financial impact of the date of separation can be great. For this reason it is important to address the issue and ensure that it is accurate; otherwise, it could be very costly.
Working With an Oceanside, California Divorce Attorney
During each step of the divorce, a divorce attorney can help review forms and help with any mediation needs or suggest other steps you may want to take, such as finding character witnesses. A divorce attorney can help prepare necessary paperwork. Missing paperwork. or asking for something that appears to be one-sided or unfair may delay the divorce process.
When the process is complete, the county clerk mails the Judgment and Notice of Entry of Judgment to each spouse to keep for their records.
After Divorce Is Final
After Divorce Is FinalThere are still things to do after the divorce is final. You may want to
- Update beneficiary information on life insurance or will
- Close joint credit card accounts, open new ones in your own name
- Inform employer of marital status change
- Settle any change of ownership with vehicles
- See if you are qualified for “innocent spouse relief” on any outstanding California or Federal Taxes
Most people that are seeking a divorce will consult with an attorney or multiple attorneys to see what their rights are, how assets and debts will be divided, how custody and visitation will be decided and estimates on child support and spousal support. This is a smart thing to do because you do not want to go into such an important and life changing event that will have such an impact on your future. However, once the divorce judgment is entered the planning should not stop. In fact, since you know how the assets and debts are divided and you know what child support or spousal support has been ordered, the planning should really begin again. This article will give some suggestions of areas that need additional attention after the judgment has been answered.
Spousal Support
The first thing to know about spousal support is the tax consequences. Unlike child support, spousal support has tax consequences for both the payor and payee. Spousal support is income to the person receiving it so it is taxable. That means, if you are receiving spousal support you want to make sure that you will not owe at tax time and if you do that you keep money aside for payment of taxes. As such, it is smart to consult with a tax specialist to determine the tax consequences for the amount of spousal support you receive. For people that are paying the spousal support it will be tax deductible for you.
If a Gavron Warning was issued which is in most cases you want to make sure you are doing what you can to become self-supporting. Every divorce is different so there is no bright line rule on how much time or what needs to be done to satisfy the requirement. Obviously, if you have been a stay-at-home mother for 25 years, taking care of 3 children, the circumstances will be different than a spouse who has been married 10 years, with no children and worked for most of the marriage.
Lastly, if there is a termination date for spousal support you want to ensure that you have employment. Although courts can extend spousal support, it is again on a case-by-case basis and is generally tough to do. For example, if you have been married 4 years and are receiving spousal support for 2 years, it will be extremely difficult for you to extend it even if illness or termination of employment occurs.
Child Custody/Visitation
“Co-parent, co-parent, co-parent!” This is extremely important. Your children will benefit if both parents are co-parenting and WILL suffer if you are not. If you have not taken a co-parenting course I would take one. Unfortunately, if you have to go back to court and modify custody, you need to know if there is a Montenegro Order. If there is a final custody order ( Montenegro Order) than a significant change of circumstances must be found to modify custody. If there is no final custody order than “best interests” standard applies. Lastly, parents should keep a calendar regarding visitation so if you do go back to court you can remember when you had visitation and any issues that arose during visitation. Keeping a calendar is a great way to remember.
Trust and Estate Planning
You and your spouse may have had a trust or will when you were married but those were likely terminated during the divorce proceedings or did so as a result of the judgment. As such, the divorced spouse needs to address estate planning all over again. It is even more important because if you die, you do not have a spouse who would likely receive the assets. Therefore, you want to ensure that either your children or someone else gets your assets as you want them to receive them. If you received real property as a result of the divorce you should strongly think of drafting a trust. Although the cost may seem high to create a trust, the cost that your estate saves when you pass is astronomical.
Are Terms of the Judgment Satisfied
Make sure you are satisfying all the terms and obligations of the judgment and marital settlement agreement. If you have questions, than go back to the attorney you had or seek consultation from one to ensure you are doing what you are suppose to be doing. Judges can be very hard on people that have not performed their obligations under the judgment or marital settlement agreement. This can be very costly.
QDROS
If a retirement plan such as a 401k needs to be divided it will need to be done by a Qualified Domestic Relations Order. Court and Marital Settlement Agreements will sometimes have specific language stating what needs to be done and who needs to pay for it. However, QDROS are not created by themselves so parties need to be on top of it to ensure they get done. Most family law attorneys do not draft QDROS which means you will have to go to a company that specializes in them. This will cost additional money.
Prenup
If you get married again it may be beneficial to have prenup. Second divorces do not get easier but chances are you may have more assets coming into the second marriage or just do not want to go through the division of assets. Prenups are probably the most difficult topic to bring up to your fiance but it can be the smartest thing you ever do.
Although the above is by no means an exhaustive list but hopefully it is food for thought for life after the divorce judgment. Being prepared is never a bad thing so ensure that you are for life after the divorce.
If you are considering filing for divorce in California or need advice on how to respond to a divorce summons, contact Oceanside divorce attorney Steven L. Fritsch. We can help you get through the process with as few complications as possible.
Alternative Divorce Options
Depending on the circumstances behind your divorce, you may feel compelled to see your case all the way to court. However, there are alternative options for those looking to get on with their lives as quickly as possible. An uncontested divorce is typically the best option here. Much faster and easier to perform than court system counterparts, an uncontested divorce is used when both parties have agreed to terms and are ready to move forward.
It should still be said that even an uncontested divorce requires you to wait six months before the divorce is official. This is set by the state of California in the hopes that troubled couples attempt to reconcile.
Filing a Summary Dissolution
An even simpler process is to file a summary dissolution. This is designed for couples without children who have only been married a few years and own little to no real estate or property. In a summary dissolution, both parties will divide any property they own and submit a divorce petition together. The waiting period is still six months, but this is the most streamlined option.
Get Help from a Divorce Attorney
Keeping track of all the legal paperwork involved in even the simplest separations can often be too much to bare for individuals still overcoming the emotional shock of a divorce. This is where the Law Office of Steven L. Fritsch can help. By contacting one of our representatives for a free case evaluation, we can look to put your life back on the right track right away.
