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.
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.
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.
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
There 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
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.