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California Divorce Law Information
One of the most difficult things a person will face is the dissolution of their marriage. It is not only a highly emotional and most often extremely painful event in a person’s life, it is also a legal proceeding, subject to the state laws, higher court decisions and local court rules.
To obtain a divorce in California, you must actually file a civil lawsuit. It is called a Dissolution of Marriage proceeding. The person bringing the action is called the “Petitioner.” The other spouse is called the “Respondent.” These titles remain throughout the case. You and your spouse are the only parties to the case, unless some third party is later joined. The most common joinder involves retirement benefits. Although it is not extremely common, necessary third parties can be joined if you can convince the Court that person is necessary to the proceeding. Once the case has been filed, either you or your spouse can request the Court to make temporary orders, which may include issues regarding custody and visitation, spousal (also called alimony) and child support, control of property, restraint on conduct and attorney fees.
In California, a married couple has a fiduciary relationship no different from two partners in a legally formed business. The resulting duties to the other spouse are considerable. Both you and your spouse must make full and complete disclosures regarding assets, debts, income and expenses. Once the divorce action has been filed with the Court, you each may be prohibited from certain transactions, including but not limited to disposing of property, changing or dropping insurance coverage and beneficiaries. How the judgment is obtained usually is determined by a variety of conditions, which may include the complexity of the case, but what is more important, the willingness of the parties to resolve the matter in a fair and equitable way. The more willing the parties are to reach a fair settlement; the less likely they will have to have their matter referred to trail. These decisions will obviously affect the costs associated with your divorce. Once the matter is concluded, by either settlement or trial, somebody will have to prepare a document called a Judgment for Dissolution of Marriage. This is your final divorce decree and will spell out all the terms and conditions relating to your divorce.
California is a “no fault” state. Therefore, either you or your spouse must only prove that “irreconcilable difference” have occurred. This is established by one of the spouses testifying to the fact that they no longer want to be married and nothing will change their mind. Simply stated, any person can obtain a divorce in California that wants one, even over the objection of your spouse. Determining where to file your case can be a very important consideration. To file a case in California, you must be a resident of California for at least six months. In addition, you must have lived in the county where you file your case for at least three months.
One of the most common questions people ask our office is "how long will it take for me to be divorced?” For many people, it takes a significant period of time to make the decision to seek a divorce. Before filing for divorce, it is common for people to seek counseling, help from family, friends or in some cases the church before they decide to end the marriage. I have found that once the decision is made to end a marriage, that person wants it over yesterday. Unfortunately, it usually does not happen that fast. In California, you cannot become a single person any sooner than six months plus one day after the Petition is served. In most cases, however, it may take more time to finalize your divorce. This will again depend on the complexity of the case and the willingness of you and your spouse to try to reach a fair and equitable settlement. California also allows for two other types of judgments that will terminate your marriage. You can seek either a “Judgment for Legal Separation” or a “Judgment of Nullity.” A legal separation is similar to a divorce, except the “marital status” of you and your spouse does not end. In a legal separation, you can obtain orders regarding the children, property division, support and any other orders that are available in a divorce case, including the restoration of your former name. The main difference is that you and your spouse are still “married” persons. To obtain this type of judgment, both you and your spouse must agree. If either of you want a divorce instead of a legal separation, the Court will grant a divorce. A “Judgment of Nullity” is a little more complicated. A judgment of nullity basically says that you were never married. Your marriage is considered void or voidable, depending on the reasons you seek the nullity. There are several statutory reasons you allow for a nullity, but I have found that the fraud is the most common. A nullity may be appropriate for you in several situations. If you believe you may want to explore this option further, discuss it with your attorney. Unlike other civil judgments, under certain circumstances, you can go back to Court after your divorce is final and ask the Court to modify certain aspects of your judgment. The most typical provisions of your judgment that may be modified have to do with custody, visitation and support issues. To seek modifications, however, you generally must show that there has been a significant change in the circumstances since the time the judgment was filed with the Court. Another common question I receive is after a Court grants a judgment, how do I enforce it? Under California law, there are several ways to enforce a judgment. These options will depend on the type of order and the circumstances surrounding the failure for compliance. It is best to discuss these issues specifically with your attorney. This is just a brief overview that we hope will help in understanding the very basic issues that may arise in your divorce case. Each divorce case presents different and difficult challenges. No two divorces are the same. Your matter will bring its own facts, circumstances and challenges that will be unique to your case. For additional information regarding these very difficult issues, please feel free to contact our office.