Divorce
GENERAL DIVORCE INFORMATION
Technically, the term “divorce” is no longer used by courts or in the California Code. If one wants to legally end your marriage, the procedure is called “Dissolution of Marriage.” [Family Code Sec. 2300]
This article will use the term “divorce,” since a “dissolution,” could also refer to ending a partnership or other business as well as a marital relationship.
GROUNDS FOR DIVORCE
The only grounds for divorce in California are (a) Irreconcilable differences, which have caused the irremediable breakdown of the marriage, and (b) Incurable insanity. [Sec. 2310] Irreconcilable differences are those grounds which are determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved. [Sec. 2311] Generally, this means that if one of the spouses thinks the relationship is over, then it’s over.
"CONTESTED" AND "UNCONTESTED" DIVORCES
Divorces can be either contested or uncontested. An uncontested divorce is much quicker and much less expensive. A law firm can normally do an uncontested divorce for a flat rate. It if it contested, the legal fees can run very high.
A divorce is uncontested if the parties agree on all of the major issues and all the court has to do is approve the agreement prepared by the parties. If the court has to decide any of the issues, the divorce is then contested.
The four major points that must be decided, either through agreement of the parties or by decision of the court are:
PROPERTY DIVISION – Who gets what property and what debts?
CHILD CUSTODY AND VISITATION – Which party will get custody of the children? And when will the other party spend time with the children?
CHILD SUPPORT – Once custody is determined, how much support does one parent pay to the other?
ALIMONY – (Now known as “SPOUSAL SUPPORT.”) Whether or not children are involved, the spouse with the higher income may be obligated to pay support to the other spouse, either for a period of time, or indefinitely.
THE 6 MONTH WAITING PERIOD
In California, divorces have a six month waiting period, meaning that the earliest a divorce can be finalized in California is six months after it is started. The divorce proceeding is begun when one of the parties (called the “PETITIONER”) files a PETITION with the court, but the six month period does not begin until the other party (called the “RESPONDENT”) is SERVED (meaning the documents were handed to Respondent, or Respondent acknowledged receipt of them.)
The “Petitioner” can be either the husband or the wife. It is simply the first party to file documents with the court.
PROCEDURE FOR UNCONTESTED DIVORCES
Even with uncontested divorces, there is a fairly complicated procedure involving at least a dozen different forms that need to be completed and submitted to the court. Some people choose to do their own divorce without an attorney, and everyone has a right to represent himself or herself. However, if the documents are not prepared correctly, there can be costly legal consequences. Similarly, if there is an error early in the proceedings, it is possible that the divorce may have to be started all over again, requiring an additional six month waiting period.
Normally, if an uncontested divorce is done correctly, neither party will actually have to appear before a judge, or even go to the courthouse. All of the documents can be prepared by the attorney, signed by the parties, and then submitted to the court by mail (or in some counties, electronically).
PROCEDURE FOR CONTESTED DIVORCES
If there are children involved, and the parties have not agreed on custody, visitation and support, usually the Petitioner will, at the same time as filing the petition or shortly thereafter, schedule a court hearing asking for a court order establishing temporary custody, visitation and support while the action is pending.
There can be many more hearings after the first one, and contested divorces can last for quite some time – either until the parties reach an agreement on the four major issues, or until the matter goes to a final trial and the court enters a decision.