It is often repeated that “nearly half of all marriages end in divorce.” While the rate is somewhat lower for first marriages, the likelihood of divorce increases for second, and third marriages. There may come a time in a marriage where a couple contemplates getting a divorce. There are several options and factors to keep in mind for those considering a divorce or legal separation. There are several factors that can lead to a divorce including among them financial problems, infidelity, getting married for the wrong reasons, substance abuse, conflict, or domestic abuse.
When a person is contemplating divorce, there are several steps that should be taken. A key step is preparation and understanding how the process works. This step can include visiting a self-help center or visiting a lawyer to obtain legal advice. This can help a person determine whether he or she wants to proceed down the path of divorce. Marriage counseling or therapy can also be utilized to explore if reconciliation is possible or desired. The next step is actually filing a divorce petition and seeking the requested relief (i.e., property division, child support, spousal support, restraining orders, custody and visitation, etc.). Having an understanding of one’s rights and obligations will be key to a successful marital dissolution. At the end of the potentially long process, a final divorce or legal separation can profoundly affect a person’s life and the life of his/her family.
Preparation to End Your Marriage
Once a couple knows they want to file for divorce, they should prepare themselves for the potentially excruciating divorce process. There are two options for a divorce or “dissolution” as it is officially referred to in California. First, is the “regular dissolution,” which is what everyone typically thinks about. The other option is the shorter and easier “summary dissolution.” In the event a couple qualifies for the latter, it is advisable to take it as it is considerably simpler.
Notably, this process is not appropriate for everyone. The “summary dissolution” is possible for couples who meet the following basic requirements:
- The parties have no children together;
- The marriage is less than five (5) years old (from date of marriage to date of separation);
- There is less than $6,000 in community property debts (excluding automobile loans);
- There is less than $45,000 in community property (excluding vehicles);
- Each party has less than $45,000 in separate property (excluding vehicles);
- The parties agree they do not want spousal support or partner support from one another; and
- The parties do not have a dispute about how their assets and debts are going to be divided up.
The parties may not need a lawyer using this summary dissolution process but it is often in one’s best interest to consider talking to a lawyer or seeking other legal advice about terminating one’s marriage or domestic partnership. Some self-help services can make the divorce process a lot more accessible. For example, online Form FL-810 can greatly aid a person in filing a summary dissolution, so it is a good idea to review it thoroughly.
The next step is preparing the necessary forms. In a summary dissolution, the parties file a “Joint Petition for Summary Dissolution” and submit a property settlement agreement (which sets forth the parties’ agreement as to the division of the parties’ assets, debts, personal property, etc.). Notably, these forms are submitted and filed together rather than the regular dissolution where one party files a “Petition” and the other files a “Response to Petition.” The Judicial Council of California has prepared various forms that will need to be filled out—which is geared towards making the court process easier and more streamlined. The Self-Help center has also prepared worksheets to help the parties obtain all financial information including community property and each parties’ respective separate property. The forms also help the parties decide how to divide and allocate the assets and debts.
The completion of the necessary paperwork is simple, especially with a lawyer or attorney by one’s side. Once the paperwork is submitted, after six months of time passes, the judge signs off on it, and then the summary dissolution process is complete!
If proceeding with a regular dissolution, there is a lot of information to consider. In general, it is advisable to talk to a lawyer as soon as possible or visit a self-help center. The sooner you seek legal advice, the better prepared and likely the stronger your case can be. This can be particularly important as it relates to obtaining a certain property division, securing child support, seeking sole custody, requesting a certain visitation/parenting-time schedule, obtaining or opposing a request for spousal support, etc. A divorce without complications is a rarity, so it is best to keep in mind any legal advice you receive.
Below is a brief summary of the various ways a divorce can proceed in the California Court system.
California is a “no fault” divorce state. Put simply, anyone can seek a divorce without having to prove any fault of the other spouse. The basis for most dissolutions is “irreconcilable differences.” Either spouse can end the marriage and the other party cannot stop the process by refusing to participate.
If one spouse files a divorce petition in California and the other spouse does not respond in time, then the divorce can proceed by default. Like any other civil filing, if a person fails to respond to any court documents, they forfeit by default. There are very specific forms that must be completed and filled out if a divorce proceeds by default. On the flip side, it is important to understand the legal significance of being served with divorce papers. They should not be ignored or forgotten unless you are ready to have your spouse essentially decide all issues.
If both spouses come to an agreement outside of court, then it is considered an uncontested divorce. With both partners working together, the parties can prepare the necessary paperwork and submit the final judgment paperwork to the Court. Often one or both parties will retain an attorney to assist with finalizing the paperwork.
This approach to divorce or legal separation is quite common in the state of California. It is a relatively simple process where both parties hire an attorney to represent them. They each work with their respective legal representatives who advise and assist the parties in negotiating a settlement agreement. Sometimes third parties are involved such as custody specialists, therapists, accountants, or financial advisers to the extent they can help the parties reach a resolution without having to go before a judge. It can be a relatively painless process and is similar to an uncontested divorce. Practitioners focusing in collaborative law are highly skilled in family law and family law processes so they can help the parties navigate the process.
Mediators can help resolve all forms of conflict, and ADR Times has ample resources for couples to learn more, or find a qualified divorce mediator for their needs. A mediator is a third-party impartial person and is not a legal representative of either party. The mediator helps the parties reach a negotiated settlement agreement. This can occur online or in-person. A mediator will not force the parties into a settlement but can help the parties work with one another to resolve as many issues as possible. In the event the parties are not able to reach a settlement on all issues, the parties can have the judge decide on the remaining disputed items. By participating in the mediation process, it also helps the parties prepare for trial in the event a settlement is not reached.
A contested divorce is often the messiest type. When people think about divorce, this is the type they envision (i.e., the kind most typically depicted on television or in the movies). Of all the options discussed above, seeking legal advice is recommended the most in a contested divorce. The information available at the Online Self-Help Center or an in-person self-help center is often general and may not address the level of detail needed to handle a contested case especially if the issues are more complex. It is therefore advisable to obtain legal advice from an attorney to get a better understanding of the legal procedures one may encounter in a contested divorce.
Once it is clear that an informal agreement cannot be reached, then one party must file and serve a form to set a trial date. The judge will almost always order the parties to participate in a mandatory settlement conference before setting trial dates (except in the case of domestic violence or abuse).
The Court may also consider separate trials on different issues. For example, a party can ask to have the court terminate marital status while leaving the other issues to be resolved. This allows a party to move ahead with their life and remarry. The Court can also order a separate trial to determine the validity of a premarital agreement, the date of separation, or the division/distribution of one particular asset. Once a judge makes a decision, it often allows the parties to settle the remaining issues.
Proceeding with a Regular Dissolution
Once you decide to file for divorce in California, it is important to fill out all court forms necessary for a regular dissolution. Any form of legal separation requires these documents, so you may need to pay extra attention to these forms. Online Form FL-100 is necessary for those filing a “Petition” seeking a dissolution or legal separation of a marriage or domestic partnership. It is only 12 sections (with a few subsections) to complete. Online Form FL-110 is the Summons pertaining to family law, and it is in both English and Spanish. A lawyer or self-help center can provide specific advice and detailed information to help complete the forms and ensure the necessary type of relief is requested based on the case specifics.
If there are children of the relationship under the age of 18 and the parties want the court to make custody and visitation orders, then the parties must complete a Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) online Form FL-150.
There may be other requirements a court may help you file, such as local court forms. For example, in Orange County, parties must also submit a “Family Law Notice re Related Cases” with the Petition or Response. (See online Form L-1120.) In Los Angeles County, the party filing the petition must include a “Family Law Case Cover Sheet and Certificate of Grounds for Assignment to District” (LASC Fam 020) and both parties must include a “Court Order to Share Financial Information (Family Law Case)” (LASC Fam 111) when filing a petition or response. Each county has their own requirements so it is often beneficial to obtain a local attorney to assist.
As outlined above, it is recommended to have a legal representative assist with the preparation and filing of the forms needed to proceed with a divorce. If a party cannot afford a lawyer, a self-help center can help provide some guidance. Their services are often overlooked, but it is a great tool available in every California county.
Hiring an attorney can be highly instrumental to reaching a compromised settlement agreement (in an uncontested matter) or obtaining a successful final ruling from the court (in a contested matter). A legal representative can assist with the challenging processes such as California residency requirements, waiting periods, complying with the financial disclosure requirements, complicated property division, support, custody/visitation, hiring a forensic accountant to assist with complex estates/business valuations/or cash-flow/income available for support, and anything else that can arise during a California dissolution proceeding. In order to best achieve the desired results you are seeking, it is important to cooperate with your attorney during the process.
How Much Does a Divorce Cost?
Depending on the type of divorce you plan on getting, the fees you should expect to pay in the end can differ wildly. The filing fee for a petition is $435. The filing fee for a response to petition is also $435. If a person cannot afford these costs, they can apply for a fee waiver. There are a lot of other potential costs other than the family law filing fees. If you type in “average cost of divorce in California” in Google, it says $17,500. That said, simple and straightforward (uncontested) divorces can cost a lot less. In contrast, the more complicated or messy ones can cost significantly more depending on the disputed issues.
In addition to the cost of legal counsel, additional third-party services can increase litigation fees and costs. This can include custody evaluators, co-parenting counselors, or therapists depending on the issues and needs of the parties and children. An appraiser may be needed to determine the value of real property or personal property. A forensic accountant may be necessary (1) to assist with valuation issues if there are stock or business interests, (2) to prepare a report on cash-flow/income available for support if a party is self-employed, (3) to prepare tracings if there are separate property issues, and/or (4) to prepare a marital balance sheet to assist with the division of property.
Additionally, the law is constantly changing which can affect the resolution of certain disputed issues. For example, the In re Marriage of Davis (2015) 61 Cal.4th 846 case threw a wrench into how parties dealt with date of separation issues until the California legislature implemented certain changes which went into effect starting January 1, 2017. The landmark case People v. Sanchez (2016) 63 Cal.4th 665 set new limits on an expert’s ability to testify as to hearsay statements utilized in forming the expert’s opinion. Similarly, the Tax Cuts and Job Act ended the tax deduction for spousal support (on federal tax returns) commencing January 1, 2019. Ongoing changes to the state and federal laws can impact the disputed issues and may influence the cost of a dissolution proceeding.
How Long Does an Uncontested Divorce Take?
If you serve your spouse all of the divorce papers, and they willingly sign it, then a divorce in California should take approximately six months. This length of time is primarily due to a law in California requiring a mandatory six-month waiting period. It does not matter what county you are in, as it is a state law. Other states in the United States may take longer or shorter, but the state of California mandates a six-month waiting period.
How Long Does a Contested Divorce Take In California?
As noted above, six months is always the minimum for how quickly a divorce can be resolved in California. However, if the matter proceeds to a contested trial, it is difficult to estimate how long a proceeding can take. Based on the 2020 Court Statistics Report, in fiscal year 2018-2019, there were 224,353 cases consisting of marital filings (dissolutions, legal separations, nullities) and other family law filings such (e.g., child support, paternity actions, etc.) in the state of California. There is significant backlog in many California courts, which has only been made worse due to the closures from the COVID-19 pandemic. Delays and continuances of hearings or trial are often unavoidable. The family law courts are usually very generous in granting requests for continuances of hearings, even over objection by one of the parties, and even multiple times. Parties can potentially save time by agreeing to have their matter heard before a private judge (usually a retired judge). The complexity of a case will dictate how many days of trial is needed to resolve a matter, which can also impact the length of time needed to wrap up and resolve a dissolution proceeding.
The uncoupling process is often overwhelming, complicated and can be costly. What I’ve detailed above doesn’t even scratch the surface. There are a ton of resources here on ADR Times on the subject that can offer you some guidance (though it shouldn’t be construed as legal advice). That said, we do offer an attorney-mediator referral service (Need-A-Mediator) to help you get started.