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The language
In the area of the California divorce there are a few basic terms that you
should know for quick reference and to allow you to effectively communicate with
your counsel. Below are a few important
terms you should know to be able to speak just a little “legalize:”
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Term
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Definition
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Petition
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The Petition is the first document filed in a divorce proceeding. This is the formal request that
the court end or terminate the marriage relationship.
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Petitioner
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The Petitioner is the spouse that files the petition.
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Respondent
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The Respondent is the spouse that is served with the petition and must file a
“response.”
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Dissolution
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Dissolution is the California legal proceeding by which the state declares the
termination or end of the marital relationship and both parties are declared
“single” upon the entry of the final judgment.
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Summary Dissolution
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Summary dissolution is a “fast track” proceeding under California law that
allows couples who have been married for less than five years, have no children
or real estate, and owe less than $4,000.00 to agree to dissolution.
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Legal Separation
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Legal separation is a status declared by the court where the spouses no longer
live as a married couple, but retain the legal status of “married.” The court may divide community
property, assign child custody, and institute spousal or child support
obligations. Employee, medical or
other benefits of marriage remain intact.
The parties are not “single” upon legal separation, so they cannot
legally remarry.
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Annulment
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An annulment is technically not an “end” to a marriage; rather it is a
declaration of the court that the marriage never existed. An annulment may only be granted on
very limited grounds such as incest, bigamy, fraud, force, incapacity.
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Default
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A Default occurs when the Respondent fails to file a response to the petition
within the required thirty days. In
these situations, the petitioner may move forward with the dissolution
proceedings and obtain a default judgment of divorce.
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Uncontested Divorce
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An uncontested divorce is where the respondent does not contest or challenge the
allegations made in the Petition for dissolution.
Generally this occurs where the Respondent is in default or both parties
agree to matters of property division, child custody, spousal or child support
and have reached some form of agreement.
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Filing the Petition
In order to file for divorce in California, a residency requirement must be met. Either you or your spouse must have
lived in California for six continuous months before the filing. Further, that same person must have
been a resident of the county you wish to file in for at least three months
before filing. The residency
requirement only applies to the dissolution of marriage. If you are seeking a legal separation
or annulment, you may file in any California county as long as at least one
spouse was a resident of that county at the time of filing.
Filing the Petition for dissolution begins the divorce process. The petitioner, files the petition
asking the court to terminate the marriage and other orders pertaining to
marital assets or children. The main components of the petition address the
grounds for divorce, jurisdiction, the length of the marriage, existence of
minor children, property, and other relief sought by the petitioner. The topics covered in the petition
govern what will be included in the final judgment of divorce.
Service of the Petition
Once the petition has been filed, it must be personally served on the responding
spouse. A person over the age of 18,
that is not the petitioner, must hand deliver the petition and any attachments
to the respondent. The Respondent
may waive “personal service” and fill out an “acknowledgment of service” form. This is a form signed by the
Respondent stating that they have received the petition and other appropriate
documents. In either case, a proof of
service or acknowledgement of service must be filed with the court demonstrating
that the respondent has notice of the proceedings. The final judgment cannot be entered
prior to six months after the date of service.
Dissolution Petition Spotlight
Once the petition is filed and served, it not only begins the divorce process,
but it also informs the other spouse and the court that issues regarding
children, property, child and spousal support will have to be addressed. There are a number of boxes or blanks
on the petition that will be key in obtaining final orders later in the divorce
proceeding. Five key matters that
the petition addresses initially are the grounds for divorce, marital
statistics, minor children, property and injunctive relief.
Grounds for Dissolution of Marriage
The petition must include the grounds for divorce. California is a no-fault state
meaning that either party may initiate divorce proceedings; and the court does
not punish one spouse for an “affair” or “causing” the break-up. There are only two grounds for
dissolution of marriage: irreconcilable differences and incurable insanity. Irreconcilable differences means
there are disputes or differences between the spouses that have caused an
irreparable breakdown of the marriage.
In order to obtain a dissolution based on incurable insanity, you must
prove that the responding spouse is insane and such insanity cannot be cured
with regular treatment.
Marital Statistics
The petition also requests “marital statistics” that are two dates that have a
lasting effect on the parties during the divorce proceedings. First is the date
of the marriage. Second is the date
of separation. The "date of
separation" is the point in time when at least one of the spouses “intends to
end the relationship and has no intention to reconcile.” This is purely a state of mind and
one spouse does not even need to tell the other that the decision has been made. Generally, moving out of the home or
kicking the other spouse out, is good evidence of this intent. But physical separation may not be
required if other evidence that can be provided.
The date of separation is important in determining the division of property and
spousal support. All assets obtained
or debts incurred after the date of separation are the separate property of each
spouse. This will have long term
financial repercussions should one spouse earn a bonus, purchase new real
estate, or run up a large bill towards the end of the relationship. This date also determines whether a
marriage was a long term (ten years) or short term marriage. Spousal support cannot be waived in a
long term marriage. This means that
even if spousal support is not granted at the time of dissolution, the court can
reserve jurisdiction and potentially order it later upon request. In a short term marriage, spousal
support is temporary, and often limited to only half the length of the marriage.
Minor Children
The petition for dissolution requests very little information regarding the
children of a marriage, but this is often one of the more contested issues that
need to be resolved. Within a
dissolution proceeding, the court may address the paternity, custody and support
of minor children of the relationship.
Paternity
California law "presumes" that any child born during the marriage - that is
between the date of the marriage and the date of the separation - is a product
of the marriage, i.e. the spouses are the father and mother. It does not make the same presumption
regarding children born prior to the date of marriage or those born after the
date of separation. However, during
the dissolution proceedings you can obtain a judgment or declaration of
paternity for these children through a "voluntary declaration of paternity" or
court ordered paternity test.
Child Custody
A California court has exclusive and continuing jurisdiction over all child
custody issues if the child has lived with a parent (or person acting as a
parent) in California for at least six consecutive months prior to the filing. If California is not deemed your
child's home state, then you may be able to obtain dissolution in California,
but all issues related to your child will have to be decided in the child’s home
state.
Child custody is both physical and legal.
Physical custody determines which parent will have the primary physical
and daily care of the child and the child’s main residence. This right can be given solely to one
parent or shared by both parents.
The most frequent situation is one in which one parent has sole physical custody
and the other parent has visitation rights.
These visits can be arranged on weekly, monthly, holiday or any other
reasonable schedule agreed upon by the parents that allow the child to maintain
a regular and stable routine. Legal
custody is the right and obligation to make decisions about the child’s
upbringing. Generally, parents share
legal custody; however a parent can seek sole legal custody.
California law has two primary considerations when granting either physical and
or legal custody of a child: the safety and welfare of the child, and the
frequent and continuing contact with both parents and share parenting. There are many factors that the court
will examine in making this determination which include the child's health and
safety, a history of abuse, the separation of sibling and if the child is old
enough, the child's wishes. A
court will enforce an agreement made by the parents.
Child Support
It is important to realize that child support and child custody are two separate
issues. The right to visit your
child is not dependent on paying child support.
Child support is an amount of money to be paid by the parent that does
not have primary physical custody of the child to the custodial parent. This amount is for the benefit of the
child and is based on the parents’ circumstances and station in life. California has a statutory formula
that takes into consideration different factors such as the gross income of both
parents; parents’ expenses, tax filing status, the time the non-custodial parent
spends with the child, and which parent is the high earner. These items are inserted into the
formula that computes the amount of child support. There are a few circumstances under
which the court does not have to apply the California statutory guidelines. In those cases the amount of child
support may be increased or reduced according to the special needs of a
particular child, the housing expenses of parents for example.
Community Property
A fourth issue introduced in the petition is property division. California is a community property
state. This means that the court
views all real property, debts, or assets that were obtained or incurred between
the date of marriage and the date of separation as owned by the "marriage" not
an individual spouse. The two
exceptions to this rule are gifts and inheritances of individual spouses. The division of community assets also
includes the division of community debt.
It doesn't matter that the bill was for "his motorcycle" or "her new
jewelry." What matters was that the
bill, tab, credit or obligation arose during the course of the marriage. Although California is a no fault
state in regards to the reason for the divorce, attempts to hid assets or leave
one spouse with all of the debt may result in a disproportionate division of property as a form of
sanctions against the offending party.
All community property and debts will be divided 50-50 by the court.
Injunctive Relief
Answering the Petition
After receiving the petition for dissolution, the respondent has thirty days to
file a “response.” At this time, the respondent may also make a request for
dissolution and assert their position as to the date of marriage, date of
separation, division of property and contest issues of child support and
custody. This is when the spouses
realize - at least on paper – what will be the primary areas of contention.
Temporary Orders
Now that the divorce proceedings have begun, there are practical considerations
that need to be addressed. For
example, payment of bills, living arrangements, child support, spousal support,
and in extreme situations – basic rules on how the spouses will communicate
during the pendency of the divorce must be decided. Each of these can be addressed by
obtaining a temporary order from the court that will remain in place until the
final judgment of dissolution is issued.
In order to obtain an order for any of these issues, the same general steps are followed:
The first step is to request an Order to
Show Cause hearing and make a request to the court. Generally, if the parties are amicable, no
temporary order will be needed, or it is just a formality because the parties
have already reached an agreement. However,
if the petitioner or respondent believe that there will be a dispute that spouse
should seek a temporary court order.
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Often the court will require mediation
prior to setting a hearing date. In
matters of child custody, most counties in California require that the parties
have a mediation set and concluded before a hearing will be put on calendar. Regardless of the issue, if the parties
have failed to make an agreement among themselves, a hearing date will be set,
generally within three weeks of the filing.
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At the hearing,
the parties will have the opportunity to present evidence and argue regarding
the request. This is the opportunity to
present witnesses, submit documents as evidence, testify and cross-examine your
spouse regarding certain details that are relevant to the request.
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After the hearing the court will issue a
temporary order that will remain in effect until the final judgment is
issued.
Generally, temporary orders are requested prior to or just after minimum
discovery has been conducted.
Therefore these orders can be modified as needed during the proceedings.
In extreme or emergency situations, a hearing may be obtained on much shorter
notice by requesting an ex-parte hearing.
An ex-parte motion is a motion filed with the court in which you are
requesting a hearing on a matter in an emergency situation. Notice to the respondent may be as
short as 24 hours in some cases. The
court will hear the testimony of the party filing the matter and will issue and
order the same day. This is often a
situation involving domestic violence where there is a danger to the children or
a spouse.
Mediation and Settlement
At all points during the proceedings you and your spouse have the right to reach
an agreement regarding property division, support and child custody matters
without the involvement of the court.
In fact, prior to filing a petition for divorce, couples may consider
speaking with a mediator to discuss property division, support and child custody
and then file jointly for the dissolution.
The benefits of mediation is that it is a more amicable situation and
allows the parties to meet face to face to discuss matters with a neutral third
party whose purpose is to help them reach an agreement.
More often than not, the relationship is not conducive to a voluntary
negotiation before the filing of the petition.
In these cases, California law requires that the parties participate in
some form of mediation prior to setting a trial date and often, prior to setting
the hearings for temporary orders as well.
During these negotiations, the spouses can form a Marital Settlement
Agreement that addresses all issues, or at minimum those on which the spouses
agree. The Court will enter the
agreement as part of the final judgment of dissolution. However, if no agreement can be
reached, or if certain issues remain unresolved, those issues can be left for
the hearing or trial.
Discovery and Disclosures
Once the Petition has been filed, and often while temporary orders are being
submitted, the discovery process will begin.
California requires that each spouse provide a preliminary disclosure of
income and expenses; and a list of all assets and debts of each spouse and the
community. The preliminary
disclosures are sent directly to the other spouse and not filed with the court
initially. These disclosures are
mandatory, but for the most part are cursory and do not require that the other
party provide other additional information except for copies of income tax
returns or W-2’s.
In order to get a full picture of the financial status of the marriage, it is
best to conduct full discovery. This
is especially vital for the spouse that was not responsible for the family
finances. This information can be
obtained in detail through written interrogatories, depositions, requests for
production of documents, and subpoenas to third parties (banks, employers, etc).
The mandatory disclosures are also limited to financial information. To resolve issues related to child
custody the other forms of discovery such as depositions, interrogatories, and
additional hearings where experts may testify regarding the health of the
children, will be more helpful in determining the best interest of the child.
Trial
Once discovery has been completed and attempts to mediate have failed, the
parties will go to trial. This is
the opportunity for spouses to present arguments, have witnesses testify, and
submit the information obtained through discovery to the judge. A divorce trial is not conducted
before a jury.
During the trial, the judge will review the temporary orders to determine
whether or not they are still necessary.
The judge may amend or revise those orders based on the new information
provided and issue a final judgment.
The final judgment will officially end the marriage and declare the parties as
single individuals as well as issue final orders regarding division of property,
spousal and child support, and child custody.
Dissolution Map
Overall, the dissolution process from beginning to end may appear confusing, but
it can be broken down into three basic stages:
Initiation, Identifying Disputes, and Resolution.
Every divorce is different.ther spouse enters with the intention to hurt the other. However, the divorce process often
brings out the most emotionally charged version of a spouse; so it is important
to be informed and patient.
Dissolution Frequently Asked Questions:
Call Smith & Garg, LLC today at 1-877-517-4275 or complete our Contact Form and let us assist you with your divorce law needs.
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