Marriage means many different things to a lot of different people. In the legal sphere, however, it boils down to one, very simple thing: a contract.
When you got married, you and your spouse agreed to combine a lot of important interests—like property, retirement accounts, and even custody of any children you might have together. In turn, you received a lot of great legal and tax benefits, which made it a win-win situation for everyone.
Unfortunately, now that you’re ready to break up, severing ties is going to be a bit more complicated than breaking up with that college fling you had, twenty years ago. To file for divorce, you’ll need to meet residency requirements, file the right paperwork, notify a bunch of people, and do a whole bunch of other stuff that’ll probably seem a little overwhelming at the moment.
Luckily, we’ve got your back.
Here’s what you need to know about how to file for divorce in California, the steps you’ll need to take, and what the Provinziano team can do to help you with this important process.
Step 1: Residency Requirements
Before you pick up a single pen or piece of paper, the first step to filing for divorce is figuring out whether or not you meet California’s residency requirements.
Remember: divorce and family law are state powers. Meaning that California, like other states, has its own rules and regulations about dissolving a marriage. And one of those rules is being a resident of the state.
This prevents people from what we call “forum shopping”; a fancy legal term that essentially means “hoping across state lines and getting a divorce in whatever state will give you the best deal.”
In California, you are considered a resident if at least one of you has lived in the state for more than six months, and in the county for three.
The Residency Exception
California law has one very minor exception to the residency rule: same sex couples can get a divorce, annulment, or legal separation without meeting residency requirements, if:
- They were married in California; and,
- Neither spouse lives in a state that will dissolve the marriage.
Essentially, if you live in a state that doesn’t recognize same sex marriage, chances are they won’t let you get a divorce, either. In these situations, California will waive the residency requirement, and dissolve the marriage, anyway.
Step 2: File Your Petition
Once you tick off the residency box, it’s time to start filling out paperwork. In California, this will include several important forms—all of which must be completed—prior to filing anything with the court.
Here are some of the forms, and what they do:
- Petition for Divorce—notifies the court that you want a divorce, informs them of what you’d like to have happen, and asks for their help in doing those things.
- Summons—tells your spouse that they need to appear in court, and gives them information about where, why, and when. In addition, a summons subjects both of you to a standard restraining order, which prohibits either of you from:
- Removing children from California (even for vacations);
- Making any changes to insurance;
- Buying, selling, or disposing of property; and,
- Creating a non-probate transfer.
Binding you to these restrictions maintains the status quo of marital property, finances, and custody, ensuring that your eventual final order is as fair as possible.
- Child Custody and Visitation Application—applicable for those with minor children, this document outlines details needed to make temporary custody and visitation arrangements, until your case is finalized.
Once complete and copied, these forms should be filed with your county clerk—which includes a filing fee of $435. At this time, you’ll also receive a date for your hearing, later on.
Step 3: Notify Your Spouse
When you file for divorce, you are obligated to inform your spouse that you’ve taken legal action against them. This notification is called “proper service,” and it requires more than just a quick text!
In California, proper service is done by hand-delivering copies of divorce paperwork to your spouse. This delivery cannot be done by you, and must be completed by someone who is:
- Over eighteen;
- Not a party to the case; and,
- Is identified by name and address on the return of service form.
Failing to execute proper service could get your case thrown out, or, at the very least, cause frustrating delays.
Step 4: Wait for a Response
After you’ve successfully executed proper service, your spouse will have thirty days to respond, which they can do in one of three ways:
- Do nothing.
- File a response agreeing to all your terms.
- File a response disagreeing with all (or some) of your terms.
Some people think they can halt an unwanted divorce by not responding to a complaint. This, however, is false. If your spouse chooses not to engage, then the judge will simply enter a default judgment in their absence. (This operates the same as if they’d agreed to all your terms).
While it’s not impossible for spouses to agree on everything (ahem, uncontested divorce, anyone?), your spouse will most likely respond by disagreeing to your terms in some way. This doesn’t mean your divorce has to be contentious, however, and plenty of amicable splits are accomplished through mediation and collaborative divorce.
Step 5: And Then Wait Some More…
Waiting around for your spouse to respond might be stressful; but keep in mind, it’s something you’d likely be doing, anyway.
According to California law, couples getting divorced must undergo a mandatory waiting period, before a judge can finalize their divorce. This time out can’t be shorter than six months from the time you file for divorce.
This time out acts as a kind of “cooling off” period, and gives couples the time and opportunity to reconcile (which happens more than you might think).
Step 6: Serve Your Financial Disclosures
Just because you have to endure a waiting period, doesn’t mean you have to be unproductive. Instead, use this time to complete and serve your spouse with copies of your financial disclosures.
Your financial disclosure acts as a formal inventory of everything you own to the court. assets to the court (both separate and marital). This includes things like your home, car, bank accounts, debt, loans, investments, bitcoin, jewelry, art, and any other property or financial obligations you might have.
Unlike some of your other documents, your financial disclosure doesn’t have to be filed at the same time as your petition. However, you and your spouse will both be required to submit this information no later than sixty days after you file for divorce.
In California, this information is exchanged by filling out a financial disclosure form, and giving a copy to your spouse (via proper service, just like we talked about, above). Your spouse will be required to do the same thing.
Step 7: Reach a Verdict
With all documents submitted and filed, the only thing left to do is to try and reach a settlement. This can be done in a number of different ways, and doesn’t always require you to endure a full-blown court trial (complete with gavel, moody courtroom, and surely judge).
Indeed, most couples are able to find success through alternative methods of dispute resolution such as mediation or collaborative divorce. These negotiations are faster, less expensive, and offer a lot more flexibility than traditional litigation.
If you’re unable to reach an agreement out of court, however, then the only option left will be litigation. At your trial, a judge will examine your evidence, hear arguments, and make decisions on your behalf, which will then be drafted into a formal divorce decree.
Step 8: Hire an Attorney
It may sound self-serving (scratch that, it absolutely does sound self-serving), but before you file for divorce, do yourself a favor, and hire an attorney.
Divorce is an incredibly complex and nuanced process; meaning that filing for one is going to be equally complex. Without proper representation, it’s really easy to make expensive—sometimes irreversible—mistakes along the way. Which is why it’s so important to have an attorney with experience fighting at your side.
This representation will make your life a whole lot easier, and give you the peace of mind in knowing that your rights are being fully represented for every step of the way.
Do You Need Help Filing for Divorce in California?
Family law is extremely complex and nuanced, which means filing for divorce can seem like a daunting task. Luckily, with the right attorney, it doesn’t have to be as stressful as you might be thinking.
If you have more questions about how to file for divorce in California—and which type is right for your family—we want to hear from you. Call Provinziano & Associates at (310) 820-3500, or get in touch online, and let us help you navigate this important life transition.