The Divorce Filing Process
The decision to file for divorce is probably
one of the most emotionally draining situations a family can face. Divorce
changes the family dynamic, at least on a temporary basis, and ultimately
affects the finances and relationships of all the individuals involved.
Due to its sensitive nature, filing for
divorce should not be taken lightly. Each party should take steps to have his or her affairs in order prior to filing. Here are steps to ensure the process runs as
smoothly as possible:
Residency Requirement. To file a petition for dissolution of marriage in
California, either the petitioner or the respondent must have been a resident of
the state for a minimum of six months and of the county in which the petition
is filed for three months before the date the petition is filed. A person who does not satisfy that
requirement can file a petition for legal separation and later amend it to
petition for dissolution once the residency requirements are met.
Mandatory Waiting Period. In California, there is a mandatory waiting period of 6 months
from the date the petition for dissolution of marriage is served on the respondent.
This means that even if the rest of your case is decided during that period,
the order terminating the parties’ marital status cannot become effective until
after the waiting period expires. On the other hand, the expiration of the
waiting period does not mean that the parties are automatically divorced; the
parties are only divorced on the entry of a judgment which specifically orders
a dissolution of their marriage.
Financial Information. In the divorce process, each spouse will need to provide the
other spouse proof of income and earnings, a list of individual assets, and
outstanding debts. Especially if you are planning to leave the family residence
it is important to make copies of documents, computer files and website
information concerning your finances. Be
prepared to have the following documents ready to submit: statements for bank
and brokerage accounts (, loan and credit card statements, , recent paystubs
and W-2 forms, tax returns for at least the last 2 years, vehicle titles, life
insurance beneficiaries, financial records for business and real estate assets,
statements for retirement plans and accounts, and health insurance documents.
Additionally, you will be asked to estimate monthly living expenses.
Automatic Temporary Restraining Orders. In California, during the time a marital dissolution case is
pending, there are Automatic Temporary Restraining Orders (ATROs) in
effect. The ATROs are stated on the
second page of the Summons. The ATROs
apply to the petitioner from the time the Petition for Dissolution is signed
and to the Respondent from the time the Summons and Petition are served. The ATROs concern matters such as preventing
changes to beneficiaries of retirement assets and estate planning documents,
taking a spouse or child off of health care insurance or automobile insurance
coverage, taking a child outside the State of California, and transferring
property. A written agreement or a court
order is necessary to override the ATROs.
If you are planning to divorce, review the language of the ATROs before
signing the petition to make sure you don’t violate them after they are in
effect.
Select Divorce Procedure. In California, there are two options for divorce: traditional
dissolution of marriage and summary dissolution of marriage. In most cases, the
traditional dissolution of marriage procedure will need to be used. To use the
summary procedure, the following must be met:
Both parties agree to
the divorce
- There are no children
- Both parties waive the right to spousal support
- There is a written agreement for the division of property and debts
- Debts are $6000 or less
- Community property is valued at less than $41,000
Thus, a summary dissolution is useful where the
issues are minimal and there is little likelihood that the court will need to
be involved in deciding issues in the case.
Prepare Paperwork. There are mandatory forms that California requires be used
in martial dissolution proceedings.
Those forms (including fillable versions) can be found under “Family Law”
at courts.ca.gov/forms, as well as other websites, libraries, and courthouses. If
minor children are involved, the Petitioner must submit a filled out a
mandatory form concerning the children. In
addition to these mandatory forms, , the county in which you file may have
forms it requires which can be found at the website for the county’s Superior
Court.
File for Divorce. The Summons and Petition and related paperwork is filed at
the clerk’s office in the Superior Court of the County in which you or the respondent reside. Large counties in
size or population often have multiple courthouses and you will need to
determine from the specific county’s court website which courthouse to
use. There is a mandatory filing fee,
but that fee may be waived if the Petitioner meets certain financial
requirements, which requires submission of an application for waiver of fees
for which there is a mandatory form.
Temporary Orders for Alimony (Spousal) and/or
Child Support and Other Matters.
There often a is
need for orders, regarding spousal and/or child support, attorney fees, child
custody arrangements, and regarding control or use of property to go into
effect at the time the petition for dissolution of marriage is filed or shortly
thereafter. The way to do this is to
file a “Request for Order” along with your petition or response (a Request for
Order can also be filed at a later time if necessary). However, if you are
seeking Domestic Violence Restraining Orders, you need to use forms specific to
that relief which can be found from the same sources. There is an additional fee for filing the
Request for Order, but not for filing an application for Domestic Violence
Restraining Orders.
Inform Your Spouse. In California, filing the Petition and related paperwork does
not fully start your case. You also need
to have the filed papers and copies of forms to respond to the petition and any
associated Request for Order or Application for DV restraining orders served on
your spouse. You cannot do the service yourself; it can be done by any other
competent adult. There are three ways this can be done:
- Mailing the forms to
the spouse with mandatory form by which the spouse can acknowledge service. If
the spouse does not sign, he or she must be served personally or by
publication.
- Legally serving your
spouse with court papers
- Publishing proper
legal notice (i.e. ad in the local newspaper) if you cannot locate your spouse
Attend Hearing / Provide Documentation. If the parties can readily agree on issues, there may be
no need for the parties to go to court other than to file papers. However, it is not uncommon to have at
least one court hearing unless the summary procedure has been used, especially
where one or both parties have submitted a Request for Order to the court. It
is important to appear in the court at the time set for the hearing, ready to
present your evidence and your arguments as to why you should prevail. If you and your spouse have not already
discussed the possibility of settling the issues before the court, you should
be prepared to do so as judge’s typically order the parties to try to settle
before hearing the case.
The Family Law Attorneys at Di Maria &Cone have been serving clients in the Palo Alto and the San Francisco Bay Area since
1946. Whatever unique family law needs you may have we will advocate for you
during all stages of your case. Please visit our website or call us at (650) 321-4460 today.
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