Family Law 101: Divorce, Separation, and Annulment
California recognizes "no fault" divorce. This means that the spouse or domestic partner asking for the separation does not have to prove that the other spouse or partner did something wrong. Instead, most of divorces in California are granted due to irreconcilable differences. Some cases may proceed to trial while others can be resolved through settlement. Procedurally, divorce involves a variety of issues, such as child custody, child support, spousal support, and property division.
As outlined in our blog post "What are the steps in a divorce?", there are a number of parts to a successful dissolution:
1. First Party Files
a. In order to initiate a divorce, a spouse must decide to end the marriage. When he/she files a petition for dissolution with the court, he/she is legally known as the petitioner.
b. It’s important to note that it’s not necessary for both spouses to agree to file for divorce. Either spouse can decide to seek one, and the other spouse, even if he/she is unwilling, cannot stop the process by simply refusing to participate. If a spouse does not partake in the case, the other spouse will still be eligible to receive what’s known as a “default” judgment. In other words, the divorce will still go through.
2. Second Party Notified
a. Once the petitioner acquires, completes, and files all the required forms (including any local forms necessary), an uninvolved person of at least eighteen years of age personally serves the other spouse (legally known as the respondent) with copies of the paperwork. This third-party fills out a form called a “proof of service” to show that he/she has given the correct documents to the respondent immediately. The petitioner then files the proof of service.
b. Although a spouse is not required to participate in a divorce, he/she does have a right to know about it. This is called “service of process.” The respondent must be informed so, if he/she so chooses, he/she may explain his/her side of the story to the judge before a judgment is made.
c. Once the petitioner files and the respondent is notified, both spouses are bound by Automatic Temporary Restraining Orders.
3. Respondent Files
a. If the respondent chooses to file a response, he/she procures, completes, and files the requisite forms with the court clerk within 30 days of being served. Another uninvolved person over 18 will then provide the petitioner with a copy of the respondent’s court forms by mail. He/she will fill out a proof of service, and the respondent will file the form with the court.
4. Initial Financial Disclosures
a. The parties will exchange financial documents including an income and expense declaration, a schedule of assets and debts, and recent tax returns showing what they own and owe. This process is called “preliminary declaration of disclosure.” This allows both parties to fairly settle assets and debts.
a. In general, if a couple can reach an agreement about their issues, they may not need to go to in front of a judge. If they cannot reach an agreement, they will have to go to court to resolve their disagreements. It follows that, if a couple succeeds in reaching an agreement, they will be able to save time and money. When couples can’t agree, the longer the proceedings drag on...filing fees pile up, court hours build, attorney’s fees rise, and so on.
b. Many months or years can pass from moment the petition is filed until the moment divorce is finalized. During this period, either party may seek relief on certain matters through filing a “Request for Order.” The court will schedule a hearing, wherein a judge may issue “pendente lite” (Latin: pending litigation) orders. These will issue temporary directives for matters like spousal support and child support, while the settlement takes form.
a. To finalize a divorce, the court must approve and sign a judgment. The process of obtaining a judgment depends on whether the respondent files a response and whether the spouses reach an agreement about the terms of the divorce. As stated above, amicable agreements lighten the stress all around. Since this is unfortunately not always feasible, mediation, court hearings, or a trial may be necessary.
b. A marriage cannot legally end in California until at least 6 months after the case is filed and personal service of process (Step 2 above) has been carried out. It goes without saying that a divorce will not finalize on its own: one or both sides must file more papers before that happens.
Legal separation stands upon the same legal basis as dissolution. It provides all of the same remedies (e.g. separation of assets/debts, support, custody/visitation, etc.), except the termination of marital status. Similar processes are used. Legal separation is typically used when neither party meets the residence requirement for filing in a particular state or county.
Annulments vary significantly from divorce and legal separation. You are subject to a statue of limitations depending on the reason you have to seek one, which may be any of the following:
- Prior existing marriage
- Physical incapacitation
- Unsound mind
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