Making the decision to get divorced is one of the biggest decisions a person can make. It’s important to understand that getting a divorce is a process, one that doesn’t just happen immediately. The divorce process in California can be both complicated and time consuming. Understanding the whole process can make your divorce easier and allow you to prepare for your new post-divorce life.
Below are the basics of the divorce process in California:
Filing Paperwork
To begin the process of getting a divorce, one person needs to file paperwork with the court. The filing spouse is called the Petitioner. This gets the process started by providing the involved parties, any children involved, and the reason why the petitioner is asking for a divorce.
California is a no-fault divorce state. This helps to remove much of the stereotypical finger-pointing, name calling, and other unpleasantness associated with divorces. All the petitioner has to put on the paperwork is that they want a divorce on the basis of irreconcilable differences with their spouse. This is a satisfactory reasoning with the courts in California, and you do not need to provide any reasoning beyond this.
When filing paperwork, you can also file a petition for temporary orders. These orders include:
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- Child Custody
- Alimony
- Child support
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These orders don’t have to be granted by the courts. However, if the court does agree to temporary orders, they are only in effect until the divorce is finalized.
Serving Paperwork
In California, the spouse who did not file the paperwork is called the Respondent. They must be served with official copies of all the paperwork involved in the divorce. The petition is not considered valid unless it has been served to the Respondent and a proof of service has been filed with the courts.
Service means that the filing spouse has a third party to hand deliver a copy of the paperwork to the respondent. Once the paperwork has been delivered, that third-party needs to file what is called a “Proof of Service” that they delivered the paperwork. In some instances, paperwork can be delivered via certified mail. Check with your attorney or local municipality court for the rules regarding mail service.
Response to Divorce Petition
Once the respondent has received the divorce petition, they have 30 days to file their own response papers. The rest of the divorce proceedings will depend on whether the divorcing couple’s divorce is contested or uncontested.
California recognizes two different types of divorces: contested and uncontested. In a contested divorce, one or both parties involved do not agree to the terms provided in the original divorce petition. In an uncontested divorce, both parties agree to the original terms filed in the Petition for Divorce.
Regardless of whether or not the non-filing spouse agrees or disagrees with the petition, they have the right to file their own response. In this, they are able to state aspects of the petition that they disagree with, and/or propose alternatives to the original petition. If they do not file a response, then the court will use the original terms proposed in the divorce petition, which is called a default divorce.
Negotiations, Mediation, Arbitration
If both parties do not agree to the terms proposed in the initial filing, they will need to enter into negotiations to find an amicable resolution. This is typical of most divorces in California because people who have built lives together tend to disagree on how those past lives should be divided.
Some of the more common items that are disputed include:
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- Property
- Alimony
- Child Custody
- Child Support
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Mediation: Most divorces begin with what is called Mediation. This is where both parties present their demands for the divorce to an independent third-party called a “Mediator”. It is the job of the mediator to listen to both sides and see if he/she can help the couple agree to terms without needing to go to court. This is the preferred method for divorces in the eyes of the courts in California, and in the best interests of all parties involved. Court cases can be both time consuming and expensive. A successful mediation helps to alleviate much of the stress and burdens incurred during a divorce trial.
Arbitration: This is when a third party, called an arbitrator, meets with the divorcing couple and their attorneys. This is essentially a private trial where both sides get to present evidence, make arguments, and bring in witnesses. The arbitrator makes their decision after both sides have presented their case. The findings of an arbitrator are final in the eyes of the court. Much like mediation, arbitration is much less costly and time consuming.
Divorce Trial Proceedings
If both parties are unable to come to agreement either through mediation or arbitration, then the divorce will need to be litigated in court. The parties will have the opportunity to present their evidence and witnesses in front of a judge. The judge will hear all arguments from both parties and give a ruling. The ruling made by a judge is final in the eyes of the courts and can not be disputed. Both parties are required to adhere to these findings and comply to the terms established in court.
Order of Dissolution
In California, all divorces must first undergo a minimum time requirement before a divorce can be finalized. This is typically 6 months from proof of service to the non-filing spouse, but can be much longer if neither party can agree to the terms. A divorce is finalized once the time requirement has been met and all terms of the divorce have been completed either through mediation or the courts.
Divorces can wreak havoc on families, and it takes time to get all the affairs in order. A judge will not sign off on the divorce until all terms have been agreed upon by both parties. Once the time has been met and the terms have been agreed upon, the judge will review the case and issue an Order of Dissolution. At this time, the divorce is finalized and the two parties are no longer married in the eyes of the court.
Typically, once a divorce is finalized, parties are not able to make any changes to the divorce order. However, there are certain circumstances such as: change of children’s needs, abuse, neglect, or other life changes that can be grounds to make modifications to the original divorce order. They must provide significant evidence to prove the need for change. If they can demonstrate the need, the courts might agree to the proposed modifications, but they are not obligated to do so.
Divorce can be a complicated, emotional, and time consuming roller coaster. A good attorney can help you navigate the process and alleviate much of the stress associated with a divorce. This will allow you the opportunity to focus on your new family structure and the post-divorce healing process.