Uncontested Divorce (Dissolution) in California
This blog post gives an overview of the uncontested California dissolution (“divorce”) filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those “do it yourself divorce” filers, due to the fact that many cases are unique and there are other methods of obtaining an uncontested divorce in California.
In California the term “irreconcilable differences” describes No-Fault divorce. It means that “irreconcilable differences have caused an irremediable breakdown of the marriage.”
In California, as in other states, divorces may be either contested or uncontested, but uncontested, No-Fault divorces move through the courts more quickly and less expensively.
California is a community property state. This means that assets and liabilities are either community property (half is one spouse’s, half the other’s, such as the marital home acquired during the marriage), or separate property (one spouse’s alone, such as gifts and inheritances).
In California, the party who files is called the Petitioner; the party who answers is called the Respondent. The divorce is filed in the Superior Court, normally the county of residence of the couple. One spouse or the other must have lived in California for at least six months and in the county where the divorce is being filed for at least three months. Moreover, there is a six-month waiting period after the service of process or an Answer by the Respondent before the divorce becomes final.
Most of the forms used in divorce in California are those adopted by the California Judicial Council, and their use is mandatory. County courts also have forms that may be used in compliance with local rules governing divorce.
California permits what is called a Summary Dissolution of Marriage. Also called a simplified or special dissolution of marriage, a summary action is an inexpensive and easy way to divorce for those couples who qualify, but both the husband and wife must be certain they want to go this route because either can change his or her mind during the six-month waiting period between the filing and the finalization of the action. To qualify for this divorce routine, a couple must meet certain requirements, see this blog post http://wp.me/ps4Uj-W for more information on a Summary Dissolution.
The procedural requirements for an uncontested divorce come from California statutes, the California rules of Court, and the local rules of court. Depending on the situation, the couple will file a variety of court papers. These include a property settlement agreement dividing community property (the martial estate) and establishing the terms and conditions of child care and spousal support.
However, the basic steps for an uncontested divorce are as follows:
1. File a petition asking the court to grant a divorce.
2. Notification of the other spouse that a divorce has been filed. This entails serving the other spouse with a copy of the Summons- Family Law, Petition, a blank Response form, and may include other forms especially if there are minor children involved.
3. Exchange Preliminary Declarations of Disclosure, or if the other spouse does not cooperate the Petition needs to serve a Preliminary Declaration of Disclosure including a Schedule of Assets and Debts and an Income and Expense Declaration. The Final Declaration of Disclosure can be waived by both parties, however the Preliminary cannot be waived.
4. If both parties agree a Marital Settlement Agreement is then prepared which outlines the agreement of the parties regarding child custody/visitation/support if applicable, spousal support if applicable, and division of property and debts. If the other spouse does not cooperate and does not respond to the Petition, then a Request to Enter Default must be filed along with a Request for a Default Hearing.
5. Submit the Marital Settlement Agreement and other final paperwork to the Court for processing. If both parties agree then no Court appearance will be required. If a default hearing is involved then a Property Declaration and an Income and Expense Declaration must be submitted to the Court before the Default Hearing. At the hearing a proposed Judgment must be submitted to the Clerk before the Judge hears the case. If the Judge agrees with the proposed Judgment they will sign it which will finalize the divorce.
In all cases, the divorce begins with the Petition, the Summons-Family Law, Response and any local forms that may be required by the county court. The Petition, the Summons-Family Law, Response and any local forms that may be required are normally served by a process server and may not be hand-delivered to the other spouse by the Petitioner because he or she is a party to the action. This is called Service of Process. Other forms may normally be mailed to the other party by first class mail.
Divorcing a missing spouse — one who cannot or will not be located -requires a good faith effort at locating him or her, followed by ex parte (without notice) application to the court for Service by Publication. In this regime, the Petitioner must first make a good faith (or “diligent”) search for his or her missing spouse. This search normally includes checking telephone directories in the area where both the petitioner and respondent live or lived, asking friends and relatives, checking tax records, contacting the department of motor vehicles, voter registration, etc. After a diligent but fruitless search has been made, the court approves an application to the court of Service by Publication.
This requires the completion of a form, Ex Parte Application for Publication of Summons; Declaration in Support Thereof; Memorandum of Points and Authorities as well as Order for Publication of Summons. After these have been approved, the summons can be published in a newspaper. The summons must be published once a week for four successive weeks, with a least five days between successive publications.
The Petition, which must be completed in all cases, identifies the Petitioner and Respondent, the date of the marriage, the date of separation, the minor children (if any), makes a declaration of the community and quasi-community assets and debts and states the relief sought. Depending on the situation — that is, whether or not the couple are in agreement — other forms (see below) may be accompanied with the Petition. For example, if there are minor children of the marriage, the petitioner must file the Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and attach it to the petition.
The Summons-Family Law is the Notice to the Respondent that a divorce has been filed by the Petitioner. It gives him or her 30 days to respond and carries with it a warning that failure to respond may result in a default judgment against him or her. The Summons also restrains both parties from removing minor children from the state and dissipating marital assets without the written consent of the other party, or a Court order.
After one spouse files, uncontested divorces evolve in one of two ways.
The first is when the spouses agree on every issue: asset and liability division, the terms and conditions of child custody, support and visitation, alimony. A divorce can be said to be uncontested when the spouses do the fighting before going to court, come to an agreement, and the judge then approves it if it is fair and reasonable.
The second way happens when the Respondent does not respond to the petition for divorce. In addition, sometimes the responding spouse cannot be located. Sometimes divorcing spouses agree that the responding spouse will default. This is not collusion, and divorce proceeds through the court with his or her agreement.
When a couple agree on all issues, or when either defaults, the court may issue Judgment either by Declaration without an appearance in Court, or a Default Judgment after a Court hearing. As stated previously, if both parties agree then a Court appearance will not be required. After a summary action, an uncontested action coursing along this default route is probably the easiest route to a divorce.
The trajectory of a contested divorce is difficult to predict because it is litigation, and it is adversarial. A contested divorce begins with the same filing procedure, then often one of the parties will request an Order to Show Cause Hearing, after which the judge will rule on temporary support, child custody and restraining orders.
The parties then may engage in Discovery, which becomes far more invasive and complicated than the voluntary disclosures made in an uncontested action. In both uncontested and contested actions, the Preliminary Declaration of Disclosure is used as well as the disclosure of current expenses and incomes.
After Discovery, the parties and the lawyers attempt to settle the case through negotiations. If they reach an accord, one of the lawyers prepares a MSA based on California’s community property divorce law. This is a contract signed by the parties and their lawyers. But if this fails, the parties go to trial.
Clearly if both parties can agree on all, or most of the issues, they can save a lot of time and money by proceeding with an Uncontested Divorce.
The author of this article, Stan Burman, is a freelance paralegal with over 15 years of experience in California Divorce Litigation.