Friday, November 2nd 2007
California Divorce Basics
A divorce, sometimes called a decree of “dissolution of marriage”, is a court order terminating a marriage. After the court order is signed, the marriage no longer exists. Unlike an annulment, which states that the marriage never existed, a divorce is the termination of a valid marriage.
In the divorce the parties and/or court typically resolve all issues between the parties, such as division of property, child custody and visitation, and spousal and child support, if any.
- What if I don’t want a divorce?
- Where do I file?
- What documents will I need?
- Can I get support or other relief immediately?
- How do I find out what we own or owe?
- Do I have to go to court?
- What if I change my mind later?
- What if I’m afraid of violence or fraud from my spouse?
What if I don’t want a divorce?
If one spouse wants a divorce, he or she can get it (assuming the residency requirements have been met). One person cannot legally make another stay married against his or her will.
You can, however, ask the judge to order your spouse to attend counseling. If the judge thinks that there’s a reasonable chance to save the marriage, you may get your order. Chances are, though, if your spouse doesn’t want to attend counseling, it won’t help.
Where do I file?
You must file for divorce in the county where you have been living for the last 90 days. You must also have been a resident of the state for at least 6 months. If you haven’t been a resident of the county or state long enough, you will have to wait before filing.
“Filing” for divorce means filing a Petition for Dissolution of Marriage with the Superior Court Clerk of the appropriate county. The Petition is a relatively simple legal document, but it must meet the minimum requirements of the law, so either have your lawyer draft it or find legal form books to help you.
What Documents Will I Need?
There are several documents that may be filed in a divorce. These include documents related to child support, child custody, assets and debts, income and expenses, and property. The Petition tells the court that the spouse who is filing wants a divorce.
If the parties agree on the issues in a divorce, there may be a Marital Settlement Agreement, or MSA. This can be a complex document, and may be 10 to 30 pages long. It is a very detailed document, and if it is not properly drafted, your rights may be seriously impaired or limited.
Your divorce may require other documents, particularly if you and your spouse are in an adversarial proceeding. You may have court order to set out how your children and property will be managed during your divorce. You or your spouse may have discovery documents, helping you find out what property and debts the other spouse has. You also may have transfer documents, giving you or your spouse property interests after the divorce.
And if your divorce is particularly contentious, you may have additional motions, hearings and, ultimately, court orders to make the other side do or not do certain things.
Can I Get Support or Other Relief Immediately?
Yes. Your attorney can help you work out an arrangement for handling your immediate finances, decisions about the care of your children or the use of your home, and other matters that may need attention right away. This agreement can be drafted into orders that will be signed by the Court so that it is binding on you and your spouse. It can also be an informal agreement.
If violence or destruction of property is a concern, your lawyer can get a Temporary Restraining Order or Protective Order within hours.
How Do I Find Out What We Own or Owe?
Often, one spouse knows little about the community assets or debts. Maybe that spouse wasn’t involved in the family financial matters or just knew little about the couple’s financial affairs. If this is your situation, tell your lawyer. Your lawyer can help you learn about property and debts, either through a voluntary disclosure or through “formal discovery.’
“Formal discovery” means your lawyer sends your spouse’s lawyer legal demands for certain information and documentation. Preparing the demands and the responses to them is usually very time-consuming and therefore costly. Sometimes it is necessary to use formal discovery to be sure that all property and debts have been disclosed, but usually spouses can informally discuss what information is missing and agree how to supply it.
Do I Have to Go to Court?
If you and your spouse agree to the terms of your divorce, one of you must take it to the judge to be signed and finalized. That means that one of you must appear in front of the judge for about a minute. It is a very brief ritual that your lawyer can help you with.
If you and your spouse don’t agree to the terms of the divorce, you must appear in court for a contested trial. This is an adversarial hearing. It takes a great deal of attorney time and expense to prepare for and to prosecute a contested trial for divorce.
What If I Change My Mind Later?
Once the judge signs the final order granting your divorce, your property division is probably set in stone. It can be appealed only if the judge made legal errors. It can’t be appealed just because you don’t like it or changed your mind.
However, all the orders regarding your children — child support, custody, and the time you each spend with your children — are subject to change. If circumstances change significantly or the order is unworkable, you can seek to modify the original decree.
Courts do not make such changes readily, though, and it can be expensive to seek such changes. It generally is a good idea to get all the provisions in your order that you can live with and to which your spouse will agree.
What If I’m Afraid of Violence or Fraud from My Spouse?
If you are afraid that your spouse may hurt you or destroy or hide records or property, you can ask your attorney to request a protective order or injunction to prohibit such behavior. Such relief can be obtained quickly if necessary. Even if you don’t think immediate action is required, it is important to tell your lawyer if such behavior is a possibility.
View other articles for: Child Support, Divorce and Separation, Domestic Violence, Property Divison