Most commonly asked questions about divorce in California answered - the Divorce FAQ
In some circumstances in California, a spouse can get a divorce decree without the consent or even the knowledge of the other spouse. In a default divorce, the court renders a decision on the divorce after the respondent fails to respond.
A divorce by default occurs when the filing spouse does not get a timely answer to the divorce petition. In California, the petitioning spouse may proceed with the divorce without the defendant’s participation if the defendant receives the divorce papers but fails to respond within 30 days after receiving the petition. In California, it is even possible to obtain a divorce by default if the petitioner fails to serve the defendant with a copy of the complaint.
If the defendant purposefully evades the process server in an attempt to delay the divorce, the court may allow the petitioner to serve the defendant in a different manner. A judge may, for instance, permit the petitioner to publish the divorce notification in the newspaper or through certified mail. Even if the defendant never saw the publication, the divorce proceeding will begin if the defendant fails to react.
After a divorce by default has begun, it is difficult for the defendant to reclaim his or her rights. If the defendant continues to remain silent, the petitioner will receive the divorce decision according to his or her wishes, since the defendant was not present to contest the divorce. Once the courts have finalized the divorce, it cannot be reversed or annulled, even if the defendant never received the petition and was unaware a spouse filed for divorce.
There is no way to accurately predict the cost of a divorce. The reason for this is every case is different. Specifically, the amount you spend on a divorce attorney depends on two factors: how complicated the issues are and how much the parties litigate. The two most expensive issues to litigate in family law are child custody and determination of cash flow in a business, which is part of division of property. If you and your spouse are able to resolve custody and visitation issues before ever filing the divorce action, and if you hire a competent divorce attorney you will probably be able to get through the divorce process with relatively little expense, time and stress.
No. A divorce always takes at least six months to complete. Sometimes the parties agree to all the terms of the divorce before the six months has run. In this case, the parties can prepare and finalize a divorce judgment before the six month waiting period expires, but they will not be divorced until the six months had run. Even if a judgment is prepared before the six month waiting period expires, the terms of the agreement are still binding on both parties. They are just not free to remarry until the six months have run.
Other times, people do not resolve all the custody, visitation, child support, spousal support, and division of property issues within the six month time period. In this case, a divorce will take longer than the six month time frame because the parties have a right to litigate the terms of their divorce and resolve the issues before a judicial officer.
In situations where the divorce process lasts more than the six month waiting period, it is possible to “bifurcate the status” of the marriage. This means that the court declares you divorced as soon as the six months are up even though you have not resolved the remaining issues of division of property, child support, spousal support, custody, etc. You then litigate those matters at a later date. A bifurcation is not common, and only needed if the divorce is relatively complicated and one party already has plans to remarry.
Yes, if both you and your spouse are able to agree on all issues in your California divorce, meaning child custody, child visitation, child support, spousal support, division of property, division of any pension plans, and division of debts, you can avoid litigation. You can simply have someone write up a divorce judgment, sign it, and be done. This is usually the best outcome.
The waiting period begins in a California divorce once the divorce papers are filed and served. Thus, even if you are your spouse are separated for years, the waiting period does not start until the divorce action is filed and the papers are properly served upon the other party.
There are several differences between a legal separation and a divorce. There is no waiting period in a legal separation, and you do not have to be a legal resident of the state. All property is divided, child support is ordered, spousal support is ordered, custody and visitation are resolved, and a divorce judgment is entered at the end of the case, except that the parties are not divorced in the end. Additionally, both people must agree to a legal separation or the proceeding will automatically end in divorce.
After the initial paperwork is filed with the court, each party then has a right to conduct “discovery.” This allows each party to ask the other person questions and may require each party to produce written documentation about his/her income, assets and debts, or about any other information which may be relevant to the case. After the discovery process is complete, the divorce case is ready to be set for trial. Once again, nothing happens unless one or both of the parties cause it to happen. For instance, the Response will not be filed by the court, the Default will not be entered, discovery will not be conducted, and the case will not be set for trial unless the proper paperwork is filed and served.
If you are the one who has been served with divorce paperwork, you need to know that you have 30 days to file a “Response ” with the court. This is a document which tells the court that you are interested in the outcome of the proceedings, that you wish to be notified of any court date, and that you will be participating in the divorce process by appearing in court to help the judge make his/her decisions.
If a Response is not filed, the matter is decided by “default.” This means that the court decides the outcome of the case based upon only one side’s versions of the facts. Thus, when there is property or children involved, it is very important to file a Response.
A divorce in California always takes a minimum of six months. This is called a “waiting period.” The waiting period is to make sure you and your spouse do not change your mind about going through with the divorce. The courts want to give you time in case you decide to reconcile. You cannot get a divorce in California until the waiting period has expired.
The divorce process begins once the paperwork is filed in court. Nothing happens in the process unless someone moves the case along. The courthouse stores, but does not process, your paperwork for you. They simply stamp the documents and keep the records. This means that no one in the courthouse will tell you what needs to be done or how to do it. Either you have to figure it out on your own or hire a lawyer to help you.
The first step in the divorce process is filing and serving the documents. This starts the waiting period. The next step is to determine whether temporary relief is needed. In other words, if you need some type of financial support, an order to sell your house, an order to determine custody of the children, or an order allowing you to move out of the state, you need to ask the judge to make the order. This is done by filing a “Request for Order.” The person filing the Request for Order usually has the burden of proof.
No. California is a no-fault state. This means that anyone can get a divorce in California at any time, for any reason. If one spouse does not want a divorce but the other one does, the court will grant the divorce over the objection of the other spouse. This is called “irreconcilable differences.”
Yes. You need to know if a lawsuit is filed against you so you can defend your legal rights. If someone is trying to serve you with court documents, make sure you let them give you a copy so you know what is going on. Otherwise, court orders could be made without your knowledge.
Yes. Child support and child visitation are not related. If your husband is not paying you child support, you need to obtain a court order requiring him to do so. If you have a court order and he is not honoring it, there are ways to make him pay. In California, child custody is determined by what is in the best interest of the children. Custody is based upon a number of factors, including which parent is more likely to allow the other parent to have frequent and continuing contact with the children. If you do not allow your husband to see the children because he is not paying you child support, you risk losing custody.
That depends. California is a no-fault state. This means that a person’s morality cannot be considered in determining the outcome of a case. If your spouse had an affair during the marriage, this is not a basis to deny your spouse visitation, nor is it, in and of itself, a reason to obtain custody of the children. However, if the affair interferes with your spouse’s ability to care for your children, then it is a different matter. For instance, if your spouse is not home, comes home late at night, or is otherwise neglecting the children as a result of his/her extramarital affair, the court could find that you are best able to care for the children and award you custody.
Not necessarily. Normally, the terms of a California divorce are final and cannot be changed. However, sometimes you can obtain a modification of a divorce judgment. There are some aspects of a divorce judgment which can always be modified; these include child custody, visitation, child support and spousal support issues. Correcting a mistake made in a judgment is much more difficult.
California’s regulation is justified on the grounds that the state wishes to guarantee that both parties are sincerely committed to ending their marriage or partnership. A prolonged waiting period allows couples to acquire perspective and maybe try reconciliation.
In California, either parent may have exclusive custody or the parents may split custody. Although the judge makes the final decision about custody and visitation, he or she will typically approve the arrangement (the parenting plan) reached by both parents.
California law expresses no favor for one parent over another in a custody dispute. Custody determinations must be made with the child’s best interests in mind. That being said, moms have historically been granted custody more frequently than fathers, as they are frequently the primary caregivers for their children.
A quick divorce can be obtained by opting for a summary dissolution. To qualify, your divorce must be uncontested, your marriage must have lasted less than five years, you cannot have any children together, your joint debts and assets must be modest, and both parties must agree to waive spousal support.
The guideline stipulates that the paying spouse’s support should be presumptively 40% of his or her net monthly income, less 50% of the receiving spouse’s net monthly income. If child support is a factor, spousal support is determined after child support. Speak to a experienced Murrieta divorce lawyer about it.
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