Despite having a well-established divorce law that dates back to 1851, California has one of the lowest divorce rates in the country. Only 9.3% of the population in California are divorced. While ending a marriage is not an easy decision, it’s important to know how to advocate for yourself, your children, and your property when filing a divorce.
In this article, we provide an overview of the divorce process in California and answer the most frequently asked questions.
How to Prepare for Divorce in California
Before going through the divorce process in California, it’s best to find out if you are qualified to file for a divorce under California law. Here are some things you will need to prepare:
1. California is a “no-fault” divorce state.
California is one of 17 states that allow for “no fault divorce.” In fact, “no fault” (deemed irreconcilable difference) is one of only two grounds for divorce along with permanent legal incapacity to make decisions. This means that in order to dissolve a marriage, there is no need to show wrongdoing by either party. To get a divorce, the person filing the divorce (also known as the petitioner) does not need to show evidence of the other party’s breach of marital obligations.
2. You need to meet the residency requirement.
To get a divorce in California, one of the married spouses must have been a resident of the state of California for at least six months, as well as a resident of the county where the petition is to be filed for at least three months.
The exception to this rule is for divorce proceedings of same-sex marriages. In this case, either spouse can file a divorce regardless of being a resident of California, if the marriage was entered in California and neither party to the marriage currently resides in a jurisdiction that will dissolve the marriage due to marriage being between same-sex partners. However, to qualify, the petition for divorce must be filed in the county where the marriage was celebrated.
3. There is a mandatory six-month waiting period.
It is important to keep the waiting period in mind before making any plans to remarry directly after getting divorced. California state law requires a waiting period of 6 months from the time the respondent spouse is served the divorce papers. While the judicial approval of the divorce papers can take less than six months, the divorce will not be final until this waiting period has lapsed.
Steps to Getting a Divorce in California
Here are 10 steps to getting a divorce in California. Depending on your situation and preferences, you may not have to go through all of these steps.
1. Petitioner Files the Divorce Petition.
To initiate the divorce process in California, the petitioning spouse, known as the petitioner, needs to fill out the following divorce forms:
- Divorce petition: Also known as a petition for dissolution, this form requires the petitioner to fill out basic information about the marriage, including relevant dates, names of children (if any), the grounds for divorce, child support, spousal support, and property (separate and community property). The divorce petition may also contain a petition for restraining orders, in cases of domestic violence.This form is submitted in the county where at least one of the spouses has resided for at least three months.
- Summons: This form contains details on the divorce process, including limitations on what each spouse may or may not do while the divorce is being processed, especially in relation to common children and property.
- Declaration Under Uniform Child Custody Jurisdiction Act: This form is required if the spouses have minor children.
After filing the petition, the petitioner must also inform the other spouse, also known as the respondent, to the divorce petition. In addition, the respondent must be served with the divorce papers by a third party. The server of the divorce papers can be a friend or relative over the age of 18, a county sheriff, or a professional process server, who must fill out a Proof of Service form. This Proof of Service form will then be presented to the court clerk where the divorce petition is filed.
2. Respondent Submits a Response to the Petition.
Within 30 days of being served divorce papers, the respondent must file a response with the appropriate court. If the respondent does not respond, then the court may grant the terms of the divorce as requested by the petitioner. Depending on the response, this may result in a contested or uncontested divorce.
Regardless of the response (or lack thereof), the divorce may still be granted even without the agreement of the respondent spouse, as long as one of the spouses has filed a petition for divorce.
3. Petitioner Files a Request for Temporary Custody or Support of Children.
Requesting for temporary custody or support will only be necessary if the divorcing spouses have minor children. This request will help determine which spouse will get temporary custody and/or be required to support children while the divorce proceedings are still pending.
4. Respondent Files a Response to the Custody and Support Request.
If the respondent spouse has any objections or proposed amendments to the custody and support arrangements requested by the petitioner, the petitioner will have to file a response. Similar to the response to the petition, a lack of response from either the respondent or from the petitioner to the respondent will allow the court to decide on custody and support based on the terms provided by the petitioner.
5. Either Spouse Files Request for Order Hearing.
In case either spouse would like the court to issue temporary orders regarding custody and visitation of children, support, or use of property, while the divorce proceedings are pending, either spouse may fill out a Request for Order Form. Take note that the respondent spouse may only file this if they were able to file a response. Similar to the original divorce petition, the request for order papers must also be served to the other spouse. Once this is filed with the clerk of court, you should get a date for a hearing, which both spouses must attend.
6. Both Spouses File Their Declarations of Disclosure.
During this step, both spouses must fully disclose all their assets and liabilities, as well as their income. Failure to provide accurate information may result in penalties, which may include losing an entire asset to the other spouse. Ensure to have your financial documents ready, including tax returns from the last two years, documents relevant to community property that spouses jointly own, joint debt statements, and joint investments. Similar to previous steps, the documents and forms must be filed with the court and served to the other spouse. Proof of service must also be filed with the clerk of court.
7. The Discovery Process.
The discovery process, which includes both informal and formal discovery, is where each party obtains information from the other. This process ensures that both parties to the divorce, through a thorough and fair assessment of the facts, can negotiate an amicable and fair agreement. It also allows the judge to make fair decisions in case of disputes, especially in contested divorces.
8. Expert Witnesses May Be Involved.
When the parties to a divorce disagree on certain issues, the court may need the help of expert witnesses who can provide specialized knowledge and professional opinion on the issues. Forensic accountants, custody evaluators, and medical experts are a few examples of expert witnesses who may be involved in divorce proceedings.
9. Both Spouses Enter Settlement Negotiations.
These negotiations may be a long or short process, depending on how much the spouses agree on the divorce settlement, also known as a marital settlement agreement. The marital settlement agreement is a legally binding document between the spouses regarding the issues involved in the divorce.
10. Commencement of Divorce Trial and Final Judgment
Most divorces do not need to go to trial. If the divorce does go to trial, this is where both sides, especially in contested divorces, are given an opportunity to be heard, in order to enable the judge to reach a fair decision. After the trial, the judge will issue a written order which provides for the actual divorce as well as the court’s decision on contested issues. The decision is appealable within 30 days, after which, the divorce will be finalized after the lapse of the six-month mandatory waiting period.
When parents separate, and there are children under the age of eighteen involved, child custody and child support orders are usually d...
FAQ: How to File for Divorce in California
What Are the Requirements to Get a Divorce in California?
California is a no-fault divorce state. However, when the divorce is filed on the ground of permanent legal incapacity, the petitioner must submit proof that the spouse was, at the time the petition was filed, and remains, permanently lacking the legal capacity to make decisions. Such proof must be in the form of competent medical or psychiatric testimony.
As stated above, California also has a residency requirement: at least one of the spouses must be a resident of California for the last six months and a resident of the county where the divorce is being filed for the last three months. An exception to this requirement would be for same-sex marriages which were celebrated in California, when the spouses have no means to get a divorce in the state where they reside (i.e. a state where same-sex marraige is not recognized).
How Long Do You Have to Be Separated Before You Can File for Divorce in California?
California does not require a separation period before filing for divorce. However, there is a mandatory six-month waiting period starting from the date the petition for divorce is filed before the divorce attains finality.
Do You Need an Attorney to File for Divorce in California?
In uncontested divorce, where both spouses mutually agree on the terms of the dissolution of the marriage and other related issues, hiring an attorney may not be necessary. However, it may still be in the best interest of both spouses to hire an attorney to ensure that both spouses get a fair deal from the divorce.
How Much Does It Cost to File for Divorce in California?
The petitioner will need to pay a filing fee of $435, which may be waived by the court upon request. Depending on the complexity of the divorce case, you may also need to spend money on attorney’s fees, which could cost up to thousands of dollars.