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A marriage ending can be an emotionally difficult time for any family. To make matters worse, there is a legal process that must be followed and it can be quite confusing. If you are going through this process, you may have heard the term “legal separation” and wondered how it is different from a divorce. …
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Deciding to get divorced is one of the biggest decisions you’ll ever make. It’s important to understand that your divorce won’t happen overnight. The divorce process in California is intricate and time-consuming. Learning about the process and knowing what to expect can help to make it easier to navigate your divorce.
The divorce process begins when one spouse files a petition for divorce with their local court. The petition provides the court with important and relevant information. This includes the full names of each spouse and any children they share, the date of the marriage, and the reason for the divorce.
Grounds for Divorce: California is a no-fault divorce state. This means that spouses don’t have to point fingers or blame one another for the split. Instead, they can simply say that irreconcilable differences prevent them from continuing their relationship. Alternatively, spouses can file for divorce on the grounds of insanity.
In addition to the petition, the filing spouse (“petitioner”) may also file a request for temporary court orders. These may concern things like child custody arrangements, child support, or alimony. Temporary orders are only valid for the duration of the divorce process. Permanent agreements will become effective once the divorce is finalized.
While filing the petition does initiate the divorce process, it’s not official until the non-filing spouse (“respondent”) receives a copy of the divorce papers. This happens through a process called “service.” Service ensures that the non-filing spouse is notified about the legal proceeding and has the opportunity to respond.
Process of Service: In most cases, the petitioner will have a neutral third party over the age of 18 to deliver copies of the Petition, Summons, and other divorce papers directly to the respondent. Once the papers have been served, the process server must sign a Proof of Service of Summons. This document must be filed with the court in order for the divorce process to be official. Alternatively, the petitioner could mail the divorce papers using USPS Certified Mail and submit the Acknowledgment of Receipt as proof of service.
Once service is complete the non-filing spouse will have 30 days to respond to the divorce papers. How this part of the divorce unfolds will generally depend on whether spouses have a contested or uncontested divorce.
Contested Divorce: Spouses disagree about some or all of the terms of their divorce. This may include disputes about how property should be divided or who gets custody of the kids. If the respondent doesn’t agree with the terms proposed by the petitioner, they must relay those concerns in their response to the divorce papers. The respondent can contest facts or allegations and/or propose different terms.
Uncontested Divorce: Spouses agree on all of the terms of their divorce. When this happens, the respondent can either ignore the divorce summons or file a response in which they agree to the terms.
If the respondent ignores the divorce papers or chooses not to respond, the divorce will be considered a default. In a default, the request for the divorce and the terms proposed by the petitioner will be granted. The respondent will have lost his or her right to contest any elements of the divorce.
While it is possible for spouses to agree on all aspects of the divorce from the very beginning, it is not particularly common. Most divorces are contested. When spouses have a contested divorce they must do everything in their power to negotiate the terms of the split privately.
Issues that may have to be resolved in a divorce include:
Courts have the authority to step in and make unilateral decisions, but are often hesitant to do so. In many situations, spouses are even required to attend mandatory mediation sessions to hammer out the details of a divorce. Courts will only step in if these good-faith efforts to negotiate are unsuccessful.
According to Los Angeles divorce lawyer Steven Fernandez, it’s important for spouses to put in the work to negotiate the terms of a divorce themselves. “The terms of your divorce will affect you for the rest of your life,” he explains. “You want to retain as much control over these important decisions, as possible.” Fernandez suggests that divorcing spouses use the tools that are available to them. “Processes such as mediation, arbitration, and even collaborative divorce can help to lower costs and keep decisions in your hands.”
Mediation: A neutral third party (“mediator”) works with spouses individually and collectively, helping them identify big-picture issues and move toward mutually-agreeable resolutions. Mediation allows spouses to retain complete control over decisions related to their divorce.
Arbitration: A neutral third party (“arbitrator”) presides over a hearing in which both spouses (and their attorneys) propose arguments, offer evidence, and present witnesses. Arbitration is essentially a private trial. Once both sides have presented their cases, the arbitrator will make final decisions about the couple’s divorce. The terms decided by the arbitrator are final. Arbitration can be a great alternative to court because it is private, less-expensive, and generally less time-consuming.
Collaborative Divorce: Collaborate divorce is a great option for spouses who are committed to avoiding the court system at all costs. In this process, attorneys representing both spouses sit down and negotiate the terms of the divorce. Both sides may offer evidence and even present witnesses. Spouses must commit to resolving the split privately using collaborative divorce. If the process is unsuccessful, each spouse must hire a new attorney and start from scratch. Collaborative divorce can be great because it allows spouses to retain complete control over negotiations.
What happens if spouses can’t see eye-to-eye? What if there are legitimate disputes about how terms of the divorce should be resolved? When negotiations stall, spouses can turn to the courts for help. A family law judge will schedule a trial date and expect to hear arguments from both spouses. When a divorce goes to trial spouses lose the right to control the outcome. The decision(s) made by the court will be final and binding. Both spouses will be required to comply with those terms. Violating court orders, including those relevant to a divorce, can have serious legal consequences.
The divorce process will officially end when (a) the time requirement has been satisfied and (b) all terms of the divorce have been finalized.
Time Requirement: Divorce simply can’t happen overnight in California. State law requires that the process take, at the very least, six months to unfold. The clock typically begins to run when the non-filing spouse is served. You’ll be required to wait six months to finalize the divorce even if it is uncontested or you were able to agree to the terms quickly.
Finalized Terms: When spouses get divorced they must figure out how to divide one family into two. This can be time-consuming and stressful. Spouses must agree about how assets and debts are allocated, who gets custody of the kids, and whether spousal support is necessary. A judge will not sign off on the divorce until spouses can prove that they have finalized all relevant aspects of the dissolution.
Once (at least) six months have passed and terms have been negotiated, a California family law judge will review the case. If the terms of the divorce are acceptable, the judge will sign an Order of Dissolution. This order terminates the marriage and restores each spouse as a single person. At this moment, the divorce process ends.
Just because a divorce is finalized doesn’t mean that terms of the split can never be changed. Spouses can file a request with the court to modify the terms of their divorce. A modification request may be necessary if:
Courts will consider modifications to divorce orders when a spouse can demonstrate a valid and substantial need for the change. So, while the terms of a divorce are “final,” they can still be changed if there is a demonstrated need.
Divorce can be a complicated, time-consuming, and stressful endeavor. The decisions you make along the way will affect you for the rest of your life. It’s always best to work with an experienced divorce attorney. Your lawyer will work to secure the results you want and protect your family’s best interests.
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