Marriage and Divorce in California
Obtaining a divorce in California requires preparation and effective legal counsel. In California, as it’s a no-fault state, culpability is not an element of the divorce. Any spouse is entitled to petition for a divorce based on irreconcilable differences, simply asserting the union is not working out as expected.
The spouse initiating the process is the petitioner and the other spouse is the respondent. A petition for divorce is essentially a lawsuit, where a complaint is filed against another party requesting that action be ordered by a court. In the case of a married couple, one individual wants a judge to make a formal determination regarding the dissolution of the marriage, and if necessary, the terms of child custody, child support, distribution of property and debt, and sometimes alimony.
The process begins with the petitioner’s attorney gathering information in order to file the initial documents, the Summons and Petition for Dissolution, which includes details such as date of marriage, length of residency, terms of child custody, child and spousal support, and a listing of separate and community property. This information and the initial filing document is crucial as it proposes the petitioner’s terms for the dissolution of the marriage.
The next step for the petitioner is to have the complaint served upon the spouse. Service of legal documents is a legal requirement in order to provide notice to the respondent that a formal complaint for divorce has been filed. Effective service of process can be complicated and has strict legal requirements. Personal service is required after filing the initial divorce papers, which means that a third party adult must physically deliver the documents to the respondent. Once the court receives proof of service, divorce proceedings may commence.
The respondent spouse has 30 days from the date of service to respond to the complaint, and is afforded the opportunity to formally present defenses to assertions or raise additional issues. A failure to respond would result in a default judgment, allowing the court to grant to the petitioner the requests in the initial petition.
Unless the spouses reach an agreement regarding all terms of the divorce, the litigation process begins and may last at least six months in California. If at any time during this process the spouses agree to all the issues, they may formally document their agreement, execute and file it in court. Courts encourage parties to resolve their differences via Alternative Dispute Resolution, various tools to aid in negotiating an out-of-court settlement. Mediation is a valid option when spouses are open to discuss the pending issues in a divorce. It’s an informal process where a mediator, a neutral party, meets with both parties and facilitates negotiation of all issues. Mediators are highly trained in being able to communicate to both parties the pros and cons of their respective arguments in order for them to achieve a more realistic expectation of the potential results of litigation. Arbitration is another form of resolution between spouses, where they allow a neutral arbitrator to hear their case and make a binding determination of all issues in their divorce. Collaborative divorce requires both spouses waiving their right to contest the issues in court, and essentially commit to agreeing to all terms of the divorce in a private proceeding though collaborative divorce attorneys. These ADR methods are beneficial to all parties when they are interested in avoiding the stress of appearing in court. When petitioner and respondent reach a mutual agreement through any of the ADR procedures, said agreement is presented to the presiding judge for review and approval.
In the alternative, spouses unable to reach an accord on every issue in their divorce must proceed to trial and place the case in the exclusive determination of the judge. Trials can be frustrating due to having lost the ability to further negotiate, as will as sensing a loss of control over the matter, and can be quite expensive.