By Warren R Shiell, Esq.
Attorney at Law
www.La-Familylaw.com
What are the grounds for divorce in California?
First, it is called Dissolution in California. California is a no fault state which
means that the Court will not examine which party is at fault in deciding issues
such as the division of community property and support. There are, however,
residency requirements. Either you or your spouse must have lived in
California for the last 6 months, AND the county where you plan to file the
divorce for the last 3 months. If you and your spouse have lived in California for
at least 6 months but in different counties for at least 3 months, you can file in
either county.
How do I start the dissolution process?
You must file and serve on your spouse a Petition and Summons. The Petition
and Summons must be filed with the Court before you can serve it upon the
other spouse. You are now the Petitioner in the action and your spouse is the
Respondent. Unless you qualify for a waiver of the fee, there is a filing fee
which at the time of writing is $320. The Petition and other court forms can be
found at http://www.courtinfo.ca.gov/forms. If there are children you also have
to serve and file a UCCJEA declaration regarding the children of the marriage.
What do I do if I am served with a Petition and Summons?
As the Respondent you have 30 days to file and serve a Response. Unless you
qualify for a fee waiver, you must also pay the $320 filing fee. If you do not file
and serve in time your Response, the Petitioner may apply for a default
judgment.
Are there any other consequences of being served with a Petition and
Summons?
Yes. First, the date of service starts the clock ticking for the earliest time when
you can get a Judgment of Dissolution. The marital status of the parties cannot
be terminated any earlier than 6 months after the date when the Petition and
Summons were served. Second, the Summons has automatic restraining orders
which are applicable to both parties. If either party breaks one of these orders
they may be held in contempt of Court.
These orders provide that both parties (1) may not remove either of the
children of the marriage from the State of California without obtaining the
written consent from the other, or a Court order, (2) may not cash, borrow
against, cancel, transfer, dispose of, or change the beneficiary of any insurance
or other coverage held for either’s benefit, (3) may not transfer, encumber,
conceal, or in any way dispose of any real or personal property without the
written consent of the other or a Court order, except in the usual course of
business or for the necessities of life. Further, if either party wishes to make
any extraordinary expenditure, they must notify the other at least five days
before they incur the expense, and in the event that they make any such
expenditure, they must be prepared to account to the Court. Parties are not,
however, precluded from using community property to pay reasonable attorney
fees in order to retain legal counsel in this action.
What happens after the Petition and Response is served and filed?
Often the parties will attempt to agree on issues such as temporary custody
and visitation and temporary child and spousal support. Agreements on these
matters are often incorporated into a written Stipulation and Order and filed
with the Court. If the parties cannot agree on these issues they may file an
Order to Show Cause and request the Court to decide these issues for them. If
custody and visitation is in dispute, the Court will first send them to
Conciliation Court where a trained mediator tries to help the parties agree on a
parenting plan. In Los Angeles conciliation services are free. An appointment
can be made by calling conciliation services at (213) 974-5524. If the parties still
cannot agree, the Court will make a temporary custody and visitation order that
is in the best interests of the children. The temporary order will continue until
the parties can reach an agreement or until custody and visitation is resolved
after a trial.
What happens if the parties can agree on all issues?
If the parties can agree on all issues in the dissolution, that agreement can be
incorporated into a Marital Settlement Agreement or a Stipulated Judgment. A
court appearance is not usually necessary in this situation. However, the Court
will require that each party has made full disclosure of all their assets and
liabilities and also any business investments and opportunities. Each party is
required by California law to file a preliminary and final "declaration of
disclosure" with the Court that they have served an Income and Expense
Declaration and Schedule of Assets and Debts on their spouses. The final
declaration can be waived by the written agreement of the parties. The
disclosures will list each spouses community property assets and debts and
separate property. Most disputes involve the extent and valuation of
community property assets. If a spouse tries to hide assets, we can employ
various discovery tools and force the other side or a third party to turn over
financial records. In complicated cases it may be necessary to employ the
services of experts such as forensic accountants, appraisers and pension
specialists.
Do all community assets and debts have to be divided equally?
Generally yes. There are exceptions such as personal injury awards. This equal
division is usually accomplished by dividing the assets and debts equally or by
awarding an equal value of assets and debts to each party.
© 2007 Warren R. Shiell. All rights reserved. Divorce Lawyer Los Angeles, Divorce Attorney Los Angeles, Divorce Lawyer Santa Monica The information contained in this website is an "Advertisement." It is for informational purposes only and shall not constitute legal advice. Nothing in this Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when this office agrees to represent a Client and a Client signs a written retainer agreement.
