Your Step-by-Step Guide to Divorce in California

The California divorce process can be overwhelming, especially if you’ve never dealt with a legal matter in court before. Anxiety about the litigation process is often amplified by the fact that there’s a lot at stake during a divorce. Life-altering decisions will be made about issues like child custody, child support, property division, and alimony, and it’s very common for emotions to run high. What’s more, the California divorce process is a bit different from what you may encounter in other U.S. states. That is why it is extremely important to partner with an experienced California divorce attorney who can help you reach a satisfactory outcome. In conjunction with seeking experienced counsel, it’s a good idea to have a solid grasp on the California divorce process. After all, knowledge is power, and you want to ensure that you have the information you need to move forward with confidence.

This comprehensive guide will take you through the divorce process step by step while sharing some important reminders for you to consider along the way. First, we will cover some frequently asked questions and address various matters that are important to understand before you file for divorce.

Step 1: Filing & Serving the Divorce Petition

The California divorce process begins when either party files a divorce petition. Even if both parties agree that they want to get a divorce, one of the two parties must file the initial petition and ensure that the petition is served on their spouse. Service must be done by a non-party who is over the age of 18, but service does not have to be accomplished by a licensed process server. In amicable cases, the petition can be served by mail or other non-confrontational means.

In some other states, the petitioner must state and prove the grounds for divorce, but this is not necessary in California because California is a no-fault state. Simply citing “irreconcilable differences” will suffice as the basis for the divorce request. There is no need to prove that anything sinister like adultery or abandonment led to the divorce. In fact, it is not necessary for both parties to agree to the divorce. Only one party needs to seek the divorce in order for the marriage to be terminated.

It is worth noting that even though California is a no-fault state, issues like domestic violence can still play a role in the divorce proceedings, especially when it comes to child custody or spousal support issues.

Other details that you need to include in your divorce petition include the dates of your marriage and separation, information about your children and a list of assets you claim to be separate versus community property. Your attorney can help you make sure your paperwork is complete and includes all the information you need to successfully file for divorce while preserving your rights.

It is important to complete the petition paperwork correctly to ensure you can properly request a default (if the other party does not participate) or pursue other rights which are only available upon request. Failure to properly plead your case in the petition could have a serious impact on the resolution of your divorce.

Waiting Period

In California, you must wait for six months after the divorce petition is served to the non-petitioning spouse before your marital status can be terminated. This is sometimes referred to as the “cooling-off period.” As long as minimum residence requirements are met for the state of California and county of filing, you can file for divorce at any time, no matter how long or short of a period you have been separated. However, there is no way to expedite the divorce process or waive the waiting period. This rule ensures that the divorcing parties are certain about their decision and gives them the opportunity to reconcile.

Keep in mind that if an agreement is reached on all issues before the six-month waiting period, that agreement and judgment can be filed and the parties can obtain enforceable support, custody, and property division orders. The only catch is that the marital status of the parties will not be returned to “single” until the “cooling off period” has expired.

Contested vs. Uncontested Divorce

Whether a divorce is contested or uncontested depends on if the divorcing spouses can agree about matters like property division, child custody, child support, and spousal support. If they can agree, the divorce is uncontested. If they cannot agree, it is considered contested.

An uncontested divorce tends to be much easier and less stressful to resolve than a contested divorce, but some couples are unable to reach decisions about these matters without court intervention. It can be relatively straightforward to navigate an uncontested divorce without legal representation, but if your divorce is contested you will surely need an attorney by your side to protect your best interests. Cage & Miles often works with parties on uncontested matters to be sure that all paperwork is properly prepared and filed with the court.

Step 2: Requesting Orders Pending Your Divorce

In California, divorcing spouses can request temporary orders for matters like attorney fees, child custody, visitation, child support, and spousal support. Temporary orders can be requested at any point in the divorce process. If temporary orders are granted, they may last throughout the divorce proceedings or be modified in subsequent hearings. At the conclusion of the divorce proceeding (via a trial or negotiated settlement), a more long-term decision will be made regarding these important matters.

If you request temporary financial orders during your divorce, you’ll need to submit an income and expense declaration to support your request. It’s essential to provide complete and accurate information. You’ll have a chance to negotiate the requested temporary orders with your spouse and try to reach a mutual agreement. If settlement is unsuccessful, then you will attend a hearing during which the judge will decide whether or not to grant the request for temporary orders.

Child Custody

When making determinations about child custody—both on a temporary and long- term basis—the court’s main goal is to protect the child’s best interests. A child’s best interest is defined by several factors and is case specific. These factors include each party’s unique relationship with the child, any special needs the child may have (and each party’s ability and willingness to cater to those needs), the suitability of each party’s post-divorce (or separation) living situation for the child, the child’s safety, the child’s education, and any evidence of past abuse or neglect. The judge will try to look at the big picture created by all of these factors to determine what outcome will be in the best interest of the child. Custody is always modifiable as circumstances change.

Restraining Orders

Sometimes extreme situations can make it necessary to seek a restraining order against your spouse. Domestic violence can add an extra layer of fear and complexity to your divorce case. It is important to seek protection if you feel like you may be in danger. Courts can issue temporary and permanent restraining orders, also referred to as protective orders.

• Temporary restraining order: A temporary restraining order is only valid for a few weeks until a court hearing for a permanent restraining order can take place.
• Permanent restraining order: Preceded by a temporary restraining order, a permanent restraining order requires more clear evidence of physical harm, harassment, or threats. It can last for any period of time up to five years. If you still feel like you are in danger after this time has passed, you can request a renewal of the protective order.

Spousal and Child Support

Child support and spousal support may also be determined on a temporary basis to last the duration of the divorce proceedings, and then on a more long-term basis at the conclusion of the case (either at trial or negotiated agreement).

• Temporary spousal support: This type of spousal support is paid while the divorce is being settled and is intended to give the lesser-earning spouse the ability to live by their pre-separation standard of living throughout the divorce process. In other words, it is intended to maintain the “status quo” while the divorce is being finalized.
• Permanent spousal support: Also referred to as “alimony,” post-divorce support is based on the factors outlined in Family Code section 4320. Unless agreed otherwise, permanent spousal support terminates upon remarriage of the supported spouse, death of either party, or order of the court.

Child support and spousal support orders can be modified by the court when there’s a change in circumstances such as a change of employment, change in timeshare of the children, or any other changes which impact the support calculations.

Step 3: Exchanging Information

The discovery process is the step in the divorce during which information is exchanged and explored. During the discovery process, attorneys for each party may investigate and review all relevant documentation and information. Sometimes, expert witnesses are brought in during this stage of the process. These experts often include:

• Forensic accountants: Accountants who investigate financial activity to opine as to business valuations or income available for support.
• Appraisers: Experts who can assess the value of real property, jewelry, antiques, vehicles, art, or other assets.
• Vocational examiners: Experts who can assess the ability and opportunity to earn for an unemployed or underemployed spouse.

The discovery process is important in every divorce, but especially so when a spouse is uncooperative or trying to hide assets, information, or income. It can also be a stressful time for people who allowed their spouse to be “in charge” of all the finances throughout the marriage.

It is sometimes easy to feel in the dark regarding your financial situation, but the right attorney can help you navigate this situation and get the information you need to make sure property division and support are handled fairly in your divorce proceedings.

Property Division

What belongs to you and what belongs to your soon-to-be ex? That question is answered through the property division part of divorce proceedings. California is a community property state. This means that any property acquired by either party after the date of marriage, except by way of inheritance or gift, is community property and shall be divided equally.

In California, if the parties would like to reach creative solutions on property division, a settlement negotiated out of court will be required. If the couple cannot reach a decision outside of court, the judge will allocate the marital property. The judge will consider factors such as purchase date, source of funds used to acquire the asset, and whether or not there have been any valid transmutation agreements.

Hidden Assets

Both spouses are required to disclose all their income, expenses, assets, and debts to each other through standard disclosure forms. Being honest about your finances during the divorce process is absolutely essential. Throughout the case, you are required to provide all material facts and information about everything from your bank accounts and real estate to intellectual property and income. Hiding assets during the divorce process in any way, shape, or form can result in serious consequences. You could face penalties like financial sanctions or loss of the hidden asset completely. You may also lose credibility and the trust of your judge, which can take an enormous toll on the success of your case.

High-Net-Worth Divorce

When one or both parties in a divorce has a high net worth, this presents its own set of challenges in the courtroom. Individuals with high net worth should consider certain courses of action when it comes to their divorce process. For example, they will need to think about the potential tax consequences when transferring assets. If they have a valid premarital agreement, this will likely provide them some protection and make the process easier, but they need to consider the possibility that the prenuptial agreement could be disputed. They also need to consider the complexities of potential spousal support orders as well as the risk of hidden assets or failure to disclose assets. Forensic experts can be a great tool for tracing separate property claims, determining income available for support, and conducting business valuations. At Cage & Miles, we have extensive experience dealing with the unique challenges of high-net-worth divorces and we are eager to guide you through this process.

Step 4: Mediation, Collaboration, or Settlement Negotiations

Though popular movies like A Marriage Story may have led you to believe that every divorce concludes with a ruthless battle in court, this doesn’t necessarily happen in real life. Many couples choose to work out their issues and come to a mutually beneficial agreement through mediation, collaboration, or settlement negotiations. You may be able to work out a settlement simply by talking to one another, especially if the situation is straightforward and you agree about how things should be handled.

Even when things are a little more complicated, it doesn’t necessarily mean you have to go to court. Through the mediation process and collaborative divorce, you can work with experienced professionals to find solutions that work for the family. If you choose collaborative divorce, you will work with neutral third-party advisors, such as an attorney, a financial advisor, and a mental health professional.

Ultimately, it’s only if you are unable to reach a resolution through other means that you will be required to go to trial for resolution of a particular issue in your divorce. However, certain factors make a trial necessary or even inevitable. These can include instances of abuse or a spouse who is unwilling to negotiate with you.

Mediation

If you want to make sure that your voice is heard during your divorce and you aren’t comfortable with handing big decisions about your life over to a judge, mediation may be the right path forward for you. Mediation is a popular way of resolving family law matters like divorce because it is generally less expensive, less stressful, and more private than traditional litigation. It also allows you to have more of a say in the arrangements that will affect your future. Cage & Miles lawyers are qualified to assist with the mediation process. We can act as a neutral third party to help facilitate an agreement between you and your former partner on the terms of your divorce. We can also act as consulting attorneys to advise you and protect your interests through the mediation process with an outside neutral third party.

Collaborative Divorce

Many people don’t understand the difference between collaborative divorce and mediation. The primary difference is that in collaborative divorce, the parties contract out of binding litigation by hiring a team of collaboratively trained professionals, while in mediation there’s just one neutral attorney who mediates. In collaborative divorce, the divorcing spouses will participate in team meetings working with other professionals like financial advisors, mental health professionals, and more. One downside of collaborative divorce is that if a resolution is not reached, the attorneys must withdraw from the case and will not be able to help their clients with subsequent litigation. You would need to start over with a new attorney if you pursue litigation after attempting a collaborative divorce.

Negotiated Settlement

The negotiated settlement is any agreement reached by the parties. This can occur with both parties self-represented, represented by counsel, in mediation, or in the collaborative process. Before bringing any case to trial, San Diego courts will require the parties to attend a mandatory settlement conference. During a mandatory settlement conference, the parties and their attorneys will meet with a neutral third party volunteer to attempt to resolve the remaining issues. If a settlement is reached, litigation will not be required and the parties have resolved their matter in a less expensive and more expeditious manner.

Step 5: Trial

While most people agree that the best-case scenario is to settle your divorce outside of court, sometimes litigation is unavoidable. In fact, there are certain scenarios and circumstances that will likely result in litigation. For example, in cases where there’s a history of domestic violence or abuse in the marriage, going to trial and litigating the divorce is usually a strong possibility. There are cases involving domestic violence where issues like restraining orders, custody, and support can be resolved through a negotiated settlement, but this requires competent counsel on both sides and willing parties.

Between two reasonable parties, it’s often possible to reach a mutually satisfactory agreement outside of court; however, there are occasions when stubbornness or strong opinions make this difficult. Trial can become necessary when there is a dispute over a “winner takes all” issue such as the validity of a premarital agreement or the characterization of an asset as separate or community property. These scenarios may also lead you to need to pursue litigation, but the other issues may be resolved out of court. You can take all or one issue to trial. Our attorneys make their best efforts to resolve as many issues outside of court as possible to reduce the time and cost of litigation.

Going to trial can be scary because it can feel like handing your fate over to a stranger, even though that stranger is a judge. However, having the right attorney by your side can make a huge difference. The Cage & Miles team is here to help you make the most of your time in family court.

Set Aside of Negotiated Settlements or Court Orders

At the end of any case, the parties often ask - is this really over? What can he do to get out of the support order? Will she really share the children equally with me? What if I find out he is hiding money in a Swiss bank account? Will he change his mind about paying me for half of the business? Both court orders and negotiated settlements can be set aside through a proper motion filed within certain time limits. The grounds for a set aside are specific and vary from fraud and duress to mistake and excusable neglect.

Modifications to Support and Custody Orders

Once a judge has signed off on an order of dissolution, both spouses are required to comply with those terms. However, if circumstances change in the future, it’s possible to request modifications to custody and support orders. Modifications to court orders are typically requested when one of the former spouses remarries, one parent fails to uphold his or her obligations under the child custody agreement, a parent wants to move the children out of state, children develop new financial requirements, abuse or neglect is suspected, or a change in employment. If you are facing one of these situations or something else that you think warrants a modification of court orders, the Cage & Miles team is here to help.

FAQs

Do I Need To Hire A Lawyer?

It is possible to file for divorce without an attorney; however, ending a marriage can be complicated. If you have assets or children, getting legal guidance can help you protect your interests and ensure your paperwork is done correctly the first time. Additionally, filing for divorce without a lawyer may become even more difficult if your spouse decides to hire one. The attorneys at Cage & Miles have extensive experience in family law and will work hard to serve as a resource while working toward your desired outcome.

Why Would I Choose Mediation Over Litigation?

Mediation solutions offer several benefits. Formal mediation is private, economical, and efficient. In addition, mediation allows parties to retain control over the decision- making process. The compliance rate is often higher for mediated agreements than court-ordered agreements. However, if spouses reach an impasse on any or all of the major terms of their divorce, like property division or child support, or if there was domestic abuse within the marriage, those issues may be separately litigated.

How Much Does A Divorce Cost In California?

The cost of divorce in California will vary depending on the nature of the case, number of disputed issues, complexity of income structures and assets, and the parties’ ability or willingness to reach agreements outside of court. In addition to legal fees, both parties will be required to pay filing fees to the court beginning with a “first paper fee” of $435 per party.

Does It Matter How Long You’ve Been Married?

Yes. Hitting the 10-year mark makes a big difference when it comes to certain aspects of your divorce. A “long-term marriage” is any marriage lasting 10 years or longer. In a “short-term marriage” (a marriage of fewer than 10 years), alimony is generally only available for half of the length of the marriage. However, the length of the marriage isn’t the only factor that is considered when the court is determining amounts and duration for spousal support.

Ready to Take the Next Step Toward Your New Life?

Contact Cage & Miles family law attorneys today for a consultation and start your journey toward peace of mind.