Are you contemplating filing for
divorce? Or, has your spouse already served you divorce papers? In either case,
the best way to navigate your divorce is to educate yourself on the laws
so you can understand your legal rights, and so you can strategize your
actions from this point forward.
As experienced divorce attorneys, we have learned through years of handling
divorce cases throughout Los Angeles that
preparation are keys to a successful divorce and by successful, we mean one that our
client can walk away from feeling good about.
If this is your first time going through a divorce, you certainly have
a lot of questions. If you have not yet filed for divorce, we suggest
that you conduct your due diligence before you tell your spouse what you
are planning to do. Essentially, the more you know about the process,
the greater the advantage.
To get started learning about California’s divorce process, you can
begin by reading the information provided below. If you have further questions,
please don’t hesitate to contact our office to schedule a free consultation
with an experienced member of our legal team.
Grounds for Divorce in California
In California, we have two grounds for divorce, and they include 1) irreconcilable
differences, and 2) incurable insanity, which is rarely used. Also, California
is a “no-fault” divorce state, so the judge isn’t usually
interested in the
reasons why a couple is divorcing, all that matters is that the marriage is irretrievably broken.
In order to file for divorce in California, either you or your spouse must
have been living in the state for at least six months, and at least three
months in your county before you file a divorce action in court. However,
there is no residency requirement for spouses filing for a legal separation.
Legal Separation vs. Divorce
If someone does not want to divorce because of religious differences, moral,
tax or health insurance reasons, they can file for a
legal separation instead. With a legal separation, the court makes orders about property
child support, and
child custody, but the couple remains legally married.
Rules to Follow During a Divorce
Once you or your spouse files for divorce, you will have to follow specific
rules. The court will issue temporary restraining orders that take effect
automatically when the divorce action is filed. For example, neither you
nor your spouse will be able to take your children (under the age of 18)
out of California without the other parent’s written permission
or a court order. Neither of you can make any big purchases, and neither
of you can transfer property or cancel or change the beneficiaries listed
on your insurance policies.
Summary Dissolution for Simple Divorces
Is there a simpler way to obtain a divorce? Yes, some couples qualify for
a simplified divorce process called a summary dissolution. A couple may
qualify if both spouses agree on how to divided their assets and debts
and: 1) they have not been married longer than five years, 2) they do
not have any children from their relationship, 3) they do not own a home
or any real estate, 4) their community property is worth less than $25,000,
not including automobiles, 5) their total debt is less than $4,000, except
for an auto loan, and 6) both spouses waive their right to spousal support.
Filing for Divorce
To file for a divorce, your divorce mediator or divorce attorney will prepare a
Petition and Summons, which will be filed with the clerk of the superior court in Los Angeles
County. Then, copies of your
Petition and Summons, along with a blank
Response, will be served to your spouse by someone other than you who is at least
18 years-of-age. Your spouse will have 30 days to respond.
Temporary Court Orders
Since a divorce action takes at least six months, you and your spouse have
the right to ask for a hearing so a judge can decide whether to issue
any temporary orders for child custody, visitation, child support, spousal
support, an award for attorney fees, or a restraining order (domestic violence cases).
Domestic Violence Cases
If your spouse abuses you or your children, call 911 immediately for help.
If necessary, the police can contact an on-call judicial officer and ask
them to issue an
Emergency Protective Order (EPO) on the spot. The EPO can prohibit your spouse from coming near you
and your children, and it can order him or her to leave the family home.
For a longer-lasting restraining order, we can help you ask the court for a
Temporary Restraining Order.
Spousal support is money that a higher-earning spouse pays to the lower-earning
spouse during and after a divorce. Spousal support is not automatic, but
when it is ordered, it’s usually scheduled to last for half the
length of the marriage, unless the marriage lasted 10 or more years, then
it may be awarded without an end date.
Community Property Laws
California is one of a handful of
community property states. Under California’s community property laws, each spouse
is entitled to 50 percent of the marital property (community property)
obtained during the course of the marriage. Separate property, however,
remains separate. Examples of separate property include assets owned before
the marriage, and money received as a gift or inheritance before or during
Determining Child Custody
The good news is that assuming the spouses are stable individuals and loving
parents, they can put their heads together to create a parenting plan,
which outlines their plans for child custody and visitation. If child
custody is a contested issue, then the judge will have to make a decision
based on the best interests of the children. If domestic violence is a
factor, the abusive parent may be awarded supervised visits only, or the
judge may decide that it is not in the children’s best interests
to see the abusive parent for the time being.
We hope the above information clears up a few things for you. If you are
headed for divorce, we encourage you to
schedule a free case evaluation with an experienced member of our legal team.