1. Is California a no-fault divorce state?
Yes. The Court does not consider fault when granting a divorce or legal separation. However, some types of behavior may still be relevant to your case. For example, domestic violence may affect spousal support.
2. When is the soonest that I can be divorced?
The absolute soonest that you can be divorced is 6 months and 1 day from the date the Summons is served in your matter. If you reach a settlement in your matter before the waiting period has run, your Judgment may be filed, but the earliest date that your marital status will be terminated is still 6 months and 1 day after the service of the Summons.
3. What happens if I do not respond to my spouse’s petition?
If you don’t respond to your spouse’s Petition for Dissolution in California, the case doesn’t go away—it can move forward without you. You have 30 days from the date of service of the Petition to file and serve your Response. If you fail to serve your Response, your default may be taken and a default Judgment may be entered without your participation.
4. Can I ask my spouse to pay my attorney’s fees if I do not have the ability to pay for them myself?
Yes. In California, the Court is tasked with ensuring that each party has access to legal representation. If you cannot afford to hire an attorney or pay your current attorney’s fees, you may file a motion with the Court, asking the Court to award you attorney’s fees and costs.
5. Will I have to go to court to get divorced?
If you reach an agreement on all issues in your matter, you may file an uncontested Judgment and obtain a divorce without having to make a court appearance.
6. How is child custody and visitation determined pursuant to a divorce?
There are two types of custody in California: legal custody and physical custody. Legal custody refers to the decision-making powers regarding the children. Physical custody means where the child lives and which parent is responsible for their care and supervision. California uses the best interest of the child standard in determining custody. Among the factors set forth in Family Code §3011 are: 1) the health, safety, and welfare of the child; 2) a history of abuse by one parent; 3) the nature and amount of contact with both parents; and 4) the habitual or continual use of controlled substances, the history or continual abuse of alcohol, or the habitual and continued abuse of prescribed controlled substances by either parent. Custody cases are very fact specific, and often an expert will be retained to assist the Court by investigating and making recommendations for custody in complex cases.
7. How do I file for spousal support and/or child support?
You would need to check the box requesting that spousal support be awarded to you on your Petition or Response. You would then file a motion requesting spousal support and/or child support, with the proper forms, a declaration describing your financial circumstances, and an Income and Expense Declaration. You will need to include all attachments to the forms that are required by law.
8. How is property divided in a California divorce?
In California, property division pursuant to a divorce follows the community property system. Unless you entered into a Premarital Agreement opting out of part or all of the community property system or you agree otherwise, the community property in your case will be divided on a 50/50 basis. Separate property is not divided. The California Family Code provides the following definitions for community and separate property:
760. Community property: Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.
770. Separate property of married person: Separate property of a married person includes all of the following:
(1) All property owned by the person before marriage.
(2) All property acquired by the person after marriage by gift, bequest, devise, or descent.
(3) The rents, issues, and profits of the property described in this section.
(b) A married person may, without the consent of the person’s spouse, convey the person’s separate property.
9. How can I find out what property my spouse has during our divorce?
At the beginning of your case, both you and your spouse are required to serve Preliminary Declarations of Disclosure, which, among other things, detail every asset, every debt, all income, and an estimate as to your monthly household expenses. At the end of your case, you will be required to do this again pursuant to your Final Declarations of Disclosure, although these may be waived pursuant to an uncontested Judgment for Dissolution.
10. Is mediation a good alternative to court?
Mediation is often an excellent alternative to litigation in a California divorce. It is usually faster and cheaper, and it allows you and your spouse to have control over the outcome. It is often less acrimonious than court proceedings. It is also less stressful and more supportive of the parties’ relationship, including their co-parenting relationship, if they have minor children.