A: California was the first state to implement the "no-fault divorce" concept. In California, a dissolution of marriage can be granted if the court finds there to be "Irreconcilable differences" that have cause an irrevocable breakdown of the marriage. I f effect, this means that if a married person wishes to terminate the marriage, he/she can do so, even if the other spouse disagrees.

Q: Because California is a so-called "no-fault" divorce state, does misconduct by either spouse ever come into play in the final judgment of the court?

A: Perhaps, in some circumstances; for example, under California law, when making a custody determination, the court must consider whether there is evidence of domestic violence. Also, a determination of whether one party will be awarded spousal support may hinge on the issue of a domestic violence conviction. California law also provides that in making a property award, the court may consider misappropriation of an asset by one party to the detriment of the other.

Q: What are the requirements for filing a petition for dissolution of marriage in California?

A: At least one of the parties must have lived in California for at least 6 months and in the county in which the action is filed for at least 3 months, in order to file a petition for dissolution of marriage.

Q: Are there any residency requirements in order to obtain a dissolution of marriage?

A: In order to qualify for a dissolution of marriage, one of the spouses has to have been a resident of the state for a continuous six months and of the county for a continuous three months prior to the filing of the Petition (Family Law).

There is no residency requirement for a legal separation.

Q: After the dissolution case is filed, how long does it take to get the marital status terminated?

A: Once the Respondent is served with the Summons and Petition, the marital status cannot be terminated until six months have passed since the service was effected.

Q: What is the procedure for getting a dissolution of marriage?

A: A typical dissolution of marriage requires the following steps:

1. The Petition (Family Law) is filed and personally served on the Respondent.
2. The Respondent then has thirty days to file a Response (Family Law).
3. One of the parties to the dissolution will usually request temporary court orders by filing for an Order to Show Cause hearing. At this hearing, the judge will make temporary child custody, support and restraining orders.
4. The parties then engage in discovery, which is the process by which parties to the dissolution exchange information and documents that are relevant to the case. One of the required aspects of discovery is the preparation of the Preliminary Declaration of Disclosure. This is a court form in which each party lists the community and separate property. As part of this disclosure, the parties are also required to exchange current income and expense declarations. Other forms of discovery are interrogatories s (written questions) and depositions (oral examination under penalty of perjury).
5. After the discovery is completed the parties and their attorneys (if they are represented) will discuss settlement of the case. If the case is resolved by agreement, one of the attorneys will prepare a Marital Settlement Agreement, which will contain all of the terms of the agreement. This is a contract that is signed by the spouses and their attorneys.
6. If the parties are not able to agree on all of the issues in the case, a trial will take place.
7. After the parties sign the Marital Settlement Agreement or after the trial has concluded, one of the attorneys will prepare a Judgment of Dissolution of Marriage. This is the document that contains all of the court's orders. The judgment is filed and the court mails a Notice of Entry of Judgment to each attorney

Yet, even after the dissolution is final, either of the parties can go back to court to modify certain terms if there has been a "change of circumstances." For example, if appropriate, there can be a change of child custody and visitation, child support, and even issues such as spousal support, as long as there was no prior agreement that such spousal support terms were nonmodifiable

Q: Must a parent obtain sole custody in order to be awarded child support?

A: No. A parent may share both legal and physical custody with the other parent, and, depending upon financial circumstances, may still receive child support based on state guidelines.

Q: May the provisions in a final dissolution be subsequently changed?

A: Provisions cannot be changed unless the separation agreement so states, one of the parties commits fraud, or a modification is necessary to correct mistakes in drafting. However, a provision in the law permits modification of spousal support or child support based upon a change in circumstances.

Q: California is a community property state; what does that mean?

A: In a community property state, property is classified as either community property or separate property. Community property, but not separate property, will be divided equally in a dissolution of marriage. Community property generally includes income or assets acquired during the course of the marriage, while the parties are living together. Separate property generally includes property owned by a spouse prior to marriage and any gifted or inherited property received during the marriage which was treated as separate property.

Q: What is the difference between spousal support and alimony?

A: Generally, there is no difference. Spousal support is the term that California law uses to refer to what is called "alimony" or "maintenance" in other states.

Q: What does it mean to have a "pro se divorce"?

A: "Pro Se" is a Latin phrase meaning "for oneself." In California, it is not mandatory that you hire an attorney; you may represent yourself in dissolution of marriage cases. However, you may be putting yourself at a serious disadvantage. Most divorces are not straightforward unless there are no marital assets, children, or other joint issues. Given the complexity of the issues, it may be beneficial to employ the services of a professional who is knowledgeable in the law and experienced in the field.

Q: What is a "summary dissolution?"

A: In California, marriage may be dissolved by a summary dissolution procedure if all factors on a list of several factors are met. These factors include:

• Either one or both of the parties meets the residency requirements;
• Both parties agree that irreconcilable differences have caused the irremediable breakdown of the marriage, that the marriage should be dissolved, and that they wish the marriage to be dissolved;
• Both parties waive their right to appeal or modify the decree of dissolution;
• Both parties waive any rights to spousal support;
• Both parties have signed an agreement dividing all of the community assets and liabilities;
• The parties have no children between them, and the wife is not currently pregnant;
• The parties were married less than five years prior to the date the petition is filed;
• Neither party has any interest in real property;
• The parties have not incurred large amounts of debt during the marriage (this amount fluctuates with the cost of living, and other factors);
• The parties' community property assets are less than the statutory amount (this amount fluctuates with the cost of living, and other factors);
• The parties waive any rights to spousal support.

Back to the Top