In order to end a marriage the court follows a very specific process which results in what the law terms a “Dissolution of Marriage.”   This process is more commonly known as a “Divorce.”  In 1969, the California Family Law Act was signed into law by then Governor Ronald Regan, which removed the requirement that a husband or a wife had to prove the other spouse was at “fault” in a marital breakdown in order to end a marriage.    The goal was clearly to make the process less adversarial and more amicable. The result was that the status of being married was "dissolved".  California became the first “No Fault” state in the country. (New York was the 50th and last state which passed No Fault in June of 2010.)


The process starts with either the husband or the wife filing a Petition that requests the court to end the marriage.  The spouse filing the Petition is then called the “Petitioner” any time the case is referred to.

There are specific rules governed by both the Code of Civil Procedure and the Family Code requiring that one must be a resident of the State of California for not less then six (6) months and a resident of the County where the action is filed for a minimum of three (3) months prior to the filing of the Petition. For example, if you have lived in San Juan Capistrano or Coto De Caza for the last six months, the proper court in which to file your Petition would be the Orange County Superior Court.  A filing fee is paid to the Court (which may be waived for financial hardship with a Judge’s approval.)

Service:  

Once the Petition is filed, the other party must be personally handed a copy of the Petition.  This is usually done by a “process server.”  When the copy of the Petition, along with a Summons and other required documents are handed to the other spouse, it is called being "served with process."  The spouse receiving the service is then referred to as the “Respondent.” 

The Process - Response

Once served, (handed a copy of the Petition), he or she has only thirty (30) days to file their formal Response in court or face losing the opportunity to be heard by the court.  (The court charges a fee for filing a response.)  By not responding within the thirty day limit that spouse may find that a Default and a Judgment has been entered against them.  If you have been handed "divorce papers," it is most important to protect your rights and seek the advice of a Family Law Attorney without delay.

The Process - What the Court Has Control Over

Once a person files his or her petition, the court has the final say over all aspects of the marriage including,

• Children:
  
  • Who the children will live with and how much contact the other parent will have;
  • Whether the children will live with the mother or father and the amount of time and influence the other parent will have with the children;
  • The amount of money one parent shall pay to the other for the support of the children including health care and child care expenses;
• Spousal Support. The amount of money one spouse will have to pay to the other and for how long will one be required to pay support;
• Property.The division of the marital estate. This includes all the assets the parties have acquired an interest in during the marriage, including real estate, whether it be located in Ladera Ranch or Laguna Beach, family owned businesses, retirement and pension plans as well as vehicles, furnishings and furniture and any debts the parties have incurred.
• Marital Status. When the parties actually become "unmarried".
• Legal Expense. How much of the cost of the process each side will pay.

The Process - Planning and good advice is important

If your marital relationship is breaking down, meet with a lawyer.   The breakdown and termination of a marriage contains not only a great amount of emotional pain and stress, but it has legal ramifications that are complex, especially when there are children, support issues and issues of property.  Divorce also has important tax consequences.   You will need sound professional advice to help you with the task that faces you.

The Process - Judgment - Uncontested

If the parties can cooperate and reach agreement on all issues the court can grant a Judgment of Dissolution without contest.   The parties’ agreements are reduced to what is called a Marital Settlement Agreement by their attorneys.  The written document sets forth the terms of the parties’ parenting agreement, including custody, visitation or support of their children as well as how property and debts are to be divided.  The agreement reached will become the terms of the Judgment of Dissolution.  

The Process - Judgment - Contested

If the parties cannot reach agreement, they may have to visit the court several times and present their respective positions to a judge in what is called a “hearing.”  Those  hearings are generally for temporary orders concerning the custody, visitation or support of their children or who will remain in the family residence during the pendency of the divorce process.     Following the procedural rules, each side will make every effort to discover all the facts favorable to support its position.  Eventually the supporting facts will be presented to the court at a final appearance, or a “trial” for the Judge to make the final decision on all unresolved issues.   If you are served with legal papers, or given notice of a hearing, DO NOT WAIT, get legal advice immediately.

When the Judgment of Dissolution becomes Final:

Marital Status: A Judgment becomes “Final” six (6) months plus one day after the date of service of the Petition.  Even if a Judge grants a divorce, the parties may not get married again until the judgment is final. 

Finality of Decisions:  Once the six (6) months have passed and judgment has been entered in the court’s records the agreements that were reached and the decisions made regarding tangible property, real estate, retirement accounts and most other issues  generally cannot be changed.

The Process - Modifying the Judgment

Modifications and Reservation of Jurisdiction: Issues concerning children are always subject to  review if circumstances change and are in the best interest of the child or children.  In addition, the court may reserve its power and authority to make decisions at a later time. 

Alternatives to Divorce

Possible alternatives to dissolution include Legal Separation, or Annulment,. Each has a specific purpose and legal outcome.  In order to make decisions regarding divorce, Legal Separation, or Annulment, you must be well informed and have competent professional advise.

The foregoing information is offered to help inform you, however it is not intended as a substitute for professional legal help. See Disclaimer. Only a licensed lawyer can provide such help. Contact us online or call 949-855-0600 to set an appointment.