In California, the most common legally given reason for a divorce (dissolution of marriage/termination of domestic partnership) is "irreconcilable differences." It simply means that spouses or domestic partners are not getting along and do not wish to seek reconciliation through therapy or a passage of time. California is a no-fault state; therefore, divorcing spouses or domestic partners do not need to prove infidelity or another form of marital breach. If one spouse or domestic partner wishes to divorce, the other one must either cooperate and respond or do nothing and default. There is no option to object to the dissolution of marriage process. A spouse or domestic partner, who does not wish to divorce cannot do anything to stop the process. If, for example, spouses file for legal separation at first, and then one spouse amends her/his pleadings to a divorce action, the other spouse must comply.
Before you file
Before a divorce/domestic partnership if filed with the court, it is best to take steps to ensure preparedness. The advice of an attorney at an early stage, before filing, can prove vital in the overall strategy of the case. Choosing a court, in which to file the action, can also have major repercussions and should be a carefully balanced decision. Priority of filing (i.e. whether to be a Petitioner or Respondent) may matter at the time of a trial, if the case is tried.
You must also meet residency requirements before an action may be filed. In California, either spouse must have lived in California for at least 6 months immediately before filing and the county where you are planning to file for at least 3 months. If no residency requirements are met, legal separation may still be pursued. Domestic partners, who did not register in California must meet the same residency requirements as married spouses and those that did register in California do not need to meet residency requirements as they already submitted to jurisdiction when entering into the domestic partnership. However, if you are same-sex married couple and registered domestic partners, you must meet both residency requirements.
6-Month Waiting Period
Once the case is filed with the court, California law imposes a 6-month waiting period before the court may grant the divorce or termination of domestic partnership. It is a mandatory period, during which the law contemplates giving spouses/domestic partners an opportunity to reconcile. Divorces/terminations of domestic partnerships usually take a lot longer than 6 month but in no event can spouses/domestic partners end their relationship sooner than 6 months. That time can be used for the required disclosures (Preliminary Declarations of Disclosure) and working out a settlement. Spouses/domestic partners can submit a fully stipulated judgment together with other required documents at the time of filing of their initial petition but the court does not have discretion to enter the judgment until the 6-month period ends.
In cases where spouses/domestic partners have been married/in domestic partnership for 5 years or less, have not much debt and not many assets, and no children, they can seek a divorce/termination of domestic partnership through a process called "summary dissolution."
To qualify for a summary dissolution of your marriage you must meet ALL of the following requirements.
You and your spouse/domestic partner:
- must have been married or in a domestic partnership for less than 5 years (from the date you got married to the date you separated);
- Have no children together either naturally born or adopted before or during the marriage/domestic partnership (and you are not expecting a new child now);
- Do not own any real estate;
- Do not rent any real estate (except for where you now live, as long as you do not have a 1-year lease or option to buy);
- Do not owe more than $6,000 (except of cars) for debts acquired since the date you got married/entered into domestic partnership (called "community debts");
- Have less than $41,000 (except for cars) worth of property acquired during the marriage/domestic partnership (called "community property");
- Do not have separate property worth more than $41,000;
- Agree that neither spouse/domestic partner will ever get spousal support; AND
- must have signed an agreement that divides your property (including your cars) and debts
If spouses/domestic partners qualify for summary dissolution and complete their paperwork correctly, most couples may divorce without even speaking with a judge. It is always a good idea to discuss ending a marriage with an attorney. You must have a clear understanding of what is considered community property before you make a decision to dissolve the marriage/domestic partnership by way of a summery dissolution.
Family Code section 2103 requires spouses who are divorcing to disclose information about their assets, debts, income and expenses in a preliminary declaration of disclosure. Family Code section 2104 generally requires that the preliminary declaration of disclosure be served within 60 days of filing of the petition. The preliminary declaration of disclosure is mandatory and you may not divorce within it unless necessary motions are filed with the court. Final declaration of disclosure (FC 2105) can be waived by the parties.
Post-Judgment Modifications/Judgment Set-Asides-Custody/child visitation and support issues often require changes after judgments are entered. We prepare numerous modification RFOs, as well as, handle set-asides for fraud or failure to disclose.