The Steps of the Divorce Process
Getting married seems easy compared to the difficulty of getting a divorce. But a divorce proceeding is designed to accomplish a lot of different things. It must settle the parenting arrangement for the couple’s children. It has to divide the couple’s property. It must determine how the parents will financially support the children. And it must determine if either of the spouses will receive alimony.
Courts strive to get these right in view of the impact they have on the family. Unfortunately, this can mean protracted litigation and negotiation to develop the facts and resolve the issues fully.
Here is an overview of the steps of the divorce process in California.
Litigating a Divorce
Only a court can dissolve a marriage in California. But the number of issues that need to be litigated can vary substantially.
For example, you can shorten the litigation in two ways:
Summary Dissolution
Under certain circumstances, you and your spouse can petition for a summary dissolution of your marriage.
Eligibility for a summary dissolution requires:
- At least one spouse lives in California
- Both spouses signed the petition for summary dissolution
- The couple has irreconcilable differences
- The couple has no children and neither spouse is pregnant
- The marriage lasted no longer than five years
- Neither spouse owns real estate
- The couple has no unpaid debts in excess of $4,000 incurred after they were married
- The total fair market value of the community property assets, excluding automobiles, is less than $25,000
- Neither party has separate property (excluding automobiles) greater than $25,000
- The couple agrees on how to divide their property and debts
- Both spouses waive spousal support (also called alimony)
- The couple waives the right to appeal the summary dissolution
All of these conditions must be met for the couple to seek summary dissolution. A petition for summary dissolution automatically becomes a divorce six months after the filing date.
Uncontested Divorce
If a couple does not meet the eligibility requirements for summary dissolution, they can still divorce relatively easily. The couple can resolve all of the divorce issues through a settlement agreement and file the settlement agreement after petitioning for dissolution. California’s courts refer to this as an uncontested divorce.
The court will still review the settlement agreement to determine its validity. But as long as the settlement agreement meets the legal requirements for a binding contract, the court should accept it.
You can file a wholly uncontested divorce in which you and your spouse have already worked out all of the issues. You could also file a partially uncontested divorce in which you resolved some of the issues but require the court to resolve others.
Process for a Contested Divorce
Most people know about contested divorces. In this type of divorce, the parties disagree over the issues involved in the divorce.
As a result, the couple needs the court to determine:
For each issue, the parties will attempt to persuade the judge to decide in their favor. Before they reach that point, the parties must follow a predefined process to provide notice to each other and frame the issues for the court. This process includes the following steps.
Petition for Dissolution
The petition for dissolution formally begins the divorce process. One spouse files the petition with a court where either spouse lives.
The petition includes basic information about the marriage and the spouses. The petition gives a reason for the divorce. In most cases, the petition can cite “irreconcilable differences.”
The petition lists:
- Children and their ages
- Separate property
- Community property
The petition includes the petitioner’s proposal for custody, child support, property division, and alimony.
Requests for Orders
The spouse who files the petition has an advantage. The petitioner gets the first opportunity to file requests for orders.
Orders will govern the couple’s affairs during the divorce and address issues such as:
- Temporary custody
- Temporary child support
- Temporary spousal support
- Permission to remain in the family home
- Restrictions on transferring or selling property
The court will often grant the petitioner’s requests for orders since they were first. Courts generally want to settle the couple’s living arrangements during the divorce. And if the court gets it wrong, it can always modify the orders once the other spouse has a chance to respond to the petitioner’s requests for orders.
Response
The response allows the non-filing spouse to contest the petition and present the other side of the story. The response is due 30 days after the petitioner serves the respondent with the petition for dissolution.
Discovery
During discovery, the parties request information from each other and third parties like employers and financial institutions. The parties might depose each other to ask about interactions with the children, financial transactions, and property. The parties will use this evidence to support their case at trial.
Settlement Negotiation
While the parties prepare for trial, they may discuss settlement. A settlement removes a trial’s uncertainty and allows the parties to find common ground for resolving issues.
California requires mediation for issues of child custody and visitation. This mediation can help the parties to settle those issues.
Trial
Many cases do not reach trial. If your case reaches trial, each party will present evidence to the judge. The judge will decide the remaining issues in the divorce based on the evidence and the applicable law.
Order of Dissolution
The order of dissolution, also called a divorce decree or final order, finalizes the divorce. It contains all of the orders to put the judge’s decisions into effect. For example, the dissolution order will tell you what property belongs to you and how custody and visitation will work. If you settled your case, the order of dissolution will reflect your settlement terms.
Post-Divorce Process
After the judge issues the order of dissolution, you may still need the court’s involvement. As time goes on, you may need the judge to enforce the divorce decree if your spouse fails to make alimony or child support payments. You may also need to modify the divorce decree if you change jobs or want to move your children to a different state.
As these situations arise, you will face a similar process of either agreeing with your ex-spouse to modify the final order or filing a request to have the judge modify the order.