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Uncontested Divorces in California

Uncontested divorces in California are the topic of this blog post.  While the technical legal term for a divorce is dissolution most people refer to it as a divorce.

This blog post gives an overview of the uncontested California divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is brief due to the fact that many cases are unique and there are other methods  of obtaining an uncontested divorce in California.

In California the term “irreconcilable differences” describes No-Fault divorce.  It means that “irreconcilable differences have caused an irremediable breakdown of the marriage.”

In California, as in other states, divorces may be either contested or uncontested, but uncontested, No-Fault divorces move through the courts more quickly and less expensively.

California is a community property state. This means that assets and liabilities are either community property (half is one spouse’s, half the other’s, such as the marital home acquired during the marriage), or separate property (one spouse’s alone, such as gifts and inheritances).

In California, the party who files is called the Petitioner; the party who answers is called the Respondent. The divorce is filed in the Superior Court, normally the county of residence of the couple. One spouse or the other must have lived in California for at least six months and in the county where the divorce is being filed for at least three months. Moreover, there is a six-month waiting period after the service of process or an Answer by the Respondent before the divorce becomes final.

Most of the forms used in divorce in California are those adopted by the California Judicial Council, and their use is mandatory. County courts also have forms that may be used in compliance with local rules governing divorce.

California permits what is called a Summary Dissolution of Marriage. A summary dissolution is an inexpensive and easy way to divorce for those couples who qualify, but both the husband and wife must be certain they want to go this route because either can change his or her mind during the six-month waiting period between the filing and the finalization of the action. To qualify for this divorce routine, a couple must meet certain requirements.

The procedural requirements for an uncontested divorce come from California statutes, the California rules of Court, and the local rules of court. Depending on the situation, the couple will file a variety of court papers. These include a property settlement agreement dividing community property (the martial estate) and establishing the terms and conditions of child care and spousal support.

However, the basic steps for an uncontested divorce are as follows:

1.  File a petition asking the court to grant a divorce.

2.  Notification of the other spouse that a divorce has been filed. This entails serving the other spouse with a copy of the Summons- Family Law,  Petition, a blank Response form, and may include other forms especially if there are minor children involved.

3.  Exchange Preliminary Declarations of Disclosure, or if the other spouse does not cooperate the Petition needs to serve a Preliminary Declaration of Disclosure including a Schedule of Assets and Debts and an Income and Expense Declaration. The Final Declaration of Disclosure can be waived by both parties, however the Preliminary cannot be waived.

4.  If both parties agree a Marital Settlement Agreement is then prepared which outlines the agreement of the parties regarding child custody/visitation/support if applicable, spousal support if applicable, and division of property and debts. If the other spouse does not cooperate and does not respond to the Petition, then a Request to Enter Default must be filed along with a Request for a Default Hearing.

5.  Submit the Marital Settlement Agreement and other final paperwork to the Court for processing. If both parties agree then no Court appearance will be required. If a default hearing is involved then a Property Declaration and an Income and Expense Declaration must be submitted to the Court before the Default Hearing. At the hearing a proposed Judgment must be submitted to the Clerk before the Judge hears the case. If the Judge agrees with the proposed Judgment they will sign it which will finalize the divorce.

The Petition, which must be completed in all cases, identifies the Petitioner and Respondent, the date of the marriage, the date of separation, the minor children (if any), makes a declaration of the community and quasi-community assets and debts and states the relief sought. Depending on the situation — that is, whether or not the couple are in agreement — other forms (see below) may be accompanied with the Petition. For example, if there are minor children of the marriage, the petitioner must file additional forms.

The Summons is the Notice to the Respondent that a divorce has been filed by the Petitioner.  It gives him or her 30 days to respond and carries with it a warning that failure to respond may result in a default judgment against him or her.  The Summons also restrains both parties from removing minor children from the state and dissipating marital assets without the written consent of the other party, or a Court order.

After one spouse files, uncontested divorces evolve in one of two ways.

The first is when the spouses agree on every issue: asset and liability division, the terms and conditions of child custody, support and visitation, alimony. A divorce can be said to be uncontested when the spouses do the fighting before going to court, come to an agreement, and the judge then approves it if it is fair and reasonable.

The second way happens when the Respondent does not respond to the petition for divorce. In addition, sometimes the responding spouse cannot be located. Sometimes divorcing spouses agree that the responding spouse will default. This is not collusion, and divorce proceeds through the court with his or her agreement.

When a couple agree on all issues, or when either defaults, the court may issue Judgment either by Declaration without an appearance in Court, or a Default Judgment after a Court hearing.  As stated previously, if both parties agree then a Court appearance will not be required. After a summary action, an uncontested action coursing along this default route is probably the easiest route to a divorce.

Clearly if both parties can agree on all, or most of the issues, they can save a lot of time and money by proceeding with an Uncontested Divorce in California.

Attorneys or parties in California that would like more information on a California divorce litigation document package containing over 45 sample documents including a sample marital settlement agreement can use the link shown below.

California divorce litigation document package

The author of this article, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.

Subscribe to my weekly newsletter with legal tips and tricks for California. http://www.legaldocspro.net/newsletter.htm

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3 Responses

  1. Premium post, good looking weblog, added it to my favorites.

    Like

  2. Thanks for your comments. Check back regularly as I will be posting more articles soon.

    Like

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