Divorce 101: Divorce Process Overview – Part One

Divorce Process OverviewDivorce process overview part one. Divorce is never easy. If anyone ever tells you something different, run in the opposite direction. Aside from the myriad of types of divorce, the complexity and volume forms, filings, fees and deadlines, it is emotionally difficult in one way or another.

Divorce Process Overview

 In California it is fairly easy to get married. You don’t have to be a resident of California and there is no blood test. Under California Family Code Sections 300 – 310, along with meeting the legal formalities such as obtaining a marriage license, solemnization of the marriage by ceremony and registering the marriage license with the state within 10 days of the ceremony, both parties must be at least 18 years old with no prior subsisting marriage, capable of consent and no prohibited blood relationships.

 California views marriage as if it were a contract. Most people understand it is easier to enter into a contract than to get out of one, and California holds this premise true for those who want a divorce. The message here? If you want out, be prepared to jump through some hoops and wait.

 The process begins when one spouse files the Summons and Petition. Unless you can qualify for a fee waiver, it will cost $435.00 to file these documents with the court. Once filed, the spouse must serve these documents on the other and file proof of the service.

 Once the Summons and Petition are filed and served, three things happen. First, the spouse served with the Summons and Petition then has 30 days to file a Response. Filing the Response costs that spouse $435.00 without a fee waiver and it must be served on the Petitioning spouse with filing of proof of service. In some cases, a spouse may not file a Response, but to remain a party in the case with certain rights, a filed and served Response is required.

 Second, the clock on a six-month waiting period begins. In California, the parties are required to wait a period of six months before a divorce judgment can be entered. Call it a “cooling off period” as some spouses may reconcile or just understand there is no “quickie” divorce in this state. Remember, the state sees this as breaking a contract and makes it harder to do so than to marry.

 The third thing that happens upon filing the Summons and Petition is that Standard Family Law Restraining Orders go into effect. These restraining orders are contained in the Summons on the second page. Often these are understandably overlooked during the emotional process of being served a Summons. Starting immediately, these very important orders restrain the parties from:

  1. removing the minor children of the parties from the state or applying for a new or replacement passport for those minor children without the prior written consent of the other party or an order of the court;
  2. cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage, including life, health, automobile, and disability, held for the benefit of the parties and their minor children;
  3. transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal
  4. creating a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the disposition of property subject to the transfer, without the written consent of the other party or an order of the court.

The idea here is the State wants to protect the current marital community estate keeping it intact for a period of time. The point is to allow the parties to either come to an agreement on their own as to how things are divided or to allow the court to do so.

In our next blog, “Divorce 101: Divorce Process Overview Part Two”, we discuss how the parties determine the assets and debts of the community and two paths for dividing the estate.