HOW DO I START A DIVORCE IN CALIFORNIA?
Even if you intend to hire a family law attorney, you should still be familiar with the requirements to file for divorce in California, and you should take the time to review the forms that need to be filed with the Court to initiate the proceedings, especially since you will be signing most of the forms under penalty of perjury.
First, in order to file for a divorce in California, you or your spouse must have lived in the State of California for a minimum of six (6) months immediately preceding the filing for divorce, and you or your spouse must have lived in the county where you intend to file for divorce for at least three (3) months. If you do not meet these requirements, you can file for legal separation first, then file an amended petition once you meet the residency requirements (we cover the issue of legal separation in a separate article). Additionally, for same-sex couples who where married in California but live outside of California in a state that does not recognize same-sex marriage and/or will not dissolve the marriage, you can file for divorce in California so long as you file in the county in which you were married.
Second, contrary to what many people think, California is a no-fault divorce state, meaning that the Court does not care what the reason is for the divorce. A person simply has to state that there are “Irreconcilable Differences” in order to have their divorce granted. Because it is a no-fault state, California does not use the terms Plaintiff and Defendant. Instead, more neutral terms are used. Specifically, the person who initially files for divorce is called the Petitioner, and the party that responds is called the Respondent. It makes no difference from a legal standpoint (i.e., with respect to custody, property division, or support), who the Petitioner and who the Respondent is.
Additionally, California is unique from other states in that it has a “cooling off period,” meaning that the earliest your divorce can be legally be granted is six-months and one day after the Respondent is properly served with the initial pleadings. However, depending on how complex your case is, or how difficult your ex-spouse will be, your divorce could (and most likely will) take much longer than six months to be finalized.
Assuming you meet the residency requirements to file for divorce, you will then need to fill-out and file certain forms with the Court in order to initiate your case. These forms are as follows:
- Summons (FL-110): The Summons lets the other person (the Respondent) know that they are being sued, informs them that they have 30 days to file a response, and provides other important information such as the name and address of the Court in which the papers were filed, as well as the name, address, and telephone number of the Petitioner’s Family Law Attorney if he or she has one. The Summons also advises the Respondent of the Standard Family Law Retraining Orders that are automatically in place once the Respondent is properly served. Briefly, the Standard Family Law Restraining Orders state that neither party, during the pendency of the dissolution action, can: (1) remove minor children of the parties from the state of California (or apply for a new or replacement passport) without the written consent of the other party; (2) Cash out, dispose of, hide, borrow against, or change the beneficiaries of any insurance policy currently in effect at the time of filing for divorce; (3) transfer, hide, borrow-against, or dispose of any property, real or personal, regardless of the characterization of the property (i.e., community or separate property) without the written consent of the other party (except for the necessaries of life and/or to pay for your Family Law Attorney); and (4) create or modify any non-probate transfers that affects the disposition of the property at death (you can revoke a right of survivorship so long as notice is served on the other party and filed with the Court). The restraining orders apply to the Petitioner once the Petition is filed, and apply to the Respondent once he or she is served.
- Petition (FL 100): The Petition contains more detailed information about your particular case. For example, the Petition asks for your date of marriage, your date of separation, and the names and ages of any minor children of the parties. The petition also requires you to identify any separate or community property assets or debts that you are aware of a the time of filing for divorce (although you may amend the Petition in the future, you should always be as complete as possible with respect to the nature and characterization of any property that you are asking the Court to divide). You can use attachments if there is not enough room to list your property on the Petition itself. The Petition will also ask you what type of relief you are requesting from the court. For example, you can tell the Court what you believe the custody arrangement of the minor children should be, whether or not you are requesting spousal support, or if you are asking for an Order requiring the Respondent to pay for your (or a portion of your) attorneys fees.
- Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA / FL 105 / GC 120): If there are minor children involved (generally speaking, minor children are defined as children under the age of 18, or under the age of 19 if they are a full-time high school student and reside with either parent), then the parties must fill out the UCCJEA form, which lists all minor children of the parties, states their addresses for the past five (5) years and with whom they have resided, and asks if there are any other court actions involving the minor children and/or if there is any information about any other person(s) who may have a claim to custody of the minor children.
- Local Forms: Certain counties have their own local forms. For example, if you file for divorce in Los Angeles County, you will have to fill out a form called a Family Law Case Cover Sheet (FAM 020). If you are filing for divorce in Orange County, you will have to Form L-1120, Family Law Notice re Related Cases.
After you have identified the required forms and have properly filled them out, you will then have to file the paperwork in the proper courthouse. If you are filing in Los Angeles County, you can check which the court’s website at www.lacourt.org to see what district you must file. If you are filing in Orange County, all family forms are filed in the Clerk’s office at the Lamoreaux Justice Center, located at 341 The City Drive, Orange, California, 92868. Unless you qualify for a fee waiver, there is a $435.00 filing fee made payable to the Clerk of the Court at the time of filing.
Once you have filed the forms, you will need to have the Respondent personally served with the documents you filed (along with blank responsive forms) by someone who is 18 years of age of older, and not a party to the action. Once the Respondent is personally served, he or she has 30 days to file their response.
Now this is just the beginning, and as you will find out, there are many more forms to fill out and procedures to follow during the duration of your divorce case. As it is very important to fill these forms out properly, and to follow the proper procedures, you should seek the advice of an experienced Family Law Attorney, like the attorneys at Razai & Nefulda to assist you with your case. Call us today at 310-858-8181.