Life changes the moment you decide to end your marriage, with many unforeseen problems arising from the divorce process. If leaving your partner has become a necessary evil, then it’s only right that you do it properly. To lighten the emotional and mental burden of your divorce, I’ve created a step-by-step guide on how to file for divorce in California.
Divorce in California Summary
Here is a brief breakdown of everything you need to know to get a divorce in California.
Divorce Petition Requirements
The main requirement to file a divorce in California is that you or your spouse have been a California resident before the petition is filed.
There are two grounds for no-fault divorce in Texas:
Irreconcilable Differences: if the marriage is broken down irretrievably
Permanent Legal Incapacity to Make Decisions: if your spouse has become unable to make independent decisions due to mental incapacity
Process for Uncontested Divorce in California
The first step is to file a Joint Petition at your local courthouse.
Married couples with children (under 18 years old) must also file the Child Declaration Form.
You and your spouse must now submit a settlement agreement to the court clerk stating the terms of the divorce.
After filing, California laws mandate you to wait 6 months before terminating your marriage.
After waiting 6 months, the judge will enter a judgment of summary dissolution of your marriage.
This concludes the marriage process in California.
Process for Contested Divorce in California
If you and your spouse disagree on getting a divorce, you must file a Petition for Dissolution at the local courthouse stating the grounds for divorce.
After filing the petition, notify your spouse of the new development by serving them a copy of the document. You can do this in a few different ways.
The judge invites evidence from both parties detailing their financial standings.
The court considers the petition and arguments from each spouse’s divorce attorney.
If mediation fails, your claims will go to trial. The judge will have the final say on spousal support, property sharing, and child custody.
The judge grants the dissolution order once every legal issue surrounding property sharing, child custody, and spousal support has been solved.
After the dissolution order, there is a six-month waiting period for the marriage to come to an end.
What Are the Requirements for Divorce in California?
The key ingredient for divorce in California is residency. California divorce law requires either of the divorcing couples to be a California resident for at least six months before the petition is filed.
This means one spouse must have lived in California for at least six months before either of you can file for divorce in the state. Additionally, the filing spouse must have lived in the county where the divorce is filed for three months prior to filing the divorce petition.
If neither spouse meets the residency requirement, the law permits you to file for legal separation and amend the petition when either spouse fulfills the requirement. Separation allows you to get time off without having to endure your soon-to-be ex’s presence.
The law allows for the residency requirements to be waived for some same-sex marriages. Same-sex couples may file for marital dissolution in California if they were married in California and the state they currently live in doesn’t recognize same-sex marriages.
Other potential requirements include a written agreement detailing the divorce terms, tax returns, and proof of mental incapacity. These requirements are secondary and vary according to the type of divorce you file.
What Are the Grounds for Divorce in California?
California Family Code provides two grounds for the dissolution of marriage in the state:
- Irreconcilable Differences: You may file for a divorce if your marriage has broken down irretrievably. The law defines irreconcilable differences as grounds substantial enough to dissolve a marriage. This may include domestic violence and adultery. You can also file on this ground if your marriage has lost its spark or you no longer have similar ambitions with your spouse. As a general rule, the court has discretionary power in determining what reasons qualify a marriage as irretrievable.
- Permanent Legal Incapacity to Make Decisions: You may also file for divorce if your spouse has become unable to make independent decisions due to mental incapacity. However, the court will require medical or psychiatric testimony to prove that your spouse is permanently incapable of making independent decisions.
While you may file for dissolution on either of these grounds, there are generally two kinds of marital dissolution proceedings in California. These are summary dissolution of marriage and contested divorce proceedings.
How to File a Divorce Petition in California
The first thing to note when filing for divorce in California is that the court process depends on the type of divorce you need. To make this easier, I’ve divided the steps according to the kind of divorce. Going through a divorce is enough pain, and the last thing you want is bulky paperwork. For this reason, I recommend using an online service for your divorce.
The Uncontested Divorce Process
Step 1: Filing a Joint Petition
If both you and your spouse agree to divorce, the first step is to file a joint petition for dissolution at your local courthouse. This petition contains the following:
- The grounds for divorce
- The names and address(es) of you and your spouse
- A declaration that all the requirements for an uncontested divorce have been met
You can download the Dissolution of Marriage Petition form online and submit them to the court clerk alongside the filing fee.
Step 2: Filing the Child Declaration Form
The child declaration form is for married couples with children. If you have children under 18, you must fill out this form stating each child’s name, age, and location. You can download the child declaration from the California court’s website. Suppose there are any custody or visitation orders against you or your spouse. In that case, they must be stated in an additional form called the Child Custody and Visitation (Parenting Time) Application Attachment.
Step 3: Marital Settlement Agreement
You and your spouse are required to submit a settlement agreement to the court clerk stating the primary and supplemental terms of the divorce. This document contains property sharing, child custody and support, and visitation details.
If you can’t agree with your spouse on the points of your breakup, California family law recommends seeing a mediator. If mediation fails, you may appoint divorce attorneys to draft a collaborative divorce agreement on behalf of you and your spouse.
Once drafted, this agreement is submitted to the court and becomes the terms of your divorce as long as they comply with the law.
Step 4: The Waiting Period
After filing for divorce, the next thing to do is wait. California divorce laws mandate a waiting period of six months on each case. This enables you and your spouse to reconcile if you can. During the waiting period, the court clerk may contact you to make any necessary corrections to your divorce application.
Step 5: The Divorce Order
This is the final step of your divorce case. After going through your documents, the judge will enter a judgment of summary dissolution of your marriage. However, you can only get the divorce order six months after filing.
A Contested Divorce Process
Step 1: File a Petition for Dissolution
If you and your spouse disagree on getting a divorce, you’ll need to file a petition for dissolution at your local courthouse. This petition states the grounds for divorce and any other claims you want the judge to grant in your favor.
The petition should also include basic information such as when you married your spouse, the number of children you have, your address, and your tax information. You’ll also have to pay a filing fee for dissolution.
Step 2: Serving the Divorce Papers
After filing the petition, notify your spouse of the new development by serving them a copy of the document. You can do this via personal service or through the county sheriff if seeing your spouse could cause problems or if there has been domestic violence.
Your spouse has 30 days to respond to the petition after receiving them. Your spouse may agree to the divorce or file a counterclaim objecting to the dissolution. If your spouse fails to respond, it constitutes acceptance of the claims in your petition.
Step 3: Case Discovery
At this stage, the judge invites evidence from both parties detailing their financial standings. This includes all community and separate property, taxes, and income. You or your spouse may also submit additional forms relating to jointly held assets and other property sharing agreements.
Step 4: The Dissolution Hearing
Once the parties have filed the necessary documents, the court considers the petition and arguments from each spouse’s divorce attorney. If you and your partner have a settlement agreement, the court admits it in its judgment.
If there is no settlement agreement, the court recommends mediation for you to iron out any unresolved legal issue on property division, child custody, alimony, and family support.
If mediation fails, your claims will go to trial, and the judge will have the final say on spousal support, property sharing, and child custody.
Step 5: The Dissolution Order
The judge grants the dissolution order once every legal issue surrounding property sharing, child custody, and spousal support has been solved. These may be done by the parties or through their lawyers. Although final and irrevocable, a dissolution order only comes into effect after the six months waiting period has passed.
NOTE: California divorce law mandates both you and your spouse have access to legal advice and representation in a contested divorce. Where a spouse cannot afford the legal fees, he or she may apply for legal aid or use the attorney listings on the lawyer referral service to connect to an attorney.
If You Need Help with Your Divorce . . .
Several online services assist with the marital dissolution process in California with an assurance that the court will accept your forms. I’ve reviewed and ranked these firms according to their functionality and compliance with divorce laws to help you get this over with quickly.
You can read the results of my research here: 10 Best Online Divorce Services in California.
Frequently Asked Questions
How long does it take to get a divorce in California if both parties agree?
The average timeline for a California divorce is six months. As a general rule, there is a six-month waiting period for each divorce case. The divorce process may take as long as two years, mainly where parties can’t agree on child custody, spousal support, and property division.
Six months is a long time, especially if you can’t wait to say goodbye to your ex-partner. For this reason, most couples file for a legal separation before getting a divorce because it’s much quicker than the divorce process.
What are the different types of divorce in California?
There are two types of divorce in California: summary dissolution and contested divorce.
Uncontested divorces refer to cases where the spouses agree to dissolve the marriage and have drawn up a marital settlement agreement. In a contested divorce, spouses disagree on marital dissolution, the terms of the divorce, or both.
Uncontested divorces are advisable where you and your spouse both want out of the union. In addition to being a resident, you must meet these specific requirements to apply for a summary dissolution of marriage order:
- Irreconcilable differences have caused the irremediable breakdown of the marriage.
- There are no biological or adopted children of the parties’ relationship, and neither party is pregnant to the other spouse’s knowledge. Where there are children, parties must draw up an agreement addressing child custody and support.
- The union is less than five years at the time of filing or separation of the parties.
- Neither party is seeking spousal support.
- There are no unpaid debts above $4,000 incurred by either or both of the parties after the date of their marriage, excluding the amount of any outstanding obligation concerning an automobile.
- The total fair market value of community property assets, excluding all encumbrances and automobiles, including any deferred compensation or retirement plan, is less than $25,000, and neither party has separate property assets, excluding all encumbrances and automobiles, above $25,000.
- The parties have a written agreement on how marital assets should be divided.
- The parties waive their respective rights to appeal and their rights to move for a new trial.
- The parties have read and understood the dissolution brochure.
- The parties agree that the marriage should be dissolved.
NOTE: All of the above requirements must be present for an uncontested divorce petition to succeed.
A contested divorce, on the other hand, occurs where you and your spouse disagree on marital dissolution or the terms governing it. In such cases, the court will have to consider the duration of the marriage, property division, child custody, spousal support, and other issues relevant to the divorce process.
Under California law, parties to the divorce must complete a mediation process to work out the divorce terms. Where this fails, the judge will consider each issue at trial.
Do I need an attorney to get a divorce in California?
While it’s always advisable to get legal advice during a divorce, it is not compulsory to visit a law firm or hire a divorce attorney. Several online divorce services assist in filing divorce papers and completing the process while ensuring your petition complies with the law.
Online divorce services are adaptable to both uncontested and contested divorce cases, helping you avoid the stress of the legal system. You can read my review of California’s top online divorce services here.
Do I have to prove separation to get a divorce In California?
No, you don’t have to prove separation to get a divorce in California. However, separation may be a sign of irreconcilable differences between you and your spouse. The only requirement for a California divorce is residency. Once you or your spouse has lived here for six months or more, you may file for divorce.
Can I get a divorce in California if I was married in another state?
Yes, you can. The California court will grant a divorce once either spouse meets the residency requirement and files the petition in the right county. The proper county to file your divorce papers is one where you or your spouse have lived for at least three months before the divorce.
It’s important to note that California doesn’t recognize common-law marriages. Consequently, you’ll need to have a marriage certificate and meet the residency requirements to obtain a divorce in America’s Golden State.
Is spousal fault necessary for the dissolution of marriage in California?
No, a spousal fault isn’t necessary to get a divorce in California because it is a no-fault divorce state. You can file for divorce on the grounds of non-reconciliation by showing the court that you and your spouse have irreconcilable differences that prevent you from getting along.
While spousal fault is not necessary for marital dissolution, you may also file for divorce on the grounds of the mental incapacity of your spouse.
What factors influence alimony and child support payments?
California family law allows the petitioner (filing spouse) to apply for child and spousal support payments as part of their divorce claim, subject to several factors. For alimony and spousal support, the court considers several factors:
- The age and health status of the spouses
- The employment status, skills, and earning capacity of the spouse requesting support
- Whether there was domestic violence during the marriage
- The financial ability of one spouse to make spousal support payments to the other spouse
- The duration of the marriage and standard of living of the parties
- The contributions of the requesting spouse towards the career and educational advancement of the paying spouse
- The assets of either spouse, including separate property owned by the parties
- Other factors the judge considers fair and equitable
Spousal support is granted to help the requesting spouse achieve self-sufficiency. Consequently, the court may order temporary or rehabilitative support to help the requesting spouse gain the necessary skills or education for self-sustenance. California family law reserves permanent support for long-term marriages and cases where one spouse cannot improve their earning capacity due to old age or illness.
Both spouses are expected to contribute to their kids’ upkeep and support. California divorce law places an equal responsibility on parents to cater to minor kids and children under 18 in high school.
Where the court orders child support payments to one spouse, the determining factors are the benefits and needs of the child. The court considers the factors below when awarding child support payments:
- The health condition and special needs of the child
- The income of the parties
- The age of the child
- Protective orders, custody, and domestic violence during the union
How are marital assets shared?
Marital assets and liabilities are shared equally in California. This is because California is a community property state. California divorce law defines community property as assets acquired by either spouse during the marriage while living in the state. However, this does not include inherited or gifted assets and those treated as separate property by the parties.
The court only divides marital assets where you and your spouse have no property-sharing agreement. The court will abide by the parties’ wishes where an agreement exists. Marital asset divisions also include jointly owed debts and liabilities.
In dividing community property, the court may enforce a claim for damages against an abusive partner or grant certain community estates to one spouse to ensure economic fairness and equal division of property.
Leaving your partner is hard enough, and divorce laws shouldn’t make the process any more complicated. Filing the dissolution paperwork and sitting through court hearings can bring a great deal of mental and emotional stress, so I’ve put together this guide to help you move your life forward as pain-free as possible. I hope it helped and good luck!