A divorce (also called a dissolution) can be broken down into several steps. This article is intended to provide basic information and general legal steps and phases your matter will go through along the way. Every situation is unique, so you may want to consult an attorney. This article does not discuss any of the financial or emotional components of getting divorced.
Step 1: The Petition for Dissolution
The party initiating the divorce is referred to as the “Petitioner” (which means the person filing the petition). The Petitioner’s husband or wife is referred to as the “Respondent” (because this person will be filing a Response).
Prepare Court Documents
The first legal step is for the Petitioner is to prepare (or to have someone prepare on his or her behalf) several documents. Some documents are mandatory and some are optional.
Petitioner (or his or her attorney) must prepare a document called a Summons. This document tells the spouse that he or she is suing them for a divorce. The summons provides information on what he or she is required to do to respond. The Summons also provides some Automatic Temporary Restraining Orders. (See below.)
The Petition for Dissolution is required to start the divorce proceedings, so it is also a mandatory form. It requires that the Petitioner provide the court and the other party with some background information about the marital relationship including the date of marriage, the date of separation, and information regarding any minor children.
In California, which is a “no fault” state, there is no need to justify the reason for divorce. There are only two choices for the ground you will select. The first ground, the most common ground, is irreconcilable divorces. Nearly all divorces fall into this category. (Marriages can also end if your spouse has become permanently incapacitated from making legal decisions. A marriage can be nullified on grounds like bigamy and incest, but these situations are rare!)
It is important that Petitioner or Petitioner’s attorney fill out the petition as completely as possible. The Petition can indicate whether or not Petitioner is seeking spousal support, has separate property claims, and, If there are minor children, whether or not Petitioner will be requesting child support, and, orders regarding custody and visitation.
If There Are Minor Child or Children, Prepare the UCCJEA
If there are minor children, Petitioner is also required to prepare a document entitled Uniform Child Custody Jurisdiction and Enforcement Act. The purpose of this document is to make sure that California (and no other state) is making orders regarding the minor children. This document is mandatory if you have a minor child.
Requests for Order
If Petitioner needs orders before the divorce is final (which takes at least six months), Petitioner can file a Request for Order for things like child support, spousal support, or control of property. This is an optional document. A Request for Order can be filed at the same time as the Summons and Petition or at any time during the proceedings.
File the Documents
Once the documents are prepared, Petitioner must file the documents in the court in the county where Petitioner lives and file them. If you have an attorney, your attorney will take care of this step for you. In many counties, this can be done online.
There is a $435 fee for filing for divorce. If you cannot afford the filing fee and meet the income requirements, you can apply for a fee waiver by filing a Request to Waive Court Fees.
The court will assign your matter a case number and will stamp your documents.
Serve the Documents
In order to serve the Summons and Petition (and other documents if applicable) a person other than Petitioner who is over the age of 18, must hand the documents to Petitioner’s spouse. This is called personal service. You cannot do this yourself! If you have an attorney, your attorney will handle this for you.
In addition to the documents Petitioner or Petitioner’s attorney prepared, Petitioner must also serve the other party with a blank Response to Dissolution. If additional orders are being requested, Petitioner must also serve the other party with a blank Response to Request for Order.
ATROS (Automatic Temporary Restraining Orders)
Once the divorce papers have been served, both parties are required to maintain the “status quo.” These orders are set forth in detail in the Summons. For example, this means that neither Petitioner nor Respondent can change your children’s residence to another state without written permissions. This means that neither Petitioner nor Respondent can borrow against real property. This means that neither Petitioner nor Respondent can sell or give away property. The parties can use community funds or quasi community funds to retain an attorney.
File the Proof of Service
Once the Respondent has been served the divorce papers, the person who handed him or her the documents must complete a document called a Proof of Service. This document is filed in court as evidence that Respondent has been notified about the proceedings.
Wait 30 Days or Until the Response is Filed
The Respondent has 30 days to file a Response. While the Respondent has 30 days to file a Response, he or she can file it sooner.