• DISSOLUTION, LEGAL SEPARATION AND NULLITY FAQS •
Click on any of the Frequently Asked Questions listed below for a link to the answer.
• DISSOLUTION, LEGAL SEPARATION AND NULLITY ANSWERS •
1. What is a dissolution of marriage? In California a divorce is also known as a "dissolution," and like a divorce, a dissolution ends your marriage. California is known as a "no-fault" state, which means that it does not matter who is at fault. You can get a divorce by stating that you and your spouse have "irreconcilable differences," and in some limited cases, you can cite "incurable insanity"as a reason for the divorce. (Click to return to Question #1.)
2. How long do I have to live in California to obtain a dissolution of marriage? To get a divorce in California, you or your spouse must have lived in California for the last 6 months AND for 3 months in the county where you're going to file for your divorce. (Click to return to Question #2.)
4. Do I qualify for a Summary Dissolution? There are certain conditions that must all be met before a marriage may be dissolved by the summary dissolution procedure. Among those conditions, you must meet the same residency requirements as a dissolution, you and your spouse must have been married for less than 5 years, have no children and have very little assets and debts. You cannot receive spousal support through a summary dissolution. (Click to return to Question #4.)
5. What is Legal Separation? A proceeding for legal separation is similar to a proceeding for a dissolution of marriage. However, a legal separation is different from a dissolution in that it does not end your marriage and therefore, you and your spouse may NOT remarry after getting a legal separation.
Legal separation can be based on the same grounds as those for dissolution of marriage, however, the residency requirements are not the same as those for a dissolution. With a legal separation, you may amend the party's petition or responsive pleading upon complying with the residence requirements to request that a judgment dissolving the marriage be entered. (Click to return to Question #5.)
6. What is a judgement of nullity? A judgment of nullity is what was formerly called an "annulment." The effect of a judgment of nullity of marriage is to restore the parties to the status of unmarried persons. In order for a marriage to adjudged a nullity certain conditions MUST exist at the time of the marriage. (Click to return to Question #6.)
7. Can a couple become legally married by living together as man and wife ("common law marriage")? California does not recognize common law marriages. However, if a determination is made that a marriage is void or voidable and the court finds that either or both parties believed in good faith that the marriage was valid, the court must declare the believing party or parties to have the status of a putative spouse. (Click to return to Question #7.)
8. What steps are involved in obtaining a divorce? You must meet the residency requirements for a dissolution before you may file your Petition and Summons with the superior court clerk. These documents must be filed in the county where you or your spouse live. Copies of the Petition and Summons, along with a blank Response form, must be served on your spouse by someone other than yourself who is over age 18. Your spouse then has 30 days in which to file the Response. If your spouse does not file a Response within 30 days, you may request a default and proceed to a default hearing to obtain a judgment.
If your spouse responds within the 30 days, you and your spouse must then engage in disclosures (or "discovery"). During this process you and your spouse must prepare disclosure declarations regarding your income and expenses, and the community and separate property assets and debts. You may have to exchange preliminary and final disclosures with your spouse.
After disclosure has been exchanged, the parties may attempt to reach a settlement. This can be facilitated by the parties' lawyers or a neutral third party, such as a mediator. If the parties are able to reach an agreement, this agreement is submitted to the court for approval. If the agreement is approved, the Judge will issue a divorce decree memorializing the agreed terms. If the Judge does not approve the agreement, or if the parties are unable to reach such an agreement, the parties must proceed to trial.
At trial, the parties, usually through their attorneys, present evidence and arguments for both sides. Once each side has had an opportunity to present their case, the judge decides the issues and grants the divorce. Either or both parties can appeal this decision to a higher court.
NOTE: You must be aware, no dissolution is ever the same and your case may not follow exactly the steps outlined here. As such, it is important to have competent representation to help you navigate through what often is a complicated legal maze. (Click to return to Question #8.)
9. What forms do I need to file a divorce? There are two forms (three forms if you have minor children) that you must fill out and file to start your case. The forms you must use are:
a. Summons.
b. Petition-Marriage, or Petition-Domestic Partnership.
c. Declaration Under Uniform Child Custody Jurisdiction (attach this form to the Petition only if you have minor children.) (Click to return to Question #9.)
10. Is there an advantage for me to be the first to the court house to file a Petition for dissolution? Couples involved in dissolutions often think that some advantage exists in being the first to the courthouse to file the Petition. It is not a race to the courthouse. There is no legal significance to being the Petitioner or the Respondent. (Click to return to Question #10.)
11. How long does it take to obtain an order for final dissolution? California's Family Code provides that a judgment for dissolution of marriage is not final until six months have passed from the date of service of a copy of summons and petition, or from the date of appearance of the respondent, whichever occurs first. However, the court may extend this six-month period if good cause is shown to do so.
NOTE: Your divorce does not automatically become final after six months. You must file certain documents with the court to request your divorce Judgment. (Click to return to Question #11.)
12. Can I obtain temporary orders? You or your spouse may seek temporary orders on child custody, visitation and support, spousal support, attorney fees or restraining order disputes by requesting a hearing. This hearing typically is called an "Order to Show Cause hearing." (Click to return to Question #12.)
13. Can I obtain a divorce without a lawyer? Yes, it is possible to obtain a divorce by representing yourself. When you represent yourself you are known as "in pro per." Many individuals are able to successfully handle their divorce on their own, and this may be a good option if you have very little property and no children. As a pro per you still must comply with all legal requirements and must take care to assure your court filings are in the correct format. Any mistake with either can be costly and time consuming to remedy. If you proceed with trial, you will need to present evidence and arguments in favor of your case. If your spouse has representation, you may not be able to adequately protect your interests on your own. (Click to return to Question #13.)
14. At what point during the process can a spouse remarry? You or your spouse cannot legally remarry until you obtain a judgment even if the six months have passed. If you want to remarry or have some other reason for wanting to be single at the end of six months, a judge can dissolve your marriage even though some property or other issues are not yet settled. (Click to return to Question #14.)
15. Can I change my name during the divorce? Upon a party's request in a dissolution or nullity of marriage proceeding, the court must restore the party's birth name or former name, regardless whether the request was included in the petition. (Click to return to Question #15.)
16. Can a parent change a minor child's last name without the other parent's permission? You can petition to change a minor's child last name without the other parent's permission. The judge will review your request and then make a decision whether to grant the name change based on the child's best interests. (Click to return to Question #16.)
17. I am covered under my spouse's health insurance. What happens if I am separated or divorced? Until judgment has been entered on all remaining issues and has become final, a party must maintain all existing health and medical insurance coverage for the other party and any minor children as named dependents, so long as the party is eligible to do so. (Click to return to Question #17.)
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