Questions About Divorce and Property Division
1. What is the basic divorce process?
One spouse files a Petition to dissolve the marriage. The Petition, along with an additional paper called a Summons, is served on the other spouse by having the papers handed personally by a professional process server or other adult. A document called a proof of service is then filed with the Court.
The served spouse then has thirty days to file a Response with the Court and serve a copy of it by mail on the Petitioner.
Both the Petition and the Response set out the grounds for the divorce (called a marital dissolution in California) and the general relief sought by each party in the form of support, property division and child custody.
If one of the parties requires an immediate support order, child custody order, or other orders preserving preservation of property or physical safety, a Request for Order is also filed and served.
2. Who can file for a dissolution of marriage in California?
A resident of California for the past six months may file for a divorce in California. To file in a particular county, the person filing must have been a resident in that county for the past three months.
3. What happens after the Petition and Response are served?
The parties then exchange documents called Declarations of Disclosure. These Declarations include complete lists of property owned by each party, both community and separate property, and an accounting of the parties incomes. Income tax returns are also exchanged.
Frequently, additional information is needed after the Declarations of Disclosure are exchanged. This information is requested in a process called Discovery. During Discovery, the parties have the opportunity to request from each other documentation concerning the assets and debts of the parties to determine how the property should be divided in the dissolution. The parties may also obtain more information about income which will assist in determining support. This is particularly true when one spouse runs his or her own business and is not just receiving a simple salary from a third party. Often, property needs to be appraised.
In cases where a business is owned in part or in whole by one spouse, it is frequently necessary to employ an expert either jointly or by each party to determine the value of the business and the income from the business available for support so that accurate support calculations can be made.
4. How long from filing until I will be divorced?
California law provides a minimum of six (6) months from the date of filing until a Judgment of dissolution of marriage can be entered. Most dissolution actions take from one to two years to complete if there are property, support and child custody-related matters involved. If there are no children, minimal property and no support issue raised, it is possible to use a summary procedure, which is designed to be both easy and quick. If there are very complicated financial or custody issues, a final judgment may take longer to enter.
5. Do I have to go to Court?
Some cases require a hearing to determine temporary support and custody orders, but not all. Sometimes temporary orders are negotiated between counsel.
Most cases do not go to trial but sometimes a trial is necessary to finalize a divorce. In that case, often some issues can be settled and only certain issues go to trial. This shortens the trial, makes it easier to prepare for trial, and therefore less expensive for the parties. Settlement of all issues is encouraged by the Family Code and most attorneys will try to settle short of going to Court in the case of a lack of agreement.
6. Can I obtain orders before my divorce is final?
Once a Petition is filed, a party to a dissolution action can file a proceeding called a Request for Order seeking child support, spousal support, child custody, attorneys fees and certain restraining orders to protect assets from being taken or used by one spouse. You can also obtain restraining orders to protect a party or children from physical harm.
For spousal and child support and attorneys fees, it is necessary to disclose financial information for both parties by filing a document called an Income and Expense Declaration. For all temporary issues, the parties submit written documents under penalty of perjury describing the facts in support of their Requests. The Court will make a temporary decision based on these declarations, and testimony of the parties and other witnesses, including children if they=re old enough.
7. How is community property divided?
Community property, consisting of both debts and assets, is divided equally between the parties. Determining what property is community and what property is separate, is sometimes complicated, and often requires the assistance of a forensic accountant, hired either jointly by the parties or separately by each party.
Property is valued on the date of trial, with some exceptions. The most common exception is a business run by just one spouse. In that case, the business may be valued at the date of separation rather than the date of trial.
8. Can I get divorced before the property issues are resolved?
It is possible to bifurcate your dissolution action and enter a Judgment of Dissolution as to marital status before all of the issues in your case are resolved. This permits the parties to remarry before property is divided, support is established or child custody issues are fully resolved.
Bifurcation requires that either the parties agree or the party seeking the bifurcation go to the Court on a Motion seeking the end of the status of marriage. These Motions are usually granted absent extraordinary circumstances but often include temporary conditions to protect the spouse not seeking the bifurcation. For example, an order providing that the spouse be maintained as a death beneficiary of a pension, or providing for continued health insurance coverage.
9. What is community property and how is it different from other property?
Community property is all property which is acquired during marriage by earnings or efforts of either party or as a gift to both parties. Community property includes real property, savings, deferred compensation, intellectual property, and other forms of property. It also includes debt incurred during marriage by either party for any marital purpose.
If a business is started during marriage, the entire business would be considered community property. If a business is started before marriage but grows during marriage, part of it may be community and the amount of the community interest will be determined during the dissolution process.
Property which is not community property is considered separate property. Separate property is all property belonging to just one party either because it was earned before marriage or after separation, gifted to just one party, or inherited by just one party. A premarital agreement may establish that there be no community property, only separate property.
10. Who pays attorneys fees?
California law provides that the payment of attorneys fees is based on relative need and the ability to pay; that is, the party who is more capable of paying should cover some of the fees of the other party. California law is designed to insure that both parties have access to financial resources to resolve their family law dispute.
11. Once a divorce is final, do the terms ever change?
Property division in a judgment of dissolution of marriage is a final decision. But certain aspects of a dissolution judgment remain modifiable: child support and child custody can be modified by the Court, and the party who is seeking to change must show that circumstances have changed justifying the modification. Spousal support may also be modifiable based on a change of circumstances unless a Judgment specifically says it is not.
If a community property asset is omitted from a Judgment it can be divided upon application to the Court.