What Should I Know About Divorce And Custody?
- What are grounds for divorce in
California?
- Are there rules that my spouse and I must
follow during the divorce process?
- Do I have any options in how I handle my
divorce?
- Can I get a legal separation or an annulment
instead of a divorce?
- Is there a simplified process for getting a
divorce?
- How do I file for divorce?
- What should I do if my spouse injures me?
- How can I get information from my spouse about
our property and finances?
- How will our property be divided?
- What is spousal support? Is it the same as
alimony?
- What happens to our children when we
separate?
- What happens if we cannot agree on
custody?
- What choices does the judge have in granting
custody or visitation rights?
- Will the judge consider our children´s
wishes?
- Is the dissolution process the same for
registered domestic partners?
- Do I need a lawyer?
- How can I find and hire the right lawyer?
- How can I get a divorce through mediation?
- Can I handle my own divorce without a
lawyer?
© 2000, 2003, 2006 The State Bar of California.
The Executive Committee and Alternative Dispute
Resolution Committee of the State Bar´s Family Law Section both played key roles
in the development and editing of this pamphlet.
1. What are grounds for divorce in California?
In
California, there are two grounds for divorce (also known as dissolution):
- Irreconcilable differences. You simply check this box on the dissolution
petition and the court will grant your divorce.
- Incurable insanity (almost never used). Medical proof that one spouse was
insane when the petition was filed–and remains incurably insane–is required.
In addition, you or your spouse must have lived in California for six months
and in your county for three months before filing a petition to dissolve your
marriage. There is no residency requirement for filing for legal separation
(see #4).
2. Are there rules that my spouse and I must follow during
the divorce process?
Yes. There are temporary restraining orders (rules prohibiting both of you
from doing certain things) that go into effect automatically when the divorce
process begins.
For example, neither of you will be allowed to take your minor children out
of state without the other spouse´s written permission or a court order. Nor
will either of you, in most instances, be allowed to cancel or change the
beneficiaries on your insurance policies.
And you will be required to notify your spouse before any out-of-the-ordinary
spending and be prepared to account for such expenditures to a judge. These
requirements are described on the back of the divorce Summons (see #6).
For copies of a Summons and other divorce papers, visit the California Courts
Web site at www.courtinfo.ca.gov
(go to self–help in the menu).
3. Do I have any options in how I handle my divorce?
Yes. You have several alternatives, including the following:
- Full attorney representation: You can get a divorce by having an attorney
represent you in court. You might qualify for free or low–cost legal assistance
if you have very little income (see #16 and #17).
- Limited attorney representation: You can hire an attorney to assist you in a
limited capacity with certain parts of the process (see #16).
- Mediation: You and your spouse can reach a negotiated resolution with the
assistance of a mediator in a non–adversarial setting and without going to court
(see #18).
- Self–representation (pro per): You can act as your own attorney.
This pamphlet will help provide you with some of the basic information that you
will need to know about the process (see #19).
There can be advantages and disadvantages to each one of these alternatives.
The course of action most appropriate for you will depend on your particular
situation. Factors such as time, cost, the impact on your children, the
communication between you and your spouse, and a desire for control in the
process may influence your decision.
4. Can I get a legal separation or an annulment instead of a
divorce?
Yes. You can get a legal separation or an annulment (also called a nullity)
without having lived in California for six months or your county for three
months before filing.
- Legal separation. You may have religious, insurance, tax or other
reasons for wanting a legal separation instead of a dissolution. If you obtain a
legal separation, you and your spouse will remain married, but the court can
divide your property and issue orders relating to child custody, visitation,
child support and spousal support, and, if necessary, a restraining order.
- Annulment. If you are granted an annulment, it is as though your
marriage never existed. You may be able to get an annulment if you married when
you were a minor without the consent of your parents or guardian, or if certain
types of fraud or deceit were involved. If you want an annulment, however, you
will have to appear in court for a trial.
5. How do I file for dissolution?
To obtain the proper forms, you can purchase a dissolution form packet for a
minimal fee from the clerk of your county´s superior court.
You or your lawyer or mediator must prepare the forms called the Petition and
Summons. You start your action by filing the Petition and Summons with the clerk
of the superior court of the county where you or your spouse lives.
You must pay a fee to file these papers unless you have a very low income and
qualify for a fee waiver.
A copy of the Petition, the Summons, and a blank Response must be served on
your spouse by someone other than yourself who is an adult (over the age of 18).
The Summons is a paper that gives notice to your spouse that you are filing
for a dissolution and that he or she has 30 days in which to file the Response.
The Summons also contains restraining orders that prohibit you and your
spouse from removing your minor children from the state without the other
spouse´s approval, disposing of property without the other spouse´s or court´s
approval, and canceling or changing insurance policies.
In the Response, your spouse indicates what needs to be resolved by the
court. For example, your spouse might object to your request for spousal support
or sole custody of your children.
6. How do I file for divorce?
To obtain the proper forms, purchase a dissolution form packet for a minimal
fee from the clerk of your county´s superior court. Or, go to the California
Courts Web site (www.courtinfo.ca.gov).
You or your lawyer or mediator will have to prepare a Petition and a Summons.
You begin the process by filing your Petition and Summons with the clerk of the
superior court in the county where you or your spouse lives. You will have to
pay a fee to file these papers unless you have a very low income and qualify for
a fee waiver.
Copies of the Petition and Summons, and a blank Response, must be officially
delivered (or, in legal terms, served) to your spouse by someone other than
yourself who is over the age of 18. The Summons is a paper that notifies your
spouse that you are filing for a divorce and that he or she has 30 days in which
to file the Response.
In the Response, your spouse then indicates what needs to be resolved by the
court. For example, he or she might object to your request for spousal support
or sole custody of your children.
There are several steps that may occur after you file.
Not all of these steps will be necessary in every case. For example, you may
simply reach an agreement and get a judgment without the need for temporary
orders of any kind.
7. What should I do if my spouse injures me?
If your spouse injures you or anyone else in your household, call the police
immediately.
The police can, if warranted, contact an on–call judicial officer and issue
an Emergency Protective Order (also called an EPO) on the spot. This would
legally prohibit your spouse from coming within a certain distance of you.
It also may grant you temporary custody of your children and bar your spouse
from the family home. An EPO remains in effect for five court days. To obtain a
longer–term restraining order, you would need to file for a Temporary
Restraining Order (also referred to as a TRO) from your local court.
Most courts have facilitators who can help you fill out the necessary forms.
For more information, request a free copy of the State Bar pamphlet Can the
Law Help Protect Me from Domestic Violence? (See #17 for information on
ordering the bar’s pamphlets.)
8. How can I get information from my spouse about our
property and finances?
There are several legal procedures. For example, you (and your attorney, if
you have one) might take depositions (interview your spouse or other witnesses
in person under oath), send interrogatories (written questions) or submit an
Inspection Demand (a request that your spouse turn over certain important
documents).
To gather information from others (an employer, bank or school, for example),
you might have to subpoena them to appear with the documents in court or at an
attorney’s office.
Or, you may choose to rely on the disclosure declarations (see #6)
that you and your spouse are both required to fill out.
9. How will our property be divided?
California law recognizes that both spouses make valuable contributions to a
marriage. Most property will be labeled either community property or separate
property.
- Community property. All property that you and your spouse acquired
through labor or skill during the marriage is, at least in part, community
property.
You and your spouse may have more community property than you realize.For
example, you may have an interest in pension and profit–sharing benefits, stock
options, other retirement benefits or a business owned by one or both of you.
Each spouse owns half of the community property. This is true even if only
one spouse worked outside of the home during the marriage—and even if the
property is in only one spouse’s name.
With few exceptions, debts incurred
during the marriage are community debts as well.
This includes credit card bills, even if the card is in your name only.
Student loans are an exception and are considered separate property debts.
Community property possessions and debts are divided equally unless you and
your spouse agree to an unequal division—or unless there are more debts than
assets.
Keep in mind that if your spouse agrees to pay a community debt and fails to
do so (or files for bankruptcy and discharges the debt), you may have to pay the
creditor.
Division of possessions and debts can be complicated. You may want to seek
legal advice before entering into any such agreement. And if you have already
signed away your rights to certain property, consult an attorney to find out if
you are bound by the agreement.
Finally, if you and your spouse cannot agree on the division of your debts
and possessions, a judge will make the decision for you. He or she may not split
everything in half; instead, the judge might give each of you items of equal
value.
For example, if your spouse gets the furniture and appliances, you might get
the family car.
- Separate property. Separate property is property acquired before
your marriage, including rents or profits received from these items; property
received after the date of your separation with your separate earnings;
inheritances that were received either before or during the marriage; and gifts
to you alone, not you and your spouse.
Separate property is not divided during dissolution. Problems with
identifying separate property occur when separate property has been mixed with
community property.
However, you may be entitled to receive your separate property back even if
it has been mixed. There are complex tracing requirements where property has
been mixed.
Debts incurred before your marriage or after your separation are considered
your separate property debts as well. You will be required to file proof that
you delivered your spouse a list of all of your community and separate property,
and your income and expenses, which is attached to documents called the
preliminary and final declarations of disclosure (see #6).
Determining the character of property can be complicated and mistakes can be
costly.
You may want a lawyer´s help in making sure that your property is correctly
listed as community or separate.
10. What is spousal support? Is it the same as
alimony?
Spousal support is the term for alimony in California. Spousal support is
money that one spouse pays to help support the other after the filing of a
dissolution.
The spouse receiving such support will pay federal and state income taxes on
it, and the one making such payments will be entitled to a tax deduction.
Consult with a lawyer to make sure the orders are drafted correctly or you may
not be entitled to the deduction.
To determine the amount of spousal support, the judge will consider such
factors as the standard of living during the marriage, the length of the
marriage, and the age, health, earning capacity and job histories of both
individuals.
If the marriage lasted less than 10 years, it is unlikely that a judge will
order spousal support for longer than half the length of the marriage.
Perhaps neither of you need spousal support. Since circumstances can change
(you could become ill, for example, or lose your job), you may ask the judge to
reserve jurisdiction to order spousal support in the future. (The judge will be
more likely to do this if your marriage lasted 10 years or close to it.) This
will leave the door open so you can ask for such support at a later time.
Under certain circumstances, you or your spouse may go back to court and ask
the judge to change the amount of support
The judge also can order a wage assignment directing a spouse´s employer to
pay spousal support.
11. What happens to our children when we separate?
You can determine what happens. The best solution for the children is for the
parents to reach an agreement on who will take care of them.
If you and the other parent agree on a parenting plan, you should attach a
copy of the plan to the dissolution papers. Your parenting plan can become a
court order; in most cases, a judge will approve a custody plan agreed upon by
both parents.
You and the other parent are both responsible for supporting your children if
they are under age 18. And this duty may extend beyond age 18 if certain
conditions are met.
The amount of support to be paid by one parent to the other is based on
established guidelines.
Computer programs are available for helping parents determine who will pay
such support, and how much is to be paid.
Significant factors include each parent’s income and the amount of time each
of you spends caring for the children.
Such support need not be reported as income for federal and state tax
purposes, and the parent paying such support is not entitled to a tax deduction.
If necessary, you may request a wage assignment order. This is an order that
requires a parent’s employer to make child support payments directly to the
parent entitled to receive support.
12. What happens if we cannot agree on custody?
If you and the other parent are unable to agree on custody or visitation, a
judge will make the decision for you.
There are several steps to finalizing a custody plan. However, custody and
visitation can be decided on a temporary basis if there are immediate problems.
For example, a new school year may be approaching and you cannot agree on a
school for your children.
Or, one parent intends to move and wants to take the children along. (Keep in
mind that you may not be able to prevent such a move unless you typically spend
a lot of time with your children.)
Before any hearing or trial involving child custody or visitation, both
parents are required to meet with a trained counselor hired by the court. The
counselor will try to help you agree on a custody and parenting plan.
These sessions are arranged through Conciliation Court or mediation offices,
and are held in private offices located in the courthouse.
In some counties, the assigned mediation court counselor will submit a
recommendation to the judge even if you and your spouse did not reach an
agreement.
In other counties, these sessions are entirely confidential and the counselor
can only report agreements reached by the parents. You should inquire about the
rules in your county.
Depending on the nature of the custody dispute, the judge may order a
psychological evaluation of the family as well, and may appoint an attorney to
represent the children.
If an attorney is appointed for your child, you and the other parent may be
required to bear all or part of the cost.
13. What choices does the judge have in granting custody or
visitation rights?
The judge may give custody to one or both parents, or, in some cases, to
another adult based on the best interests of the child. Considerations include
the child´s health, safety and welfare, as well as any history of abuse by one
parent.
For custody to be awarded to someone other than a parent, however, the judge
would have to believe that giving custody to either parent would be detrimental
or harmful to the children.
- Joint legal custody. The parents share the right and responsibility to make
important decisions about their children’s health, education and welfare. Such
decisions might include, for example, where the children will attend school or
whether they should get braces on their teeth.
- Sole legal custody. One parent has the right to make decisions related to
the health, education and welfare of the children.
- Joint physical custody. The children spend time living with each parent on a
regular basis. This does not mean, however, that the children must spend equal
amounts of time with each parent.
- Sole physical custody. The child lives with one parent and the other parent
has visitation.
Try to keep in mind that the actual time spent with your children is probably
more important than the legal terminology used to describe the arrangement.
Also, the specifics of such custody orders can vary. For example, a judge who
orders joint legal and physical custody may name one parent as the primary
caretaker and one home as the primary residence.
Or, a judge might order sole physical custody to one parent and supervised or
no visitation to the other if it appears that a parent may present a threat to
the child´s welfare or safety.
In addition, stepparents and grandparents may be given visitation in certain
circumstances.
Law enforcement may help you enforce a custody or visitation order, if
necessary. You will need a certified copy of the order.
Or, if you are unable to locate your child, you may seek assistance from your
local district attorney. The person violating the order could possibly, at your
request, be found in contempt of court.
If the other parent won’t obey the order and these suggestions don´t work,
you may want to consult an attorney.
It is important, too, to remember that your custody plan can be changed if it
doesn’t work.
If your circumstances change, you can return to court and request a change in
the parenting plan even if a temporary or permanent order has already been
established. The same procedures discussed in question #12 would apply to such a
request.
Or, if you and the other parent can reach an agreement, you may simply submit
it to the judge and ask for a court order. Judges often approve changes even
without a hearing if you both request them.
14. Will the judge consider our children’s wishes?
It depends. The judge must consider what the child wants if the child is “of
sufficient age and capacity to reason.” The judge is not required, however, to
follow the child’s wishes.
It may be difficult to determine the child’s true wishes if one or both
parents have coached the child.
Most often, children don’t want to hurt either parent. Avoid trying to
persuade your child to choose you over the other parent; this puts a tremendous
emotional strain on the child.
The court mediator or other counselor may meet with the child to help convey
the child’s real desires.
15. Is the dissolution process the same for registered
domestic partners?
Yes, for the most part, as long as your domestic partnership has been
registered with the State of California. Keep in mind, however, that this is a
new area of the law. You may want to seek a family law attorney’s advice before
reaching any agreements.
In addition, you should be aware that federal law does not recognize
registered domestic partnerships, which means that tax laws do not apply to
domestic partners and married couples in the same way. If partner support is an
issue or you own property, you also may want to consult a tax specialist.
16. Do I need a lawyer?
Property settlements and child custody disputes can be very complicated. A
lawyer can tell you how a judge may divide your property and help you put your
property settlement agreement into writing.
A lawyer can help you understand your rights and duties concerning your
children. A lawyer can assist you if an unexpected problem comes up.
And a lawyer can advise you on how much money, if any, you should pay or
receive for spousal or child support.
Lawyers who handle dissolution and custody cases are called family law
attorneys. Some are “certified specialists” in family law.
This means that they have met the State Bar’s standards for certification.
Keep in mind, however, that there are lawyers with experience and expertise in
family law who have not sought such certification.
In addition, there are alternatives to hiring a lawyer who will represent you
throughout all stages of your divorce.
You could, for example, choose limited representation instead—hiring an
attorney who will assist you at particular stages of your divorce.
Whether this would be a good option for you could depend on the complexity of
your case and your financial situation. Generally, limited representation
involves less cost.
While some attorneys will not work solely on portions of a case, others will
agree to act as collaborative attorneys or consulting attorneys (also called
coaches or providers of unbundled legal services).
- Collaborative attorney. The role of a collaborative attorney is to
work with you, your spouse and your spouse’s attorney towards the goal of
reaching a settlement on all issues.
This could involve exchanging necessary information, selecting common experts
and focusing on negotiating family issues in a cooperative, informal manner.
Because collaborative attorneys will not represent you in court regarding any
unresolved issues, you and your spouse must agree initially to retain new
attorneys if you need to go to court to resolve any remaining issues.
- Consulting attorney. The role of the consulting attorney, unlike a
collaborative attorney, is to assist you on a limited basis.
A consulting attorney does not take on full responsibility for overseeing or
handling your case. The limits of the representation are set by agreement. You
should make sure that you understand the extent of the attorney´s services.
Such services might, for example, include helping you to develop a
negotiation strategy, teaching you how to present an argument in court,
accompanying you to mediation or "signing off" on any agreement.
Or you might consider hiring a lawyer who can act as a neutral mediator
between you and your spouse. A lawyer/mediator can provide you with the
necessary legal information, as well as some creative alternatives for handling
your divorce (see #18).
17. How can I find and hire the right lawyer?
To find a lawyer, you could call a State Bar–certified lawyer referral
service in your area. Look in the Yellow Pages of your telephone directory under
“Attorney Referral Service, “ or call your local bar association.
For an online list of certified lawyer referral services, visit the State
Bar’s Web site at
www.calbar.ca.gov.
Or, for a recorded message with the phone numbers of certified services in
your county, call 1–866–44–CA–LAW (442–2529). From out of state, call
415-538-2250 for the same message.
State Bar–certified lawyer referral services, which must meet minimum
standards established by the California Supreme Court, can assist you in finding
the right lawyer for your particular problem. Most of these services offer
half-hour consultations for a modest fee.
Attorneys who are members of certified lawyer referral services must carry
insurance, agree to fee arbitration for fee disputes, meet certain standards of
experience and be State Bar members in good standing.
Lawyer referral service fees do vary. Don’t forget to ask whether there is a
fee for the referral or initial consultation. And if you decide to hire a
lawyer, make sure you understand what you will be paying for, how much it will
cost and when you will be expected to pay your bill.
You may belong to a legal insurance plan that covers the kind of services you
need. Or, if you have very little income, you may qualify for free or low-cost
legal help through volunteer service organizations.
Check the white pages of your telephone directory for a legal services
program located in your county. (California´s statewide legal services Web
site—www.LawHelpCalifornia.org—can
help you locate a local program.)
In addition, the courts in most counties have on-site clinics where you may
be able to obtain forms and guidance on how to proceed. Your local bar
association may have information on what resources are available as well.
For more information on finding an attorney, see the State Bar pamphlet
How Can I Find and Hire the Right Lawyer?
Or, visit the bar’s Web site—www.calbar.ca.gov—where
you’ll find the consumer pamphlets, as well as information on ordering them. The
pamphlets can be ordered in bulk.
18. How can I get a divorce through mediation?
If you choose mediation, you and your spouse will meet with a neutral third
party who will help you resolve your custody, property and support issues.
The goal is to obtain a legally binding, stipulated Judgment of Dissolution.
In addition to dealing with legal and financial issues, an effective mediator is
trained to help you and your spouse:
- Communicate more effectively.
- Explore a wide range of settlement options.
- Reach decisions that will work best for you and your family.
You will make your decisions in a private setting. Unlike a judicial officer,
the mediator does not make decisions for you. Instead, he or she will help you
explore alternatives.
The aim is for you and your spouse to reach solutions tailored to the
specific needs and wishes of you and your family.
You should, however, hire a consulting attorney to advise you during the
process or to review the final agreement.
Or, you may choose to have an attorney accompany you to your mediation
sessions. Or, if your spouse appears to be hiding important information, you may
need an attorney to conduct formal discovery (to request information or take a
deposition, for example). This is unusual in mediation but can be done with an
agreement from you and your spouse.
Generally, mediation is less expensive than traditional adversarial
representation. The cost is greatly reduced in many instances because you and
your spouse voluntarily exchange important financial information, jointly retain
experts when necessary and avoid the expense of trial preparation and court
appearances.
Mediation also can significantly reduce the time it takes to finalize a
divorce. And mediators point to other benefits as well.
Working through divorce issues with a trained mediator may help you and your
estranged spouse better handle family and parenting issues in the years to come.
In addition, you may prefer hammering out your own solutions in private
mediation rather than going to court. Mediators suggest that divorced couples
also may be more likely to abide by a mediation agreement because it was reached
voluntarily.
To find mediation services in your area, you might try checking with your
county bar association or with the family law facilitator or family court
services at your local court.
19. Can I handle my own divorce without a lawyer?
Yes. Many people handle their own divorces without formal attorney
representation. The term for someone who represents himself or herself in a
legal matter is in propria persona, more commonly known as pro per.
When someone chooses this option, it is usually to avoid the cost of hiring
an attorney.
Still, many people do handle their own divorces successfully, particularly
when they have very little property and no children. But be aware that, as a pro
per, you could accidentally make expensive mistakes.
And if your spouse has an attorney, it may be even more difficult for you to
effectively represent yourself.
If you are considering self-representation simply because you cannot afford
an attorney, a judge may order your spouse—if he or she has more resources than
you—to help pay for your legal representation.
Or, if you have very little income, you might qualify for free or cut-rate
assistance (see #17).
As a pro per, you may use the services of a consulting attorney or a
mediator, or you may handle your divorce entirely on your own.
For assistance, you might turn to self-help books, the Internet or a family
law facilitator (if one is available at your local court).
In addition, the librarian at your local county law library may be able to
guide you to the appropriate resources and forms for your particular issues.
You will need to educate yourself about the court requirements. For example,
be aware that you should:
- Prepare and serve the applicable official disclosure forms.
- Put all agreements in writing and file them with the court for a judicial
officer’s signature.
- Follow the rules of evidence and legal procedures governing how and what you
may present for the court’s review.
- Make sure that your court filings are in the correct format and that they
comply with any specific requirements. (Many forms and instructions can be found
on the California Courts Web site at www.courtinfo.ca.gov.)
- Present evidence that is admissible.
- Argue issues that the judge has a legal right to consider. (For example,
fault in the marriage or moral obligations generally would not be taken into
account.)
