California Divorce: A Beginner’s Guide

A Guide to California Divorce with Kim Madigan

What are the grounds for divorce in California? What are the residency requirements? Does it matter if you’re the petitioner or respondent? How long does it take to get divorced in California? What does the divorce process look like?

I sat down with Kimberly A. Madigan, a prominent Bay Area Certified Family Law Specialist and founding partner at Madigan & Lewis, LLP in Redwood Shores, to discuss all these questions and more.

Knowing what to expect, and familiarizing yourself with the terms and legal jargon, will help you navigate the divorce process more effectively and set reasonable expectations.

Let’s jump into the conversation:

What are the grounds for a divorce?

Kim Madigan: In California, there are two grounds for divorce, and both are referenced on the Petition – Marriage/ Domestic Partnership (form FL-100).  (The Petition is the document that starts the dissolution, legal separation or nullity proceeding in California.) The ground that people hear of most often is ‘irreconcilable differences.’ The other ground is the permanent legal incapacity to make decisions.

What does ‘irreconcilable differences’ mean?

It means that the marriage is broken and cannot be repaired, even with the help of a counselor. You don’t need to provide the court with any other reason or prove anything to the court. It doesn’t matter who wronged who. It doesn’t matter whether one spouse committed adultery or is to blame for the breakdown of the marriage. From the court’s point of view, there is no guilty person or innocent person. That is why California is referred to as a ‘no fault’ state.

What exactly is a ‘no fault’ divorce?

California started the no-fault divorce revolution when it passed the first no-fault divorce statute in 1970. I’ve handled many divorces in California and I have never divorced two people based on permanent legal incapacity. But, to divorce on that basis, a party would have to provide psychiatric or medical testimony from an expert to show that their spouse is incapable of making decisions and legitimately incapacitated.

Are there any residency requirements in California? How about on a county level?

Yes, there are. In California, for the Superior Court of California to have jurisdiction, a fancy word for power, either spouse must have lived in California for the last six months, and in the county where the case will be filed for the last three months. Sometimes, spouses may live in separate counties, so people should be aware that there may be pros and cons associated with filing in one county over another.

For instance, some counties are ‘recommending’ when it comes to custody and visitation, other counties are ‘non-recommending.’ So, in consultation with an attorney, you may want to examine which county is going to be most favorable for their case. If you don’t meet the residency requirement, you can still file for a legal separation, then file an amended petition asking the court for a divorce once you have satisfied the residency requirement.

Lastly, regarding the residency requirement for same-sex couples married in California but living out of state, they can file to end their marriage in California regardless of the residency requirements. So, there are special rules that apply.

You mentioned ‘recommending’ versus ‘non-recommending’ counties…What does that mean? And what is the difference?

San Mateo County, where my office is located, is a recommending county. What that means is that if a custody or visitation matter is before the court, BEFORE the judge can make any decisions about custody or visitation of the children, the parents must go to Family Court Services, located at our public court house. There, they must meet with a child custody recommending counselor and try to come to an agreement on the parenting plan.

If they cannot agree, or they are only able to come to a partial agreement, the counselor will prepare a written report. That report, usually five to six pages long, will contain a summary of facts in the case, each parent’s concerns, and the counselor’s recommendations for what the custody orders and parenting plan should look like.  The report will go to the parents or their attorneys, and it will also go to the judge.  The recommendations carry a lot of weight with the judge. However, they’re not simply rubber-stamped. The parents have an opportunity to go to court with their lawyers to argue that the recommendations (some of them, or all of them) should be, or should not be, adopted by the court.

Santa Clara County is an example of a non-recommending county – so the parents would still be required to attend Family Court Services mediation – but the counselor would not have the authority to issue written recommendations. If the parents were still unable to agree, then their case would go through a very long process with the court.  This would require various meetings with the judge, and potentially, the appointment of a custody evaluator. It’s a much longer and more expensive process.

When starting the process, who is the petitioner and who is the respondent? What do those terms mean? Is there any benefit to being one over the other?

That’s a question I hear a lot.  Many people wonder if there’s a strategic advantage to be first to file.  Firstly, let me explain what is the petitioner, and what is the respondent. The first person to file a California petition is called the petitioner. The person who responds is called the respondent. Simple as that!

I usually advise clients that it really doesn’t matter who files first. For some people, it is empowering to be the petitioner and file first. It feels good to them psychologically. One other advantage is that the person who files first can control the county in which the divorce proceeding is venued.

For example, if one spouse lives in San Mateo, and the other spouse lives in San Jose, and there are custody and visitation issues at play, then the spouse living in San Mateo may want to rush to the court house and file first so that their custody and visitation matter can be handled by the Superior Court in San Mateo County. In my experience, you can get temporary custody and visitation orders much faster in San Mateo County than you can in Santa Clara County.

The other distinction between the petitioner and the respondent is that if the case goes to trial, and very few do, but if it does, the petitioner will be first to put on their case.

How much does it cost to file for divorce in California?

The current court filing fee for the Petition is $435. However, that’s just the initial filing fee.  Other filings may be necessary.  Attorney fees are separate from court filing fees and are much more expensive.

How long does it take to get a divorce in California?

There is a mandatory waiting period in California. The divorce will not be final until six months plus one day from the date the petition is served on the respondent, or the date of their appearance, whichever occurs first. However, that is not to say that all the paperwork for the divorce can’t be turned in prior to the expiration of the six-month period. It’s just that the termination of marital status and the legal effect of the divorce won’t be final until the six-month period has passed. Having said that, in my experience, the majority of divorces take about 18 months to negotiate and finalize, whether using an alternative dispute resolution process (such as mediation or collaborative divorce) or court process.

So, nothing necessarily happens after that six-month waiting period in California? That’s just the earliest when the divorce could be finalized?

Exactly, though many people find this confusing.  I’ve had clients call me at the expiration of six months and ask me if they’re divorced yet. If only it were that simple!

Tell me a little bit about the process for getting a divorce. We’ve talked a bit about the grounds, the costs, some strategic considerations, about the petitioner and respondent, but walk us through, step-by-step, what the process looks like for getting a divorce in California.

I usually refer clients to the Judicial Council of California form FL-107, which has a very handy flow chart for people who are visual; the form cleanly lays out the legal steps for a divorce or legal separation in California.

Divorce Process in California

To quickly summarize for my clients what the process is, I usually break it down into four or five stages/steps.

Step number one is starting your case. The petitioner files a Petition and a Summons with the court via the court clerk. If there are children involved, they also file a Declaration under the Uniform Child Custody Jurisdiction and Enforcement Act. The court clerk will then stamp the forms and return file endorsed copies to the petitioner.

Step number two is the service of the above forms.  Someone 18 years old or older, not the petitioner, serves the respondent with their forms, plus a blank response. Once that’s done, the petitioner files a proof of service form with the court demonstrating that the respondent has been personally served and has proper notice of the proceedings.

I should mention that personal service is not the only way to effect service. Another option for serving is by mail. However, mail service does require some cooperation between the two spouses. Upon receipt of the forms, the respondent may sign and return a Notice and Acknowledgment of Receipt form to the petitioner. Assuming this is done in a timely manner, then the petitioner can file that document, along with a proof of service, and satisfy the service requirements that way.

Once served, the respondent has 30 days to file and serve their response. The response form is essentially a mirror image of the petition form.  These forms are the petitioner and respondent’s ‘wish lists’ and describe what they’re hoping to get from the court at the conclusion of their case. There are various boxes to check on the forms.  For example, does the party want joint or sole custody?  Are they asking the court to order spousal support?  Is there community property to divide?

The forms are relatively straightforward and easy to fill out. Checked boxes indicate to the other spouse, and to the court, exactly what the party will be asking for in the proceeding.

Step number three, I would say, is probably the most time-consuming – the disclosure and exchange of financial information.

In a divorce, each spouse must fill out and exchange what’s referred to as a Declaration of Disclosure. The Declaration of Disclosure consists of an Income and Expense Declaration, a Schedule of Assets and Debts, tax returns, and other important financial documents. During the divorce, the spouses are required to go through this exercise twice. They first complete a Preliminary Declaration of Disclosure, then later do a Final Declaration of Disclosure.

However, most spouses waive the Final Declaration of Disclosure. This can be accomplished by filling out a form, a declaration under penalty of perjury, informing the court that they have satisfied all of the Preliminary Declaration of Disclosure requirements, and that their Preliminary Declaration of Disclosure is fully updated and accurate and includes all material information.  Once the disclosures have been exchanged, petitioner and respondent each file a Declaration Regarding Service (FL-141) with the court indicating that the disclosures were served.

Step number four is negotiating the settlement and finalizing the case.  Again, most cases settle.  Ninety-five percent of cases don’t go to trial.  But one way or another, a settlement will be reached, and a marital settlement agreement or stipulated judgment will be prepared by the attorneys. The agreement will set forth the parties’ agreements on child custody, division of property, child support, spousal support, attorney fees, and termination of marital status.  All the issues that are under the divorce umbrella are dealt with in the settlement agreement or stipulated judgment unless they are reserved for future determination by the court.

The marital settlement agreement or stipulated judgment gets submitted to the court along with all of the other mandatory Judicial Council forms.  (I won’t get into those right now; it would be very long and very boring.)  The judge then reviews and signs the Judgment.  A Notice of Entry of Judgment form is later returned to the parties by the clerk.

Lastly, if two spouses are cooperative and come to a complete agreement amongst themselves, it is possible to get divorced in California without ever setting foot in a court room.  But usually it requires some legal assistance with the forms and paperwork.  The paperwork can be tricky and will be rejected by the Clerk’s office if it is not completed correctly.

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