Divorce in California can be an intimidating process. For many people, it may be the first and only time they’ve been involved in any kind of legal action whatsoever.
Terminology, court forms, legal procedures, the courts, working with attorneys, who to talk to, and how to proceed–all while trying to protect your best interests–can be an overwhelming task.
To help demystify and simplify the California divorce process, I sat down with divorce attorney and Certified Family Law Specialist Erin Levine.
Levine approaches divorce in four easy-to-understand steps, so that people unfamiliar with exactly what happens can gain a greater sense of security in knowing what to expect as they move forward.
Let’s jump in.
What are the steps to the divorce process in California?
There are four main steps.
Step one is the initial filing of the petition for divorce.
The second step I call temporary orders. This is when you need something like financial support, or a temporary parenting plan, and if you’re not able to come to an agreement with your spouse, you might seek what’s called temporary orders.
The third step is the disclosure and discovery step. This is where you’re exchanging financial information, and if you can’t get everything that you need then you’re using the legal process of discovery to get the documents and information that you need.
The final step is the judgment, which is really just getting to the agreement. It’s trying to sit down and work something out, either with a mediator, a CDFA, or between yourselves, and if you’re unable to come to an agreement, then actually litigating, going before a judge,
Ultimately you now have an order or an agreement that becomes a judgment, and the judgment equals divorce.
How do you start the California divorce process?
You start by one of the spouses, filing the initial divorce documents. This includes the petition, the summons, and if you have children, the UCCJEA.
What is a summons, petition, and the UCCJEA?
These are all judicial council (court) forms. California is a very forms-driven state.
If you have an agreed divorce, or at least a divorce that isn’t too messy, you’re probably not going to need anything outside of the California forms.
The summons is a document that lets you and your spouse know what’s required of you while the divorce action is pending. As an example, you can’t leave the state with your children without a court order or the agreement of your spouse once the divorce is filed, and pending a divorce judgment.
It also says how and when you can spend your money. Essentially you can spend it as you ordinarily would, to pay your housing expenses, but if you’re going to make a large expenditure, or a large withdrawal, it might be prohibited in the summons. You’ll want to take a good look at that.
The petition is the document that tells the court that you or your spouse wants a divorce.
If you are a same-sex couple, and you were domestic partnered but not married, you’ll use the same petition. It’s the FL-100, and you can be as thorough or as vague as you want on that petition, but you do want to ensure that you’re protecting your rights there. If you think spousal support might be an issue, or might be something that you might want, then you’ll want to check that box.
Then the UCCJEA form lets the court know that California can make orders regarding your children.
UCCJEA stands for Uniform Child Custody Jurisdiction Enforcement Act. It’s something that we follow throughout all of the states, and the courts keep in their records to try to track your child.
You might be asked, “Are there any other cases regarding your kids?” meaning did somebody file an action in Kentucky, or another state. Or “Is there a domestic violence restraining order that involves your kids that we should know about?”
Then it also asks where your kids have lived the last five years. If they lived with both of you, or sometimes with you and sometimes with your ex, then that gets written in that form, too.
Does it matter who files first? Does it matter if you’re the petitioner or the respondent?
That’s a really good question, and for the most part it doesn’t matter. There’s no legal advantage for being the petitioner or the respondent.
However there is a practical advantage, meaning if you’re the doer spouse, or you’re the spouse that wants out see this through, it’s a good idea to be a petitioner, because if your spouse doesn’t technically respond to the petition then you can push the divorce forward, even without their cooperation.
I tend to say, “If you’re the doer, if you want control over this process, and you don’t yet have an agreement, it’s a good idea to be the petitioner. Otherwise it really doesn’t matter.”
How much does it cost to file for divorce?
It depends on the county, but it’s usually in the $435-$450 range, and that’s for both parties. If the other spouse files what’s called a response, then they’re going to have to pay that amount, too.
Is there any reason why they wouldn’t file a response?
Yes. You wouldn’t file a response if the two of you already have a full agreement, then you don’t necessarily need to file a response, or if you plan on working together to come to an agreement.
However, that’s fraught with some concern, too. I would say that if you’re not filing a response to save on money and save on energy, because there’s a lot that comes when you file a response, it requires you to do a lot of forms as well.
If you’re choosing not to file a response, then I would say you would want to get an agreement from your spouse in writing. It doesn’t have to be fancy. It just says that they will, if negotiations break down, they’ll allow you a certain period of time, maybe 14 days, to file your response, so that you can still be a player in your own divorce.
Can you explain what a Notice and Acknowledgement of Receipt is and how that differs from filing a response?
The Notice and Acknowledgment of Receipt is a tool that we use, a form that we use, to avoid having to do the nasty personal service by a random process server.
A lot of times people say, “How do I avoid that? I want to give my spouse a heads up, and I don’t want to start out the divorce with her or him showing up to work and having this random person at their car handing them documents.”
A notice and acknowledgment of receipt is a document that the responding spouse would sign to say that he or she received the petition. They’re not saying they agree with the petition, they’re not saying they agree with the divorce, they’re just saying, “Yes, I got these documents and we can move forward.”
If you don’t sign that notice and acknowledgment of receipt then expect to be personally served, because that’s the only other option that California offers.
Essentially the Notice and Acknowledgment of Receipt and the Response are two separate and distinct things. The notice and acknowledgment of receipt is really what enables you to potentially start the divorce process off on a less adversarial way than starting off by serving your spouse and escalating the divorce at the outset. Is that right?
Yes, and you brought up an important point, which is a lot of people think that by signing the notice and acknowledgment of receipt they filed a response, but they haven’t.
What happens after service, or after the notice and acknowledgment of receipt? What does the respondent have to do next?
Once they have signed that, they have 30 days to either file their own response, which is a similar document to the petition, or to at least make a decision whether or not they’re going to file a response.
If there is fighting, if there is a lack of communication between the parties, if the petitioner lawyered up in a more traditional sense of the word, meaning that they’re ready for war, then I would say you definitely want to file a response or at least talk to a lawyer about what your options are.
What is the risk of not filing a response?
The risk of not filing a response is that your spouse moves forward without you, and while they have to follow certain laws, if there’s no evidence countering what is filed, they’re likely going to get a really nice judgment that benefits them, and not you.
Sometimes it could be as simple as, sure, they divided the property 50/50, but your spouse gets the assets that you wanted, or you get assigned the debt with the higher interest rate.
A default judgment is a scary thing.
Even if things are 50/50, it still goes to the fact that not all assets are created equal. They may be able to cherry-pick the more favorable assets, or have an easier way of asserting a separate property claim, and so on.
Step 2: Temporary Orders
What are temporary orders? What are some examples of temporary orders that someone might request?
The goal is to try to come up with some temporary agreements with your spouse if at all possible while the divorce is pending. It’s not always possible, and when it isn’t, and your spouse cuts you off financially, or you’re unable to come up with a parenting plan but you really want to move out, then you need to make a request for order.
You’re using these forms that the court provides or that California provides, but you have to actually go to court, go in front of a judge, and sometimes there are even more requirements.
For example, if it has something to do with child custody, you’re also going to meet with a third-party counselor or therapist. That’s required. In some counties, parents are going to meet with a counselor, try to come to an agreement, and if you don’t, that’s the end of it.
In other counties you meet with a counselor, try to come up with an agreement, and if you don’t have an agreement, that counselor is going to make recommendations to the court that are not binding, but they’re very, very persuasive.
So that’s the difference between being in a recommending versus a non-recommending county?
That’s right. Other temporary orders that we sometimes file are wanting to get exclusive use of an asset because the spouse is either not paying for it or not being cooperative or doing something to hurt it.
For example, if spouses run a business together, and one spouse is running it into the ground, you might want to seek a temporary order that you get to run that business.
Or sometimes even the payer spouses, the “in spouses” as we call it, sometimes they want to do temporary orders for support, because it’s less expensive for them to pay support than it is to share a joint account and see a spouse take and take and take and take.
So, sometimes if a spouse is overspending, there’s two options on the cash flow side. That would be pooling and sharing their income versus separating finances and going into support. There’s nothing wrong with pooling and sharing, but if the supported spouse needs support they might ask for it, or if the payer spouse decides that they’re being put at a disadvantage by pooling and sharing then they may actually seek to pay support. Is that a fair summary?
Yes.
What kind of legal costs are we talking about with putting temporary orders in place?
If you’re hiring a lawyer to do temporary orders, this could be a $4,000 to $6,000 ordeal, just to file the request, do all the forms that are required of it, go to court, and then prepare the orders.
Step 3: Disclosure and Discovery
What is the declaration of disclosure?
This is a combination of several documents that you prepare to disclose your financial situation to your spouse. Sometimes it’s already an open book because spouses share joint accounts, everything is shared between the two of you.
For other couples, they’ve lived really independent financial lives. This can feel really scary and frustrating, but it’s something that the state does require. You’re sharing your assets and your income information and your debts.
What are the declaration of disclosure forms?
The declaration of disclosure includes several judicial council forms. They are the Declaration of Disclosure (FL-140); Declaration Regarding Service of Declaration of Disclosure (FL-141); Schedule of Assets and Debts (FL-142); and the Income and Expense Declaration (FL-150).
They’re required even if you have a full agreement. They don’t all get filed, but at least one does. I always recommend two.
I recommend that the FL-150 should also be filed, but they all need to be exchanged, meaning you do need to serve and deliver those on your spouse.
Let’s say one of the spouses didn’t have access to the financial information, and maybe they know there’s a lot of financial assets out there, but they only have access to a small piece of that. Would they just be disclosing what they have access to, or how would they deal with or make sure that they meet the full disclosure requirement if they’re not listing their assets because they don’t have visibility into that?
That’s an excellent question. You disclose everything that you have visibility into, and that includes your separate and your joint property, because it hasn’t been determined yet whose is whose. You’re going to disclose everything.
For what you don’t have access to, the best thing to do is to at least mention it. If you know, for example, that your spouse has a CalPERS retirement plan, but you don’t have any idea what the account number is or how much is in there, you can at least put it on the form, and attribute it to your spouse or the community.
Later we’ll find out exactly how much is in there, It’s a good way to double check yourself when you’re getting to the judgment stage, to remember that you’ve actually decided upon everything that is part of the marital estate.
So it’s a good way to flag things, even if you know that something may exist, but you don’t have real knowledge of it. By listing it, you kind of flag it to help a professional team and everyone else be aware of what to look for.
Yes. It’s a smart move that makes sense in the discovery and disclosure step.
Are there any deadlines for completing and filing your financial disclosures?
It’s 60 days after you file your petition or response.
What happens if someone’s spouse refuses to do their disclosure? They file a response, but then they’re not disclosing any information. It may be that either they’re not exchanging information during the disclosures period, or it’s clear that they have listed no assets, and you know that there’s a lot of accounts that they have access or visibility to?
Nothing automatically happens. They miss the deadline, and nothing automatically happens. It’s you, as a doer spouse, that’s going to have to move the action forward.
There are two things in play here.
One is you want to move your divorce forward, and you can’t, if your spouse has filed a response and hasn’t provided their disclosures, or you’re the respondent and the petitioner hasn’t done their disclosures,
The second piece is you want accurate information because you can’t possibly decide on what it is that you need or want or come to a fair agreement unless you have this information.
You can remind your spouse of the legal requirement. You can file a motion with the court to ask to compel to your spouse to do the disclosures. That’s just to keep the action going forward.
If you actually need the documents, you can ask for them informally and see if that goes anywhere. Or you can subpoena them directly from the institution because you have a right to get this information.
If your spouse isn’t giving you his or her income information, or retirement information, you can actually go straight to the employer and subpoena that information, or you can engage in what’s called the discovery process, which is depositions and interrogatories and form requests for documents and related information.
In terms of discovery, there’s an easy way and a hard way. The easy way is full disclosure. It’s part of the process where both parties lay all their chips on the table, and there’s transparency about what the current situation is even if you may still have disputes that you need to work through.
The hard way is that if one of the parties is less than forthcoming, that’s where the discovery would kick in.
That’s where most of our cases get messy and get expensive.
What is the discovery process in California?
One of the reasons why the discovery process is so expensive is because it’s covered by the civil code of procedure, not the family code. In the family world we have a lot more discretion, we can do things a lot more informally, but once you get to the civil world of law, there are rules and procedures that you must follow, and those are expensive for both parties.
Discovery is a method by which you can get these documents and information that you need from the other party in a formal way, and if they don’t provide it, there are consequences.
Mandatory attorney’s fees are one consequence. Contempt is another. A party can lose credibility in the eyes of the judge. Even if you’re in a discovery process, and you’re not disclosing some cash asset, that could affect you in the parenting issue that’s before the court.
Judges are human, and when they see you not being fair or reasonable in one area of your case they might question your credibility in another.
Step 4: Judgment
What does the judgment phase of the California divorce process entail?
If you haven’t spoken with a lawyer yet, then you might want to just to get a sense for your rights and responsibilities, what you might be entitled to, what pitfalls to avoid.
It’s not necessary, but it’s certainly something you can think about, because this is the stage where you’re sitting down with your spouse, or you’re sitting down with a mediator, or you’re working with a private judge to try to come to an agreement on all issues. That’s property and debt, financial support, child custody, and attorney and mediators. Who’s going to pay them, and how much are they?
Oftentimes, people will start by trying to see what they can resolve together, and if there are still issues that are unresolved after those conversations, sometimes they’ll agree to take those issues to a mediator, a third-party neutral, who will try to help them resolve it.
You could select a divorce process – whether it’s do-it-yourself, mediation, collaborative divorce, or litigation – at any phase of the process. But by the time you get to the settlement negotiation piece, at that point you’re going to kind of decide which one of those paths you’re going to follow. Those paths are either some form of mutual agreement or a judge decides, and it’s all just how you get there. Is that a good summary of that?
Yes. Keep in mind, the more you can resolve without having to go to court, the less stress and the more money you save, and likely the better outcome, because when you go to court, the court has a tremendous amount of discretion. You never quite know how they’re going to roll, and whether it’s going to benefit you.
If you’re not able to settle, whether it’s one issue or multiple issues, what does the trial preparation process look like? What happens at trial? What happens after trial?
A trial appears to be the worst-case scenario of not being able to reach a mutual agreement. What does that look like?
Trials…they are not fun.
There are usually pre-trial orders that require both sides, meaning both spouses and/or their attorneys, to brief the case, to exchange their evidence, to exchange their witness lists, and who they’re going to have speak about their case.
That could be anyone from a teacher who’s going to talk about a child custody issue, or an issue with when the child is dropped off at school by one parent versus the other, all the way to a financial expert who’s going to talk about the value of the house, or the value of a retirement plan, but there are lots and lots of different experts, depending on what issues remain in dispute.
The first piece is really strategizing your position for trial, and determining what issues are in dispute, and what law applies, and then you have to then prepare for trial. You not only follow all these pre-trial orders, but you’re also preparing things like testimony, what you’re going to testify about, what questions you’re going to want to ask your spouse, as well as the witnesses.
Instead of presenting your case like a narrative with here’s what I want and why, it’s going to be an actual trial, where to elicit your position we have to now share testimony and exchange documents and get those into evidence so that the judge can ultimately make his or her decision.
In family law, sometimes you get several days in a row for trials. Sometimes those days are over a course of weeks or months. It really depends on the county that you’re in, but if you need several days for trial, oftentimes every day won’t be consecutive.
Delving deep into the divorce trial process sounds like a good conversation for another time. But this has been really helpful. Do you have any resources that might help people get a good overview of the divorce process.
Yes. I created a simple flowchart that shows what the different stages of divorce are and the different methods you can employ to get to the final destination, which is divorce.
I also have a website, Hello Divorce to assist people as well. If you sign up for a free membership you have access to tons of resources and tools that you help you through the divorce process.
That’s information someone could access, regardless of whether they’re planning to use Hello Divorce or not? They can have access to the resources, familiarize themselves with the platform, see what’s available, and then decide if it is the right path for them, or not. Is that right?
Exactly. If they’re ready to start the forms, or at least get a good sense for the information that’s required to get a divorce, then users could start with our divorce navigator, and follow some guided interviews that will produce the forms required for California divorce.
Be sure to use the promo code to get $50 off a premium membership: SURVIVEDIVORCE50
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