Filing a Divorce in California
How to File a Divorce in California
California is a "no-fault" divorce state; that is, a spouse seeking a divorce does not need to establish that the other spouse committed an offense. To get a no-fault divorce, one spouse only needs to declare that the couple can no longer get along. Not being able to get along is legally construed as “irreconcilable differences” in California.
Note that in order to file for divorce in California, one or both spouses must have resided in the state for a minimum of 6 months and in the county in which the petition is being filed for at least 3 months. If you do not fulfill this residency requirement, you may file for legal separation and subsequently file an amended divorce petition in the county where you live once the residency requirement can be fulfilled. However, same-sex couples married in California who do not reside in the state, but reside in a state (or states) that do not dissolve same-sex marriages, may petition for divorce in California regardless of the residency requirement. For such persons, divorce petitions must be filed in the counties where the marriages took place. It is worth noting that if neither spouse resides in California, the court may be unable to issue orders regarding property and debt, spousal support, or children custody and visitation.
After fulfilling these requirements, follow these steps to file the divorce:
- Fill out the required forms:
- Petition (FL-100 Form) - On this form, you will provide the court with some basic information regarding your marriage and request the orders you want the court to make.
- Summons (FL-110 Form) - This form provides critical information concerning the divorce process for you and your spouse. It covers several basic restraining orders limiting what you can do with your property, money, and other assets or debts. Additionally, it prevents you or your spouse from traveling out of state with children from your marriage or from jointly filing for a new or replacement passport for any of your children, without the other's prior written approval or court order.
- Property Declaration (FL-160 Form) - This form is required if you need more space on the petition to list your debts and properties.
- FL-105/GC-12 Form (Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)) - This form is required if you have children under the age of 18 with your spouse.
- FL-311 Form (Child Custody and Visitation (Parenting Time) Application Attachment) - This form is required if you want the court to issue custody and visitation orders.
- Review your forms: It is recommended that you have your paperwork reviewed by your local court's family law facilitator or self-help center. You may also hire an attorney to evaluate your paperwork and provide legal advice, either for the whole of your divorce case or for certain aspects of it (referred to as limited scope representation or unbundling).
- If required, complete local divorce forms: Your local courts may require you to complete divorce paperwork specific to the court besides the statewide divorce forms. Inquire about your court's local forms by contacting the clerk's office, visiting the court's website, or speaking with your family law facilitator or self-help center.
- Make a minimum of 2 copies of all the paperwork: You should keep one copy and make another for your spouse. The court will retain the original copy.
- File the paperwork with the clerk of the court: Submit your paperwork to the court clerk (both originals and copies). If no errors are identified on the forms, the clerk will retain the originals of each form and return the copies to you marked "Filed". Note that you will be required to pay a filing fee in the process. Check the court filing fee document to ascertain your filing fees. You may request a fee waiver if you cannot afford the fee.
- Serve the paperwork on your spouse: To serve your paperwork, you must identify someone 18 years or older, other than you, who will deliver a copy to your spouse. The individual delivering the paperwork to your spouse may be a friend, relative, sheriff of the county, or process server. If you hire a process server or sheriff, you must provide the person with a photograph of your spouse and a list of times and locations that the spouse can be easily located. It is recommended that you find a process server located near your spouse's residence or place of employment. The distance traveled by the server often determines their fees.
Alternatively, you may serve the paperwork (including a blank response form) on your spouse by using a personal service (a server hand-delivering a copy of all papers) or through service by mail with a Notice and Acknowledgement of Receipt (FL-117 Form). If you use the FL-117 Form, your spouse must sign, date, and return the form; otherwise, you will be required to have your spouse served again by personal service.
- File your proof of service: Once you have served copies of your paperwork on your spouse, you must provide evidence to the court that you have accomplished this step. To do this, your server must complete a proof of service form.
Your server must:
- Complete the FL-115 Form (Proof of Service of Summons).
- Provide you with the Proof of Service. If your spouse was served through the mail and received a Notice and Acknowledgement of Receipt, ensure that your server also provides you with the Notice and Acknowledgement of Receipt (FL-117 Form).
Subsequently, you must submit your Proof of Service (and, if applicable, your Notice and Acknowledgment of Receipt) with the clerk of court. Make a copy so that you may keep the copy while the clerk files and retains the original.
- Wait for your spouse's response: Your spouse has 30 days to submit a response to the court. Your spouse may:
- Do nothing. If this happens, your case may proceed without the other party.
- File a response but retain a formal agreement with you on the divorce's terms.
- Submit a response expressing disagreement with your request.
- Serve your financial disclosure forms: While filing for divorce, California requires divorcing parties to exchange written information on their assets and debts, as well as incomes and expenses. To do this, you must complete and exchange a series of forms. This is referred to as "disclosure". Your first disclosure is referred to as a preliminary declaration of disclosure. Occasionally, you will also be required to make a second, final disclosure. You must personally serve or send your preliminary or final declaration of disclosure to your spouse. This implies that the Declaration of Disclosure (Form FL-140) is delivered to your spouse by someone other than you who is 18 years old or older. Additionally, you will be required to complete the following forms in order to complete your preliminary statement of disclosure:
You may need to include any previously filed tax returns and make copies of all paperwork and tax returns. The originals are for you, while your spouse receives a copy of each document. Next, you should complete the Declaration Regarding the Service of the Disclosure Declaration (Form FL-141). Form FL-141 must be duplicated, and the original and duplicates filed with the court clerk. Note that you may submit your financial disclosures together with your petition but no later than 60 days after filing.
- Finalize your divorce: After completing the steps above, the next step is determined by your spouse's response to your petition and the existence of an agreement on the terms of your divorce. Check the Completing Your Divorce or Legal Separation page of the California Courts website to find out the final steps.
How Long Does It Take to Get a Divorce in California?
The time required to get a divorce in California is dependent on various factors, including whether the divorcing parties have children, own properties, and how many assets are held by the parties. Other factors to consider include your current relationship with your spouse and whether a prenuptial agreement existed at the time of the marriage.
At the least, California requires a six-month waiting period for parties filing for divorce; that is, at the minimum, 6 months will pass between the time of serving the other party a copy of the petition and when the divorce becomes final. However, some divorces may require the parties to attend court sessions and undertake discovery. Consequently, a contested divorce may last from one to several years, while an uncontested divorce can be completed within a few months.
How Much Does a Divorce Cost in California
In California, divorce cost varies on several factors. The cost is usually much lower in uncontested cases or significantly higher in contested ones, depending on the nature of the disputed issues. Your divorce case will be more expensive, the more complicated it is. For instance, a divorce including contested issues like property division, child custody and support, and spousal support which requires litigation will be costlier than an uncontested divorce that is resolved outside of court. Additionally, divorces can get more expensive when there are minor children, significant assets, or one spouse seeks spousal maintenance.
Regardless of whether you hire an attorney, the initial court filing cost is between $435 and $450. Couples who are financially unable to pay the filing cost may ask for a fee waiver. Depending on the specific facts, your county court may charge additional costs. In addition to the regular expenses, if you do not use a lawyer, you may need to retain the services of accountants, real estate brokers, or child experts to assist you in negotiating the divorce arrangement. Besides, you may choose to retain the services of a mental health specialist to assist you and your children in coping with the psychological stress associated with the divorce process.
If you opt to engage a lawyer, the cost varies depending on the California location where they operate. If the circumstances around the divorce are complex, a divorce attorney may require you to pay an upfront retainer fee. Also, the attorney may charge additional costs for document copies and distribution, as well as remuneration for financial analysts, appraisers, and witnesses.
How to File a Divorce by Yourself in California
You can file a divorce by yourself without the need for an attorney. After verifying that you meet the California residency requirements, you may follow these steps to complete the filing process in person:
- Ensure that all necessary paperwork is completed
- File the paperwork in the county of residence
- Pay the $435 filing fee
- Serve copies of the paperwork on your spouse in person or by mailing copies of the documents to them.
Note that you will need to provide your spouse with additional documents to sign in order to subsequently file a court confirmation confirming that your spouse was notified of the marital dissolution. Additionally, the individual assisting you with the service must complete and submit confirmation that they delivered the documents to your spouse.
Furthermore, you and your spouse must exchange financial documents within two months of initiating the divorce filing. While none of these documents will require court submission, you must show verification to the court clerk that financial information has been disclosed between the parties.
Choosing a Divorce Lawyer in California
If you are filing for divorce, it is critical that you have an attorney who can defend your rights and help you through the legal process for what is usually an emotional and tough time for the parties involved. However, with so many divorce lawyers to choose from, you may be overwhelmed by the thought of selecting the right one. While it requires time and effort, it is vital to do your research before choosing an attorney to represent you. You may find the following steps helpful in selecting a divorce attorney:
- Consult with several attorneys. No matter what assurances an attorney makes, you are under no obligation to select the first attorney you contact. It is essential to consult with multiple attorneys before deciding on one.
- Consider a divorce attorney with significant experience. Attorneys are generally trained in various areas, so be sure that the one you pick is experienced in family law or has handled divorce cases in the past. You should also consider hiring an attorney who specializes in the areas relevant to your lawsuit.
- During your consultation with an attorney, you may inquire about the attorney’s billing practices, or any other issue that requires clarification.
- It is advisable to opt for an attorney who is familiar with your local court. While this does not imply that you must choose an attorney from your local county, it is helpful if the individual is acquainted with the court's rules where your case will be filed. It is best to have someone who is familiar with the court personnel and how the court functions rather than having the attorney learn the ins and outs of the court system while handling your case.
- Any consultations should be supplemented with online research. Phone calls to the local bar association may be necessary to learn about the reputation of the attorney.
- Speak with friends and relatives to find out if they know of any successful divorce attorneys. When a lawyer does an outstanding job for a client, the attorney will likely be recommended to other potential clients.
Can You Get a Divorce Without Going to Court?
Since California is a no-fault divorce state, it is not mandatory to appear in court unless you need the family court judge to decide issues on which you and your spouse cannot agree. In other words, you are not required by statute to appear in a family law court to get a divorce. However, the process is not always straightforward and will depend on many factors. To avoid appearing in court, you have a few options for resolving your divorce in California. For instance, you and your husband may agree verbally on divorce-related matters. Following that, you may complete and submit the necessary documentation to the court.
One of the options available to persons seeking divorce is mediation. In California divorce mediation, an independent third party (the mediator) assists parties in reaching a mutually acceptable agreement. The mediator assists divorcing parties in discussing their concerns in a manner that often makes it simpler for the couple to resolve the conflict independently. Note that mediators are not decision-makers. Agreements are only possible when both divorcing parties agree. You will not be compelled to agree to anything by the mediator.
Collaborative divorce, alternatively referred to as collaborative law, is another method of handling your divorce. In a collaborative divorce, you and your spouse reach an agreement with the assistance of a professional. Each spouse hires a collaborative lawyer who advises and assists you in drafting the settlement agreement. Spouses meet with their counsels separately. Additionally, the attorneys and both clients meet regularly. Occasionally, you and your spouse may bring in other experts, such as child custody specialists or accountants, to assist in resolving your case without going before a court in a contested case.
In a collaborative divorce, both spouses and their attorneys often sign a document agreeing not to go to court. If the parties cannot come to an agreement and must go to court, the attorneys agree to resign from the case. In such an instance, you must hire a new attorney or represent yourself.
To find a mediator or collaborative divorce professional in your area:
- Search your local telephone directory (most have a section for mediation)
- Search on the Internet
- Contact a local community organization
- Contact the bar association in your area
- Contact the local court to verify if it has a mediation panel
As an alternative to getting a divorce without going to court, you can also get a divorce called summary dissolution in California if you qualify. A summary dissolution is a quick option to get divorced without having to appear before a judge or necessarily hire a lawyer. Note that you or your spouse must have resided in California for the preceding six months and in the county in which you petition for summary dissolution for the preceding three months.
How to File for Divorce in California with Children
California courts use the same basic set of forms for persons filing for divorce regardless of whether children are involved. The filing process is also similar, with minor differences. For example, the spouse filing the divorce petition must include a blank child custody declaration form (UCCJEA Form FL-105/GC-120) among the documents to be served on their spouse.
In addition, if you or your spouse receives government benefits for a child from the marriage (or if a child support case is pending with your local child support agency), you are required to serve a copy of the filed forms on the local office of the child support agency where the benefits are being paid. You may use a location tool on the California Courts website to determine the location of your local child support agency. The child support agency may be contacted via mail with Form FL-335 (Proof of Service by Mail). Note that this form may not be used to serve your spouse.
Also, in a divorce issue where children are involved, the couple has to personally resolve or have the court rule on sensitive matters such as:
The process for negotiation or determining the rulings on these matters usually increases the cost of the divorce and the period taken to complete the process.
How to File for Divorce Online in California
California does not yet allow divorcing parties to file for divorce online and resolve their case without appearing in court or submitting documentation to the court. Regardless of whether the divorce is contested, an appearance at the courthouse to submit papers is required. Although several websites offer online divorce filing services, the majority of services they offer fall under three or four distinct categories:
- Providing online versions of the court paperwork that must be submitted
- Assisting with the preparation and completion of divorce forms
- Assisting with serving divorce papers on the other divorcing party
- Providing guidance and resources on how to proceed with your divorce case