How to file for divorce in California

Filing for divorce in California is pretty simple – you just file a form with the clerk. After making the difficult and emotional decision (usually it’s emotional and difficult; there are exceptions), the actual filing can be a bit anticlimactic, if pricey.  All you need to do is fill out the Family Law Summons, Petition, and the Declaration Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which is a form you need only if you have children of the marriage.  All three forms are pretty straightforward, but they do need to be completed properly to ensure your rights are protected.

For example, the Family Law Petition outlines the basic issues in the case.  It isn’t a formal request for anything, but rather is a form that defines the universe of the issues in your case.  It is the Family Law RFO (Request for Order) or motion that gets you before the judge asking for the judge to make orders, not the Petition.  So if you mark on your Petition that you want your ex to pay your attorney fees, you won’t get those unless and until you also file a court motion, which is separate from the Petition.  Many of my clients come in to my office, upset that their ex has marked something on the Petition, when there’s nothing to get upset about.

Of course, once you have filed the documents, you need to serve them on your ex, which can be easy or difficult, depending on your situation.  Of course, you cannot serve the documents – they must be served by someone who is not you but is over 18 years of age.

And with that, your divorce is underway…

What are “irreconcilable differences”?

Whenever a celebrity couple splits, the media make a fuss over the citation of “irreconcilable differences” in the divorce paperwork.  What does this mean?  In California, there are three “grounds” for divorce: irreconcilable differences, fraud and bigamy (having more than one spouse).  Fraud not only is hard to prove, but the kinds of fraud are limited in California, and bigamy does not come up too often.  So any couple wanting to divorce is generally going to be in the “irreconcilable differences” category.

Irreconcilable differences essentially means that your problems are so big in your marriage that you can’t fix them, even with counseling or other outside help.

In reality, the court doesn’t much care why you want to get divorced.  This is why, when my clients want to tell me about affairs and cheating and what s/he did, I have to tell them that it doesn’t really matter for the court case (save substance abuse & domestic violence when there’s children involved).  I also tell me clients that, when they’re hung up on what happened and who did what to whom (and really, who isn’t fairly obsessed with that during a divorce?), then they should get themselves to counseling as soon as they can.  Most therapists are far cheaper than I am on an hourly basis, and they’re trained to help someone with the emotions of divorce…while I am not.

So the next time you see someone talking about “irreconcilable differences,” you’ll know that this just means the couple doesn’t like each other anymore.

Filing your California divorce case: when and who should go first?

A critical issue that comes up in almost EVERY family law case is: when to file and who should file first.

For either a divorce or other family law case, my general feeling is that it is important to file as soon as possible. Every situation is different, and there are situations where it is a better idea to wait, but in general the best option is to file as soon as possible, or as soon as you realize you need to.

It doesn’t matter who files first, and when you file (whether it’s a divorce or paternity action), you will either be the Petitioner or the Respondent. It doesn’t matter at all which you are.

The key reason why it’s important to file as soon as you can are two-fold. First, once the Respondent is served with the paperwork you have filed, the Automatic Temporary Restraining Orders (ATROs) go into effect. They are located on the back of the Summons, and prevent either party from disposing of or acquiring property – separate property or community property -from leaving the State of California with your child (without the permission of the other party), and changing benefits or beneficiaries on accounts or insurance, like life, health, and car insurance and retirement, bank and stock accounts. The second important reason to file as soon as possible is to get the date of separation determined. I’ve already talked about the importance of the date of separation, so I won’t repeat myself. But nailing down that date is beneficial to everyone.

How to file for divorce in California

In general, filing a family law case is fairly simple. For a divorce or paternity case, the process is about the same. You need to file a Summons (different for each case), which basically just identifies you and your opponent and states that you are suing your opponent. With the Summons, you have to file a Petition (again, different for divorce and paternity), which is the ‘meat’ of the filing. The Petition specifies what’s going on and what you want, and defines the universe of options for your case.

For example, as I mentioned in an earlier post, if you want to be able to get spousal support at any time during your case, you MUST mark that box in your Petition. If you don’t, then it comes off the table completely. You need to file your Petition correctly, and there can be tricky elements, but for the most part it is fairly simple.

Finally, if you have children, you need to file the Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). This form sounds scarier than it is, as it’s simply where your child has lived for the last five years.

Of course, if you are asking for any orders, such as a custody or visitation order, child or spousal support, or anything else, you have to file other forms. But merely filing your case involves just these three forms: Summons, Petition, and UCCJEA.

Your California divorce: who should file first?

Thinking of getting a divorce in California?  A common question is whether you should go ahead and file or if there are reasons to wait for the other party to file.  Here are some considerations to think about: