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There is no required period of separation before filing for divorce in California. However, you must be a resident for six months at least prior to filing and you must have lived in the county in which you’re filing for three months. There is a six-month minimum between the time the respondent is served and the marriage is terminated. If you are filing for a legal separation, there is no time requirement for residency and no waiting period to have a final Judgment.
Divorce mediation versus the court process depends on the situation of the parties. If the parties tend to be amicable, then they may not need a divorce mediation and can just process their agreements through the court.
The mediation process here in California is intended to work for people who have extreme animosity towards each other. However, mediation can be detrimental to one party because the mediator is not necessarily a judge and may not treat the parties impartially. With the mediation process, you’re still entitled to have an attorney if you wish and work things out through that process. If you choose to file with the court in Sacramento County as well as other counties including Placer County and El Dorado, these counties all have mandatory settlement conferences before a trial for specific issues such as child custody, property division, or for the entire divorce.
To prepare for a pending divorce or separation, I would recommend that a person ensure they have copies of all their financial documents. For example copies of deeds, savings and investment account statements, and retirement account statements. Often, a spouse will try to destroy evidence or lock the other person out of having access to important documents that would be helpful in a divorce.
Knowing the financial situation will be changing, you should plan on what your budget is going to be. A consultation with the divorce attorney will help you determine possible spousal support and child support are going to be. If you are going to pay support or receive support it is important to plan how you will live. Typically, in California, we have two-income families. Changing from a two-income family to a one-income family, obviously makes it more difficult to live. The marital lifestyle is almost never met for the average person after separation and the parties no longer live together and share expenses.
Another step one should take is to stop comingling your income with your spouse and perhaps set up your own individual bank account. Additionally, if possible, discuss with your spouse what you think should happen with the children and try to lay the groundwork for some agreements about child custody, how the bills are going to be paid in the interim, and what the disposition of assets are going to be. Sometimes this helps with a spouse who has unrealistic expectations thinking they’re going to keep the house that has a large amount of equity and get paid support change their unrealistic expectations to what will really happen. The division of assets by California law is very even-keeled as far as community property goes.
These are some of the things someone can do in preparation for a divorce or separation. Additionally, if you’re seeing signs that your spouse is getting ready for divorce, then I would consult with an attorney as early as possible.
The process of obtaining a divorce in California is pretty straightforward. One spouse is a petitioner and files a petition, which is served upon the other spouse who then becomes the respondent. The respondent then files a response.
The next step involves the disclosures. Family Code Section 2100 is very specific. The law in California is very clear that spouses have a heightened fiduciary duty to each other for the community as far as the assets go. You’re required to disclose all assets. There may be an interim step in seeking custody and support but the property division is reliant on the disclosures that the parties make. If those disclosures are not accurate, then it could be very detrimental to the party that served the inaccurate documents.
The next step, which may have taken place prior to the financial disclosures, is establishing custody of the minor children. That process can be done through the courts or through private mediation where a private mental health professional meets with the children and typically does a more thorough job than the family court services. Parties always attempt to arrive at an agreement between the parties as to what child custody should be.
The court can set also support. If the parties are amicable, they could deal with an attorney to determine support. California has a guideline set forth in the family code on how to calculate support including interim spousal support. The next step is to do a final set of disclosures if they are required. However, if there is a settlement, those disclosures could be waived, and parties work out what the settlement should be or set the matter for trial if you disagree on the property division, the child custody, or the support numbers in order to obtain a judgment.
In the interim, parties can bifurcate the divorce. Bifurcation allows the parties to have a status-only divorce where they’re divorced but their property is not divided. Parties could do that for numerous reasons. However, if one party seeks a bifurcation and the other party is not in major agreement with bifurcation, there are some indemnifications that have to go along with bifurcation to guarantee that the other spouse has not lost any rights dealing with retirements or other issues.
Typically, it takes a minimum of eight months to a year to obtain a divorce. I have had cases, where we completed all the paperwork and filed with the court, was less than two months, and had the Judgment back in another month. However, the marital status cannot be terminated until six months and a day has passed after the service of the petition on the respondent in California. The longest divorce case that I handled lasted about seven years.
For more information on Separation Prior To Divorce In CA, a consultation with an experienced California Divorce Lawyer is your next best step. Get the information and legal answers you are seeking by calling (916) 685-7878 or by filling out our convenient online contact form today.
Mr. Cianchetta is an OUTSTANDING attorney. I was a little nervous about seeing an attorney for my case. Mr. Cianchetta and his staff made my wife and I feel right at ease. He took extra time explaining what to expect before, during and after our process. His advice was right on!
- Jack M.
