Los Angeles Divorce: The Basics
1. What does "dissolution of marriage" mean?
In California, marital dissolution is the legal term for a
divorce. There is no legal difference in the use of the term "dissolution"
in this state. In legal documents here, you will see the term "marital
dissolution" instead of "divorce."
2. Where do I file?
In most instances, California has a residency requirement. It only applies
to marital dissolutions and does not apply to
legal separation or nullity of marriage cases. Either you or your spouse must have lived
in California for the last 6 months. You must have also lived in the county
where you intend to file for a minimum of 3 months. However, even if you
do not meet the residency requirements, you can still file for a legal
separation, and then once you meet the residency requirements you will
be able to file an "amended" petition to ask the court for a
divorce in Los Angeles.
3. Is there a residency requirement to dissolve my domestic partnership?
No. As of January 1, 2005, if you are involved in a domestic partnership
that was registered with the California Secretary of State, there is no
residency requirement because you consented to California jurisdiction
to dissolve your partnership at the time of registration with the state.
An exception would apply if you registered your partnership outside of
the state of California; you should speak to an attorney as it's likely
you will have to meet state residency requirements to file for dissolution here.
4. What are the "grounds" for divorce?
When getting started with your divorce, you should understand the legal
grounds, or reasons, permitted to end your marriage or registered domestic
partnership in California.
A judgment of dissolution of marriage or legal separation is generally
going to be granted on the grounds of (1) irreconcilable differences or
(2) incurable insanity. A judgment of nullity proceeding may only be granted
when a marriage is determined to be void or voidable by California law.
In addition, you do not need the consent of your spouse or registered domestic
partner to get a divorce, legal separation, or annulment. If your spouse
or registered domestic partner does not agree to a divorce, you can still
go ahead with the divorce case, and obtain what is typically called a
"default judgment" against the other spouse or registered domestic partner.
5. What is a pleading?
The legal term "pleading" typically refers to a petition, complaint,
application, objection, answer, response, notice, request for orders,
statement of interest, report, or account filed in proceedings under the
Family Code in California.
6. What is the difference between filing an "amended pleading"
or "amendment to a pleading?"
If you are filing an "amended pleading," it generally refers
to restating or replacing the pleading it amends. In comparison, an "amendment
to a pleading" means a pleading that modifies another pleading and
declares facts or requests for relief that are substantially different
from the facts claimed or the relief requested in the modified pleading.
An amendment to a pleading does not restate or replace the modified pleading
but should be read together with that pleading.
When in doubt —you should make sure you are consulting with an attorney
before you file any amended pleading or amendment to a pleading with the court.
7. What is service of process?
When you are trying to learn about the basics of divorce, one of the complicated
legal procedures to understand includes the Service of Process. It means
that parties to a family law case must file a form with the court, a form
that proves that the other party received the petition or received the
response to the petition. This form is the "Proof of Service".
In California, to begin your divorce you are going to have to serve your
spouse or domestic partner with the Summons, and a Proof of Service must
be filed within very specific time limits. Service of process is essential
to starting your divorce or legal separation and the court cannot "act"
in your case if the other party is not given appropriate notice.
8. Who can serve my summons and petition?
In California, after filing for divorce a summons can be served by any
person who is at least 18 years old and who is NOT a party in the case.
If you are the petitioner (spouse), you CANNOT serve the documents on
your spouse. This is according to the California Code of Civil Procedure 414.10.
9. What are family law restraining orders?
These restraining orders can apply when you're filing a petition for
divorce, legal separation, or annulment in California. These orders create rules on
child custody and handling of
property, rules that both parties must follow.
According to these rules, the petitioner (the spouse who first files the
divorce papers) and the other spouse or domestic partner:
- Cannot take your minor child out of state with the other parent's written
consent, or a court order;
- Cannot take out, cancel, transfer, modify, etc. the beneficiaries on any
type of insurance covering the parties and their children;
Cannot hide, dispose, sell, etc. any separate, quasi-community, or
community property without a court order or the other party's written consent, or unless
it's for normal business or life necessities;
- Cannot apply for a replacement or new passport for their minor child apart
from written consent from the other party or the court;
- Must give notice of at least five business days before you make an "extraordinary
expenditure", though you are free to use any type of property to
pay your legal fees in a divorce.
In California, the spouse who files the protective order is immediately
required to comply with the orders once he or she files the petition.
However, the other spouse is subject to the orders starting the moment
he or she is served. If either party fails to live up to the terms set
forth in the restraining orders, then they will be subject to a contempt
of court proceeding.
10. What does "venue" mean?
The decision on where to file your divorce is typically referred to as
"venue." A petition for dissolution of marriage should be filed
in a county in which either spouse has been a resident for 3 months before
the petition was filed and a resident of the state of California for 6
months before the filing of the petition.
A petition for legal separation or for an annulment can be filed in a county
where either spouse resides at the time of filing the petition. If you
are responding to a petition and have an issue regarding where the petition
was filed, you should
contact one of our
divorce attorneys to discuss the possibility of filing a motion to quash the proceeding
on your behalf.
11. What should I bring to my initial consultation with an attorney?
Castellanos & Associates, APLC provides a
free initial consultation. If you are considering divorce, you should read our information about
how to prepare for your consultation with a divorce lawyer. If you have copies of any pleadings and/or motion
paperwork, or a proposed settlement in a pending divorce case, then you
should bring those documents with you to the consultation.