I JUST moved to California last month, and I’d like to file for divorce. Can I file now? To file for divorce in the State of California, the person filing (called the “Petitioner”) must first meet the jurisdictional requirements: (i) residence in the state of California from the past 6 months; and (ii) residence in the county where that person is filing (e.g., San Diego County) for the past 3 months. Residence – put simply, where the Petitioner lives – also determines which courthouse the Petition for Divorce should be filed.
“What if my husband/wife does not want to sign the divorce?” or “My husband/wife does not want to sign the divorce papers, what can I do.” California is a no-fault divorce state. A party filing for divorce does not need the consent of the other in order to file a Petition for Dissolution (Divorce) or, in some instances, to get a judgment of divorce.
What is “Service of Process?” Can I just mail the divorce papers to my ex-spouse? Service of Process is a crucial procedural step in the divorce proceedings, because the law reserves for the ex-spouse (called the “Respondent”) the right to respond and appear in court, if s/he wants to.
In proceeding in an action for divorce, there are procedural requirements dictated by law that must be followed to ensure that the other party has notice of the action (that is, that s/he is being brought to court for an action of divorce) and that s/he is given time to respond. However, there is no requirement for the other party to respond. There is no requirement that s/he sign any document at all. All that needs to happen is that s/he is properly served with process according to the rules. Note that “proper service” is defined in the Family Code and must be followed, and the validity of any Judgment for Divorce rests on the proper service of the Respondent.
“What? I have to share my retirement earnings? This is mine, I worked hard for it!” California is a community property state and so once you get married, all property acquired during marriage is community property. Separate property are “all property acquired before marriage; all gifts, bequests, devise, or descents. All property acquired or exchanged with traceable separate property; and all property acquired after separation.” However, if anything out of the community property is used towards separate property, the community might have a claim on part(s) of separate property.
“I don’t want to pay spousal support.” Whether you like it or not, spousal support will be ordered if the other party makes a request, and the court deems that the circumstances call for it. Some of the factors that the Court will look at to determine whether there is basis for support, and if so, in what amount, are – length of marriage, age of parties, if there are minor children in the marriage, income of both parties.
“Why do I need an attorney?” You don’t need an attorney. There is no requirement that you must have an attorney. However, in cases involving issues such as domestic violence, custody disputes, child support, spousal support, and division of community property assets it would be wise to seek advice from a licensed and experienced attorney so as not to waste your time and money, not to mention the court’s time and resources, especially when you have to keep going back to court because of incomplete or missing documents that could have been addressed from the very beginning by a competent and knowledgeable attorney.
Not all divorce cases are the same. It is important to be properly informed about your rights and responsibilities under California law in divorce proceedings. The wrong advice or information can and will hurt you, and waste your time and money. Consult a licensed and experienced family law attorney to help you navigate through your divorce.
Atty. Lilli Berbano Baculi is an associate attorney with Chua Tinsay & Vega, A Professional Legal Corporation (CTV) – a full service law firm with offices in San Francisco, San Diego, Sacramento and Philippines. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (619) 955-6277; (415) 495-8088; (916) 449-3923; [email protected]. For general information visit www.chuatinsayvega.com.
