DISSOLUTION

 

When do I file?

When a relationship breaks down, the emotional impact is significant. Arguably, the break down of the marriage is the most painful type. Often times this pain creates a lot of resentment and spite. The divorce will not help get rid of that pain. Only time will bring peace and healing. Do not rush the process, because there are no short cuts for the emotions.

 

Does it matter who files for dissolution?

No. California is a no fault jurisdiction, which means that the marriage can be dissolved on the gourds of irreconcilable differences or incurable insanity.

 

When can I void/nullify my marriage?

The following are considered voidable marriages in California:

  1. Incest
  2. Bigamy
  3. Minority (the petitioner was under 18 years old)
  4. Unsound Mind
  5. Fraud
  6. Force
  7. Physical Incapacity

 

What if my spouse does not want a divorce?

You can still file for dissolution and get divorced. If your spouse does not file a response after a valid service then the divorce may be taken by default. Because California is a no fault state, there is also little chance of blocking a divorce. When the court finds that irreconcilable differences have led to the irremediable breakdown of the marriage, the court must dissolve the marriage.

 

In what court do file?

In order to file Petitioner for Dissolution in the State of California, a party has to be a resident of the State of California for 6 months prior to the filing of the Petition, and in a county where you are filing, for 3 months.

You file a dissolution or a legal separation action in a Family Court in a County of your residence. Visit the court’s website link to determine in which court to file in San Diego County: http://www.sdcourt.ca.gov/portal/page?_pageid=55,1555635&_dad=portal&_schema=PORTAL

The Superior Court has exclusive subject matter jurisdiction in marital actions, including exclusive authority to adjudicate issues of marital status, child custody, child support, spousal support, division of property and attorney fees and costs.

Judgment for dissolution terminates the marriage and restores the parties to the status of unmarried persons, while legal separation does not.

What is the difference between dissolution and legal separation?

A judgment of dissolution terminates the marriage and restores the parties to the status of unmarried persons. If the parties choose legal separation, it will separate their lives formally and fully, but they will remain legally married, whether for religious or other personal purposes.

 

What if I want to change the information on my Petition?

Before response is filed Petitioner can amend the Petition once without court’s permission (without leave of court). Once the response is filed, either court’s permission or the other party’s agreement is required to amend the Petition and/or Response.

 

When will my divorce be final?

Statutorily, the divorce cannot be granted in less than 180 days from the date the Respondent was served or appeared. It can take longer if the dissolution is contested.

 

What is an uncontested dissolution?

If both spouses agree on the issues and the divorce is uncontested, the paperwork can be filed fairly quickly. In this situation the client communicates the agreement to his/her attorney. The attorney drafts the paperwork, and after both parties sign it, the paperwork is being sent to court for processing.

 

What is the process for a contested dissolution?

  1. The dissolution process gets started by one of the spouses filing a Petition, summons, income and expense declaration and schedule of assets and debts. The party who files a Petition is called a Petitioner. The party who files a Response is called Respondent. The summons is the document that puts the other party on notice that a dissolution proceeding has been commenced.
  2. Once the moving papers have been filed they must be served on the opposing party.
  3. After the service of the moving papers, the responding party has 30 days to respond.
  4. Discovery. While most of the information comes to the attorney from the client, there are also formal methods of discovery of gathering information from the opposing party. This formal discovery process can be oral or written.
  5. Temporary relief.  Usually, the completion of the discovery process takes a substantial amount of time. In a lot of circumstances one or both parties might have an immediate need for court orders. The examples include but are not limited to: restraining orders, child visitation, child support, spousal support. Such relief is obtained through a court hearing after filing a document “order to show cause.”
  6. Trial. In most instances the cases get resolved without going to trial. The policy is to resolve family law matters outside of the courtroom due to the shortage of the courtrooms and the cost of the legal fees.

 

If I was married according to the law of a different country, and no marriage license was ever recorded. Can I get divorced in California?

If the marriage was legal and valid where it took place, it is valid in California. If California court has jurisdiction over your case, then the divorce will take place according to California Law.

 

Can our former mediator represent me or my spouse?

If you shared personal information during consultation with the Mediator, the latter cannot represent your spouse. You need to consult an attorney and bring this up with the judge.

 

What if I am unhappy with the orders of the Court?

There are always two sides in a dispute during the dissolution proceedings. The role of a family law attorney is complex. On the one hand the attorney’s goal is to resolve the dispute as quickly and as painlessly for the client as possible. On the other hand the attorney must protect the client from being taken advantage of. Ultimately, the attorney has one goal – to protect the rights of his or her client.

 

In California, Family Code, written by California Legislature governs marital dissolutions. This set of rules applies to the facts of every case. Sometimes there may be situations when the law may appear to work an injustice to your best interests, and there is also a possibility that the results cannot be explained other than to say “that is the law.”  For this reason it is always recommended to try to reach an agreement with the other side first before litigating the case in court. Litigation if very often financially and emotionally draining.

 

FINANCIAL CONSIDERATIONS

 

How much will it cost to get a divorce?

There are two aspects to the cost of the divorce: costs and attorney fees. The costs of the divorce generally include the cost of filing charged by the court, costs paid to the process server to serve the pleadings on the opposite side; travel/parking costs; real estate appraiser costs. If the case goes to trial, there may be additional costs in connection with expert witnesses, accountant, and such.

 

Attorney fees are fees that are paid to the attorney for the time attorney spends to do the work on your case. During the dissolution process a mindset of the spouses is often the most significant factor of the entire case. If one or both spouses have resentment and/or hostility toward each other, any potential for efficiency of resolving the case will be compromised. Even if the attorney puts a lot of effort to maintain control of the case the effort is usually succumbs to the client’s hostility. From this two things are certain to follow: first, the case will be longer to conclude; second the attorney fees are going to skyrocket, because more attorney time will be necessary.

It is always recommended to try to reach an agreement with the other side first before litigating the case in court. Litigation if very often financially and emotionally draining.

 

 

What can be done to keep the fees down?

A big drain of the finances in the dissolution proceeding is attorney fees. It is possible to keep them down. The key is good faith attempts to work on a settlement with the other side and listen to your attorney’s advise.

 

The more amicable the conduct between the spouses the more likely the matter can be resolved quickly and cost efficiently. The less time attorney spends on the case, the less time he/she has to bill on the case.

 

It is required by law that the spouses act in good faith and fairly toward each other. It is much cheaper and easier to follow the law in bringing the matter to a swift resolution.