Law Offices of Anne Fokstuen


Family Law Today


Getting Divorced, Where to Begin - A Roadmap

As the new year enters, and the old one recedes in the rear view mirror of life, many couples who have papered over their differences during the two month holiday season, are ready to finally end their marriage or committed partnership.  Divorce is not an easy process, it's time consuming and can be challenging.  It's important to remember that though the process itself will not make you happy, the end result will leave you in a position to be happier and make better decisions about your life going forward. 

From the time you serve your spouse with divorce papers to the final divorce is a minimum of six months and one day.  If you are moving to California to get a divorce, then you must have lived in the state for a minimum of six months, with three of those in the county in which you are filing for divorce.  If you are new to California and wish to file for divorce but have only resided here for a period of time less than three months, then you file a petition for separation, and after you've been in CA for six months, you file a amended petition for divorce. 

You begin a divorce by consulting an attorney and then filing a Petition for Dissolution of A Marriage or Registered Domestic Partnership.  The actual physical petition must be served with the Court, that is what starts the ball rolling, and also your spouse.  Most attorneys use process servers to serve the papers to the Court and your spouse.  This minimizes the risk for any unpleasant scenes with your spouse, and expedites the filing with the court.  

Once the initial Petition for Dissolution is filed, then you can decide whether you want to proceed with the divorced through the courts, or to mediate it.  There are advantages to both options, butmediated divorce will only work if both spouses are willing and able to cooperate throughout the process.  If you and your spouse are unable to spend time together in the same room engaged in a civil, if heated, discussion, then a mediated divorce is not for you.  If you're doing a mediated divorce then you will be using a attorney who represents both of you, and who cannot previously have represented either one of you individually. 

As your Petition for Dissolution moves through the Courts you will, with the help of your attorney, file a Declaration that will present your reasons for wanting a divorce to the court.  You will also begin to assemble a list of all income, all expenses, all assets, and all debts that are yours.  Courts take this disclosure seriously and there are significant penalties for Petitioners that try to hide their assets or income.  Depending on your income and estate this part of the proceedings can be quite time consuming.  

California is a community property state which means that any income acquired during the marriage, unless expressly set aside in a valid prenuptial agreement, and any assets acquired with that income, is the property of the marital community, meaning that both spouses have a 50% interest in that income or asset.  Many assets will have a mixed characterstic, meaning that some part is community property and the rest is individual property.  Deciding what belongs to whom is primarily the Courts job, but through your attorney you will be actively involved in presenting evidence as to your ownership claims.  

Custody of children is also decided by the Court.  Depending on the nature of the relationship between you and your spouse, the Court will issue a Custody Order that sets visitation and physical and legal custody requirements.  The Courts will also determine spousal and child support schedules according to the requirements of your situation.  

The final Judgement of Dissolution will split all the marital assets, and establish a custody and child and spousal support order.  If during the process leading up to this, one side is not cooperating fully, you can file a Request For Order with the Court, to compel the other side, and if they do not comply with the Court Order, you can file a Contempt Motion which compels them and potentially awards you legal fees associated with the filing of the Contempt Motion.

Anne Fokstuen