CALIFORNIA DIVORCE FAQ - FREQUENTLY ASKED QUESTIONS
“Family Code 2339:(a) Subject to subdivision (b) and to Sections 2340 to 2344, inclusive, no judgment of dissolution is final for the purpose of terminating the marriage relationship of the parties until six months have expired from the date of service of a copy of summons and petition or the date of appearance of the respondent, whichever occurs first.
(b) The court may extend the six-month period described in subdivision (a) for good cause shown.”
That means 6 months is the minimum waiting period. It can be longer. Despite many rumors and urban legends and much wishful thinking to the contrary, it CANNOT under any circumstances be shorter than 6 months.
The vast majority of completed divorces are completed within the 6-month minimum period. The vast majority of divorces that are not completed within the 6-month minimum are delayed purposefully by one or both of the parties – for a wide variety of reasons.
That will depend to a large extent on the facts of your case. You and your spouse can make it very cheap or very expensive.
If you can use NetDivorce, your total cost (excluding any court filing fees) will be $129
If you use one of the other online divorce services, fees (again excluding any court filing fees) average $250-400. If you use a lawyer in a simple uncontested divorce, the fees would generally run $600-$1000 (excluding any court filing fees), depending on how un-bundled that particular lawyer has made his or her service. If you shopped around, you could certainly find a lawyer to take $5000-6000 for an uncontested case and tell you that it was money well spent.
If your case is contested and you and your spouse are locked tight into principled or emotional disputes, lawyers are the only realistic path forward. However, those lawyers will recognize your emotional exposure and will drain you economically very quickly. You will easily spend far more than you have – as your own lawyers exploit your commitment to your position. In such cases, fees are literally unlimited.
So you can really see that fees are entirely dependent upon the facts and circumstances of your case.
Yes, but the procedure is much more difficult. If you do not know where your spouse is and cannot locate your spouse by diligent search, then obviosuly your spouse cannot be served with divorce papers in the traditional manner and is not available to sign divorce papers.
In a case where the other spouse’s location is unknown and cannot be found with diligent search, instead of serving your spouse with divorce papers or asking him or her to sign divorce papers, a Summons must be published in your local legally-adjudicated newspaper for 4 consecutive weeks. In some counties, under certain circumstances, posting your Summons in a court ordered public location for 28 consecutive days is done instead of publication. The publication (or posting) takes the place of serving your spouse with divorce papers. The idea is that such publication (or posting) will be the next best possibility of finding your spouse, though of course that never happens.
However, there is a warning about this procedure. This is an extremely difficult and time-consuming process. You must prove to a judge that you have already done everything reasonably possible to locate your spouse. The list of actions is extensive, and if you cannot afford to hire a private detective, you must perform these actions yourself. They include sending certified letters to your spouse’s last known residential AND work address, statements from your spouse’s family and any mutual friends as to your spouse’s likely whereabouts and searches through on-line services such as eVerify, peoplefinder.com, ussearch.com and publicrecordssearch.com. The standard of search required of you is high. This would not be an easy type of divorce case. The court is aware that this is an area where there is much fraud. The court will treat publication (or posting) as a last resort. Often, when we submit an Application to Publish, there will be a rejection from the court to indicate even further searches that the judge is requiring, based on the facts in your case.
NetDivorce handles publication/posting cases all the time, and our success rate is high. Our clients definitely get their divorces completed, but getting a divorce without your spouse’s knowledge or consent is not easy. You should doubt anyone who tells you that it is.
Please note that if your spouse is in the active military service of the United States, you cannot proceed on the basis that you do not know where your spouse is because the US Military Locator will be able to provide you at least a mailing address for your spouse. In other words, you cannot use the publication/posting process if your spouse is on active military service.
“Family Code 2310: Dissolution of the marriage or legal separation of the parties may be based on either of the following grounds, which shall be pleaded generally:
(a) Irreconcilable differences, which have caused the irremediable breakdown of the marriage.
(b) Permanent legal incapacity to make decisions.”
That’s it. There are no other grounds – irreconcilable differences and what used to be called incurable insanity. In the whole state each year there are probably only a very few divorce cases based upon permanent legal incapacity . While you might think that your spouse cannot make very good decisions, if you really want to base your divorce upon that permanent legal incapacity , you’ll need a lawyer and a lot of money. You’ll have to prove the mental incapacity by medical evidence.
The other ground, irreconcilable differences covers everything else – from adultery through squeezing the wrong end of the toothpaste. And you don’t have to prove anything. California has had a no-fault divorce law since the ’70’s – so the court will only be interested in misbehaviour if it impacts child custody/parenting – and again, if you and your spouse are disputing child custody, you definitely need lawyers and lots of money.
So now when you hear those breathless news reports about movie stars getting divorced and the reporter tells you excitedly that the grounds being used are irreconcilable differences, you will know that it means absolutely nothing. There is no real alternative. Everyone in California gets divorced on the basis of irreconcilable differences – you and movie stars.
The most honest answer we have to that questions is: probably not.
If you can use the Summary Dissolution procedure (see below), there is definitely no court appearance necessary by anyone to obtain the divorce. The whole thing is done just by shuffling papers. Only about one quarter of California divorcing couples can use Summary Dissolution. If you qualify (married less than 5 years, no children of the marriage, no current pregnancy, neither party owns any real estate anywhere, parties don’t own much and don’t owe much, as well as a few other qualifying issues), NetDivorce automatically uses the Summary Dissolution procedure with no court appearance.
If like most people you must use the more common Regular Dissolution procedure, then you probably, repeat, probably will not have a physical court appearance to obtain your divorce. However, the decision, no matter what anyone promises you to get you to hire them, is ALWAYS the judge’s.
Here’s the law, if you’re interested:
“Family Code 2336:. (a) No judgment of dissolution or of legal separation of the parties may be granted upon the default of one of the parties or upon a statement or finding of fact made by a referee; but the court shall, in addition to the statement or finding of the referee, require proof of the grounds alleged, and the proof, if not taken before the court, shall be by affidavit. In all cases where there are minor children of the parties, each affidavit or offer of proof shall include an estimate by the declarant or affiant of the monthly gross income of each party. If the declarant or affiant has no knowledge of the estimated monthly income of a party, the declarant or affiant shall state why he or she has no knowledge. In all cases where there is a community estate, each affidavit or offer of proof shall include an estimate of the value of the assets and the debts the declarant or affiant proposes to be distributed to each party, unless the declarant or affiant has filed, or concurrently files, a complete and accurate property declaration with the court.
(b) If the proof is by affidavit, the personal appearance of the affiant is required only when it appears to the court that any of the following circumstances exist:
(1) Reconciliation of the parties is reasonably possible.
(2) A proposed child custody order is not in the best interest of the child.
(3) A proposed child support order is less than a noncustodial parent is capable of paying.
(4) A personal appearance of a party or interested person would be in the best interests of justice.
(c) An affidavit submitted pursuant to this section shall contain a stipulation by the affiant that the affiant understands that proof will be by affidavit and that the affiant will not appear before the court unless so ordered by the court.”
What does that mean? It means that you won’t have to appear unless the judge says you have to appear, just like we said above. And the judge can order you to appear if s/he is suspicious about your child custody, support or property division proposals, existence and division of retirement plans or anything else (“in the best interests of justice”).
So you can see from the above that if your divorce proposals are fair and reasonable it is EXTREMELY unlikely that you will have to go to court. However, you should not listen to anyone who guarantees you that you will not have to go to court. No one can make such a guarantee.
NetDivorce tells you truthfully that you will probably not have to go to a court hearing. NetDivorce is aware of some online outfits that claim to guarantee you that you won’t have to attend a hearing. They’ll be correct over 95% of the time. So it’s a small risk on their part. But now you’ve seen the law. No one can make such a valid guarantee. So why would someone claim that they do? – to justify the $150-300 difference between NetDivorce fees and their fees. Don’t be fooled. NetDivorce uses the same laws as they do, and NetDivorce always automatically attempts to keep you out of court – whenever that is possible.
Firstly, the word “dissolution” means divorce. A dissolution is a divorce. A divorce is a dissolution. There is no difference. Back in the ’70’s our alleged protectors in Sacramento thought that we’d get hurt by the big bad D word so they made up a big stupid D word instead. Now they’ve figured out that it made no difference but they’re stuck after all this time with their silly word. It is interesting to notice that the Divorce word is now slowly making its way back into California divorce forms.
A Summary Dissolution is a simpler divorce process that can be used by those couples who have been married less than 5 years (from date of marriage to date of separation), have no children of the marriage, no real estate, the wife is not now pregnant and the parties don’t own very much or owe very much.
Both parties must sign to apply for the Summary Dissolution. There is only one filing – a set of reasonably extensive documents signed by both parties at the beginning and filed at court to start the 6-month waiting period. That filing includes a single document that will be mailed to you by the court, to tell you that you’re divorced, after 6 months have passed from the filing.
NetDivorce always uses Summary Dissolution whenever it is possible under the facts of your case, as determined by your answers in our on-line interview. Only about 25% of California divorces are Summary Dissolutions.
A California Regular Dissolution is any divorce process that is not a Summary Dissolution. 75% of California divorces are Regular Dissolutions.
Regular Dissolution is the more traditional divorce process that most people think of – though USUALLY there is no personal appearance required at court these days. Papers are prepared and filed at court by one party, the spouse that takes primary control of the divorce, and served (delivered) in a very specific way upon the other party. Then, in a non-military case, you must wait 31 days before the originating party, the Petitioner, can proceed to file the Judgment batch of papers.
In a Regular Dissolution, there are three batches of papers, two to be filed at court and one to be served on your spouse.
The Regular Dissolution process, just like the Summary Dissolution process, takes a minimum of 6 months to complete.
Compared to other states, California has built a very complex and paper-intensive Regular Dissolution process. The main legal thrust in California divorce since the ’90’s has been disclosure between the parties as to their respective incomes and property/debts. California divorce courts, particularly in a Regular Dissolution, want to make sure that neither of you will pull the wool over the other’s eyes about income, property or debt.
Once again, it just depends on your case.
If you and your spouse will be arguing over anything, no matter how small or unimportant, you should hire a lawyer. The system is designed to chew you up if you go into a contested case without a lawyer. You and your spouse would both make mistakes until one of you breaks down and hires a lawyer. The spouse who hires the lawyer first will “win” if the other spouse does not also hire a lawyer. If you make mistakes without a lawyer (you will), then when you hire a lawyer, you will have to go back, at increased cost, to correct those mistakes.
If your spouse has a lawyer, you need one too, no matter what. Regardless of what is involved and whether or not you’re arguing about anything, you’d be extremely foolish to proceed in any case, let alone a divorce case, without a lawyer when the other side has one. You will find that your spouse’s lawyer will tell you not to worry. S/he will look after you as well as your spouse. Forget it. S/he is looking for an easy $5000-10000. A lawyer is duty bound to look after his or her client only, and could actually lose his or her license if s/he can be shown to have acted in any way that is known not to be in the interests of his or her client.
Occasionally, there will be an uncontested divorce case where the parties are completely in agreement and capable of making their own decisions, but they should both hire lawyers. These are either cases in which there is a tremendous amount of money or assets involved or where there are complex legal and/or tax issues that require specialist input. Examples of such cases would be where there is going to be an educational trust established for children, where there is a special-needs child who will need continuing care and support, where the divorce settlement has to dispose of and subsequently control an ongoing family business or where there is a requirement for some tax or other specialist legal or financial advice. Obviously this is not an exhaustive list. If you have a case that you suspect is within this category for some reason, then it probably is.
Don’t use NetDivorce or any online service in a case like this. Go directly to a lawyer – you need a lawyer in such a case and you’ll be glad you hired one. In fact, in many cases that require specialist input, your lawyer will actually have to hire a tax or trust expert.
OK, now the good news. California has had a no-fault divorce law since the early ’70’s. You don’t have to prove that the marriage has broken down or how. If you say you want a divorce, you get one. The vast majority of divorcing people do not need a lawyer because they don’t have a tremendous amount of money or assets; they are mature and reasonable and not fighting over anything; and they are competent and capable of making decisions about what happens to their children, their assets and their debts. Lawyers hate that fact and would bluster and bamboozle (to confuse you and cause doubt) if you asked them, but the fact is undeniably true.
If you fall into this largest category of divorcing people, NetDivorce was made for you.
If any of the following applies to your case, you should definitely hire a lawyer instead of using NetDivorce (or any other online service or other non-lawyer) to obtain your divorce. Please bear in mind that NetDivorce cannot tell in advance if any of these factors exist in your case. Only you can determine if any of these situations apply to you. This is not an exhaustive list:
1. You and your spouse will dispute any important issue in your case, including the division of a pension plan.
2. Your marital estate is very large – lots of money and/or assets.
3. You have a disabled or special needs child of the marriage who will need continuing, perhaps lifetime, care and support.
4. You will be dividing a continuing family business as part of the divorce. This does not apply to a small business run by one of you when both of you absolutely agree that all of the assets and income from that business will be awarded to that one spouse.
5. Some aspect of your case requires specialist tax or trust advice.
6. Your spouse is in the active military service of the United States and s/he will not sign divorce papers and cooperate fully with you during the divorce process.
7.There are allegations of domestic or child abuse in your marriage and you wish to keep your physical residential address (or that of minor children of the marriage) confidential and unknown to your spouse.
8.You are concerned about the abduction of any minor child of this marriage or you are or will be requesting supervised visitation – where you want your spouse to have contact with any minor child of the marriage only while supervised by another adult.
It’s incredible that after so many decades, this scam still exists and that there are people so intent on avoiding the 6-month waiting period that they buy into it, part with money. never get divorced and have only succeeded in adding to the 6-month waiting period they were trying to avoid.
The attraction of Mexican, Dominican and other foreign divorces is that you obtain a piece of paper that says you’re divorced in a very short time – often 2 weeks. However, unless one of you genuinely resides in Mexico or the DR, forget it. And by the way, the old trick of renting a hotel room in Tijuana for two weeks or going to the DR for a weekend and signing an intent to reside simply don’t work. They never did. See why below.
The origin of this urban legend is that back in the 1930’s and 1940’s certain movie stars who lived in California went to Tijuana and Vegas to obtain divorces there in order to avoid what was then the one-year delay in California. And it used to be legal to do so. Many wealthy people did it. There was no law against it because the legislature hadn’t yet figured out that this very desirable situation would grow to represent a big income-loss to the state of California – not to mention the difficulties people in California experienced in trying to enforce incomplete or idiotic court judgments from a Mexican court.
Starting in 1969, this loophole was well and truly closed. However, some special folks still think that they can obtain foreign divorces without residing in those foreign jurisdictions (particularly the DR – there’s been a big push on Dominican divorce on the Internet). And as long as such fools exist, there will be scammers taking advantage of them. All those gullible people will get is an expensive piece of paper. But they are still married! When they go to get remarried and are asked for proof of termination of prior marriages or when they go in years to come to claim the life insurance or Social Security survivor’s benefits of the person they thought was their spouse, they will be asked to produce proof of termination of all prior marriages. When this happens, they will be shown easily not to be the spouse of the person they thought was their spouse. Life insurance companies and the Social Security Administration are well aware of this particular divorce fraud.
So what does the law say? Remarkably, the statute for once is simple.
“Family Code 2091: A divorce obtained in another jurisdiction shall be of no force or effect in this state if both parties to the marriage were domiciled in this state at the time the proceeding for the divorce was commenced.”
Also: “Family Code 2092: Proof that a person hereafter obtaining a divorce from the bonds of matrimony in another jurisdiction was (a) domiciled in this state within 12 months before the commencement of the proceeding therefor, and resumed residence in this state within 18 months after the date of the person’s departure therefrom, or (b) at all times after the person’s departure from this state and until the person’s return maintained a place of residence within this state, shall be prima facie evidence that the person was domiciled in this state when the divorce proceeding was commenced.”
So you can see that it is Family Code 2092 that prevents the Tijuana hotel room scam and the weekend visit to the DR from establishing domicile in either place.
So again, if your spouse resides legitimately (and hasn’t resided in California for 12 months before and doesn’t return to California for 18 months after) in Mexico, the Dominican Republic, Vanuatu, New Hampshire, Nevada, Oklahoma, etc. at the time your divorce case is filed, you have a choice. You can get divorced in California – based upon your domicile here – or wherever your spouse is domiciled. You may have difficulties enforcing the actual terms of your foreign divorce (and would probably have to get child custody and support orders here in California anyway for any child domiciled here) but you could get a legal divorce in that foreign jurisdiction. If it happens to be the Dominican Republic where your spouse resides legitimately, then you’ve hit the jackpot. But if you and your spouse both live in California, California is the only place in the world where you can get a legal divorce.
One more bit of the overall foreign divorce fraud has to be cleared up. Scammers (particularly DR scammers) will tell you that local laws in all 50 states require “full faith and credit” be given to the acts and orders of “sister states.” And that’s true. You wouldn’t want New Jersey to get into a snit for some reason and not honor your California divorce when you go to live there. Of course not. So all states do have such laws. California does and here it is:
“Family Code 2093: The application of this chapter is limited by the requirement of the Constitution of the United States that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.”
Clearly ‘state’ in this California law means ‘state of the union.’ The Dominican Republic and Mexico do not acquire any rights as “states” under the US Constitution! You can see that it is completely bogus for foreign divorce scammers to claim that their countries acquire ‘sister state’ recognition under California law. New Jersey and Minnesota do, but Mexico and the DR do not.
Unfortunately, foreign divorce fraud also occurs because there are similar ‘sister state’ provisions in international law under which the Federal government of the United States has agreed to give full force and effect to the acts and orders of other ‘states,’ as in foreign countries. You wouldn’t want to live in and get divorced in England and then become un-divorced when you step off the plane in the US.
What the scammers don’t want you to know, if they even know it themselves, is that under the Constitution of the United State, any power that is not reserved to the Federal government devolves upon the state, and the power to make divorce law is not reserved to the Federal government. So when you get off the plane from England, it is not that the US government is recognizing your divorce (though it would), but instead it is the state in which you go to reside that will recognize your divorce. If that state is California, the circumstances under which it will recognize your English or Dominican divorce or any other divorce are laid out above in Family Code 2091 and 2092.
Again, if you both reside in California, you can’t get a legal divorce in England, Iceland or the DR.
“Family Code 2320: A judgment of dissolution of marriage may not be entered unless one of the parties to the marriage has been a resident of this state for six months and of the county in which the proceeding is filed for three months next preceding the filing of the petition.”
The point here is that it must be the same spouse that satisfies both the 6-month residency requirement in the state and the 3-month residency requirement in the county in which the divorce is filed.
You should also be aware that there are special residency rules for military spouses. The general rule is that a person on active military duty does not lose his or her residence in California or the county in which he or she resided only by being outside of the state on active duty orders. Spouses should consult the military spouse’s legal officer for details or advice before proceeding with a California divorce on the basis of the military spouse’s residence in California if that military spouse will not be physically present in California, by virtue of active duty orders, at the time of the filing of the divorce case. Of course, if you can proceed on the basis of the non-military spouse’s residence, then you would not need any such advice.