Frequently Asked Questions
The procedure for obtaining a judgment for dissolution of marriage (divorce) and a judgment for legal separation are similar, in that with both cases the court will rule on issues such as custody and visitation, child and spousal support, and property division. However, the major difference between these legal options is that a Judgment for Dissolution will terminate the marital relationship. In this situation, both individuals are categorized as single for legal and tax purposes, which allows the freedom to remarry. Conversely, after obtaining a judgment for legal separation, both parties are still considered to be in a marriage or domestic partnership, and are thus unable to marry or enter a partnership with another individual.
There are many reasons for which an individual may decide to petition the court to obtain a judgment for legal separation, as opposed to a judgment for dissolution of marriage. Legal separations may be requested:
- When a party is unsure that the marital bond is broken, yet wants to resolve key issues pertaining to child custody, support and property division
- If religious concerns create an objection to divorce
- While parties are in the process of entering a judgment for dissolution of marriage, for instance during the state mandated waiting period of six months
- To maintain insurance coverage in cases where a spouse may not independently qualify for health insurance
- For tax purposes, Social Security and pension benefits
A judgment for annulment occurs when a court declares that a marriage or domestic partnership is not legally valid, and thus never took place. When filing for a judgment of dissolution or legal separation there is no need to show “grounds” or “fault;” however, when requesting an annulment, the petitioning individual must “prove” his or her case to the judge. Furthermore, the responding spouse has the opportunity to contest the annulment.
Any marriage or domestic partnership that is incestuous or bigamous in nature is never valid. Additionally, by court order, a marriage or partnership may be “void” in cases containing:
- Force, fraud or incapacity
- A spouse or partner that was too young to legally marry or enter into a domestic partnership
- A spouse or partner that was already married or in a registered domestic partnership
The state of California was the first state to implement the concept of “no fault” divorce. In such a state, dissolution of marriage (divorce) can be granted if the court finds there to be irreconcilable differences leading to an irrevocable breakdown of the marriage. Thus, if one party wishes to terminate the marriage, he or she may do so, regardless of disagreement by the other spouse. In cases where one party files for a legal separation and the other party files for a dissolution, the petition for dissolution will take precedence.
In the state of California, to file for a petition for dissolution, at least one spouse must have lived within the state for six months prior to filing the petition for dissolution, and within the county with which the petition is filed, for at least three months prior to filing the petition.
Once the court grants a judgment for dissolution, the marriage is terminated and both individuals are free to remarry. However, the process to file a judgment for dissolution includes a statutory six-month waiting period, which begins from the date the responding spouse is served with the summons and petition for dissolution. Divorce will not automatically be finalized at the end of the six-month period, as issues related to custody, visitations, support and property division may take longer than six months to be resolved.
Another option, while in the process of filing for a judgment for dissolution, is to file a motion for bifurcation. This proceeding will allow the court to retain jurisdiction or power over issues of the marriage, but will return you and your spouse to the status of an unmarried individual. This motion is related only to a status judgment, but may be useful in cases where a party would like to remarry or legally separate for tax purposes prior to the end of the statutory six-month waiting period.
In order to best protect your interests, it is recommended that an attorney be consulted for family law cases. Especially, if you have children, have been married over ten years, have real estate or pension plans, require spousal support, or know that your spouse may request spousal support. Additionally, if your spouse provides you with a settlement agreement that appears to have an equal distribution of assets, it would be to your benefit to consult an attorney prior to signing any agreements or similar documents.
If you are concerned about attorney fees, it is best to find an attorney that is settlement oriented. At the Law Offices of Indu Srivastav, APLC, if it is necessary to take your case to court, we will stand by you throughout the process. However, the Law Offices of Indu Srivastav, APLC, are settlement oriented and will thus aim to keep your legal fees reasonable, by first working with you and your spouse to reach a fair and uncontested agreement.
The dissolution process begins when one party, the petitioner, files a summons and petition for dissolution with the superior. A conformed (file-stamped by the court) copy of both the summons and petition is served to the other party, the respondent, either by personal service or via notice and acknowledgment. In rare cases, the court may grant leave to serve the summons and petition for dissolution via publication.
Immediately after the petition has been filed and served, “automatic temporary restraining orders” (ATROs) take effect, which restrains either party from:
- Removing minor children of the parties from California without the prior written consent of the other party or prior written order by the court
- Cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries or benefits of any insurance or other coverage, including: life, health, automobile, and disability for either party and their child/children
- Transferring, encumbering, hypothecating, concealing, or disposing of any property, either real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order by the court; except in the usual course of business or for the necessities of life
- Creating a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the disposition of property which is subject to the transfer, without the written consent of the other party or an order by the court. Prior to the revocation of a nonprobate transfer taking affect, or a right of survivorship to property being eliminated, a notice of the change must be filed and served on the other party.
Once the petition for dissolution has been filed and served, the responding spouse has a 30-day period in which to file and serve a response. For cases in which both parties reach a complete resolution on all issues, such as custody, visitation, child support, spousal support and property division, an attorney will prepare a stipulated judgment incorporating the agreement, and the divorce will be finalized once the court grants a judgment for dissolution.
In cases where the parties do not reach a resolution on any or all issues, one or both sides may file an Order to Show Cause (OSC) to obtain certain interim orders. Furthermore, if children are involved, the attorney will generally file an OSC enabling the court to schedule an early hearing on issues related to custody, support or retraining orders. If an OSC related to custody and visitation is filed on your behalf, you must attend the court-ordered mediation, within which any agreements made between the parties are used as a basis for the court’s order on those issues.
In cases of complex dissolution proceedings, the attorney will commence the discovery process to gain information regarding the assets, debts and income of the other party. In addition to the declaration of disclosures, the attorney may then serve the other side with Form Interrogatories or Special interrogatories and request for production of documents. Once the discovery process is complete, the court will move to set a trial date.
During the course of the trial, the court will hear evidence from both sides and make findings and orders based on the evidence provided. The court will then confirm separate property and divide community property by ruling on issues such as accounting practices and commingling. Once cash-flow from businesses or self-employed individuals is determined, the court will set the specifics of support. Following this, the court will determine reimbursement and credit issues, attorney’s fees, payment of bills and other similar issues.
After the trial is completed, one of the attorneys will prepare the judgment for dissolution as based upon the court’s rulings.
Prior to the filing of dissolution, it would be useful to gather as much information as possible regarding separate and community assets and debts.
Ten tips to help prepare you for dissolution:
- Mail — Make copies of all mail being sent your home, as this will assist your attorney in the discovery process if he or she has specific names and addresses of insurance companies, bank accounts, credit cards, loan applications and investment vehicles.
- Family finances — Make copies of all monthly bank statements, credit card statements, loan documents and property assessments. Also, review and copy all recent tax returns that have been filed by both you and your spouse.
- Assets — Prepare a complete listing of all assets in your name, the name of your spouse, and both your names.
- Inheritance — Keep all assets acquired as an inheritance separate from other assets.
- Debts — Prepare a complete list of all liabilities and when they were incurred, and avoid making large purchases.
- Estate planning — Make copies of all wills, trusts, insurance policies and similar estate planning documents.
- Business interests — If your spouse is self-employed, become familiar with financial information regarding the business, including bank accounts, loan applications, corporate tax returns and financial statements.
- Compensation and pension plan — If your spouse is employed, make copies of paycheck stubs and information related to pension plans, including plan booklets and contribution statements.
- Do not sign anything — During this time period, it is advisable not to sign any deeds or documents that appear questionable. Also, keep copies of any documents you choose to sign.
- Do not move out of the family residence— It is advisable to talk to your attorney before moving out of your family residence.
If you have been served with a petition, it is advisable to seek the assistance of an attorney immediately. You will have 30 days, from the date served, to file a response; and, if you miss the deadline, by default your spouse may proceed. This would mean that the court will make decisions regarding custody, visitation, support and property without your input. Additionally, once served, do not sign any documents your spouse may ask you to sign.
Immediately begin making a record of all community assets and debts, and start taking steps to protect your finances. Do not hesitate to make a video tape of all property both in the family residence and at other locations such as storage.
If you have children:
- Keep a journal — Keep accounts of all time spent with the children or any other information relevant to the case.
- Remain in the family residence — If safe, remain in the family residence, as this will impact custody and visitation rulings. However, if your spouse threatens to harm you, advise your attorney as soon as possible, as he or she can request the court to order temporary exclusive use of the family residence.
- Do not allow your spouse to take the children away from you for any length of time — Make sure to continue spending time with children and maintaining as normal a schedule as possible.
The Law Offices of Indu Srivastav, APLC, handles all consultations on a personal and professional level. We are a committed and dedicated team, assisting you throughout your case. We look forward to meeting with you, and helping with your new beginning.
At the Law Offices of Indu Srivastav, APLC, we take each case very seriously and will begin working on your case immediately. Documents that will be pertinent to helping your case include:
- Paycheck stubs — Both your pay check stubs and your spouse’s pay check stubs (if you have access to these records) for the past three months.
- Tax returns — Both federal and state tax returns for the past three years.
- Real estate information — Make a complete listing of real estate you and/or your spouse own. Also, copies of any deeds signed, appraisals received, and any loan applications.
- Personal property — Develop an inventory of all your personal property.
- Asset inventory Create a listing of all bank accounts, brokerage accounts, savings accounts and stock accounts owned by both you and your spouse.
- Debts — Make a list of all credit card or personal debts.
- Insurance policies — Make a list of all insurance policies pertaining to you, your spouse, and your children.
- Pensions, retirement plans and investments — Make copies of all pension, retirement plans, and investments involving both you and/or your spouse.
- Agreements — Make a copy of any written agreements entered into with your spouse.
- Court documents — Bring any related court documents to your second meeting.