Divorce pushes you into one of life’s most demanding transitions. Ending a marriage is an emotional weight you will have to face, and in doing so, the legal process brings your former partner into the role of the opposing party. As with most major life decisions, critical issues must be negotiated. These include property division, financial arrangements, and child custody, to name a few. Negotiating requires a lot of attention and emotional resilience. At the same time, you must manage the impact on your children. You must provide them with the stability they need while navigating your challenges.
The procedural demands add another layer of complexity. Drafting legal documents, attending court hearings, and negotiating settlements require precise communication and strategic decisions. There is not much room to process the emotions of marriage loss because you will be trying to balance these responsibilities with personal healing. You will need an attorney’s help through the process. The information below should help you understand the divorce process and navigate it with ease.
The Seven Steps in a Divorce Process
California is a no-fault divorce state. This means you start the process when you file for divorce, stating that irreconcilable differences have caused the marriage to fail without the need to prove misconduct by your spouse. This legal framework simplifies the process by involving less of the assigning of blame and focusing more on practical matters, specifically:
- Dividing assets
- Determining support
- Creating custody arrangements
The divorce process involves seven crucial steps, specifically:
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Filing the Divorce Petition
The divorce begins when the petitioner files a Petition for Dissolution of Marriage. This petition requires critical details, including:
- Marriage and separation dates
- Information about your children
- Child custody, child, and spousal support requests
- Community property for division and separate property
- Any associated costs related to attorney’s fees
Attorney fees can be need-based or sanction-based. Need-based fees are sought when one party is unable to afford legal representation. The court may grant these fees based on financial disparity. On the other hand, sanctions are imposed on the other party for misconduct, such as obstructing the proceedings, failing to be present in court when ordered, or violating the court order.
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Serving the Divorce Petition
After filing the petition, it has to be served to the other spouse in the divorce process. This formal notification helps the other party to be aware of the ongoing proceedings. You should follow your local court’s procedures and timelines to proceed correctly. You may also want to serve the respondent with blank copies of forms that the respondent can use to file a response.
As a petitioner, you cannot personally serve the petition. Instead, you can use a third party, a server, to deliver the petition to the other spouse. Once served, the respondent has 30 days to file a formal response with the court. The response allows them to respond to your issues and seek modifications to aspects like custody, support, or property division.
If the respondent fails to file a response within thirty days, you could ask for a default judgment of divorce. However, if the respondent files a response, both sides will proceed to further steps, including negotiation, settlement talks, or a trial.
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Submitting Financial Disclosures
Each party in a divorce submits financial disclosures, which detail your income, assets, debts, and expenses. These disclosures help determine how property, spousal, and child support will be divided.
Each spouse must complete the Income and Expenses Declaration and the Schedule of Assets and Debts. These documents must be filed with the court and with the other party. This exchange ensures that both parties are transparent and aware of the financial situation.
Financial disclosures must be accurate to prevent misunderstandings and ensure each party gets a fair share of the assets and support. Inaccurate or incomplete information may delay the process, lead to legal penalties, or produce unfavorable results.
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Requesting Temporary Orders
Both parties can request temporary court orders to address immediate concerns during the divorce process. These orders can cover:
- Child custody
- Child support
- Spousal support
- Attorney fees
- The use of shared property or finances
Divorce is hard on everyone, so the orders aim to provide stability while the divorce is going on, ensure that everyone has the necessary support to move through this reasonably painful experience, and handle critical issues ahead of a final resolution.
Orders of this kind are requested by a party who files a request with the court. The court could schedule a hearing to set the terms. These orders are temporary and will last only until the court determines long-term orders after the divorce is finalized. Sometimes, the temporary orders are modified before the final judgment, but generally, they are replaced by permanent orders when the divorce is finalized.
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Negotiations and Settlement
Often, divorce includes negotiations and settlements between both sides. The aim is to resolve the most critical issues, like property division, child custody, child support, and spousal support. These negotiations can either be between the parties themselves, with the help of their attorneys, or through mediation.
If both parties agree on the terms, attorneys for each party will prepare a stipulated or agreed-upon judgment, also called a Marital Settlement Agreement. When this is done, this document will detail the terms both parties have agreed to and submit it to the courts for approval. However, both parties may have differing views on some issues. In these cases, it is expected and perfectly acceptable for those unresolved matters to be left to the court to decide.
If the spouses fail to resolve the case through negotiations, the case will proceed to trial. A judge will resolve some of the issues during the trial. Usually, it is best to settle out of court. This generally offers the chance to speed resolution on its terms without the added expense associated with a full trial.
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The Trial Stage
If settlement talks collapse, the case goes to trial, and the judge or commissioner settles the case. During the trial, both parties present their evidence, call their witnesses, and argue their positions on important questions of property division, child custody, child support, and spousal support. The judge evaluates the evidence and applies the law in making final, binding decisions.
In California, a commissioner assumes a similar function in family law cases as a judge. While a commissioner may hear divorce matters, they are usually only available to hear cases when a judge is unavailable or has a heavy caseload. Commissioners manage the flow of cases. Their efforts help ensure the proceedings move forward efficiently. If needed, a commissioner can make any necessary decision, and the decision can be reviewed or modified by a judge.
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Appealing a Judge’s or Commissioner’s Decision
If you disagree with the outcome of a divorce trial, you can appeal. An appeal is a formal written request to a higher court to have the court review the decision. Nevertheless, an appeal is not a retrial. The appellate court will weigh whether the law was correctly applied and the trial court got the evidence right.
You must file a notice of appeal within 60 days from the judgment to bring the appeal. The trial court’s decision is then appealed at the appellate court, which decides to uphold the trial court's decision, modify it, or send the case to be reprocessed.
While an appeal allows you to appeal the decision, there is no guarantee that it will change the outcome.
Three Key Issues in Divorce Proceedings
Divorce primarily revolves around three key issues:
- Property division
- Child support
- Spousal support
Often, these matters are central to the process and demand the most attention.
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Property Division
In California, property is either community or separate, with different rules governing each. California is a community property state, so most community property assets and debts acquired while the marriage exists are treated as shared property. This includes:
- Income earned
- Real estate
- Personal property
- Debts incurred during the marriage
Community property is typically divided equally in divorce proceedings, with both parties receiving a 50/50 share.
However, separate property and debts are owned solely by one spouse. This can be property acquired before the marriage, gifts received by one spouse during the marriage, or inheritances. Generally, a spouse's property other than community property will be his/her separate property if it is kept distinct and separate from community property.
California law, however, recognizes that separate property may be partially or totally community property under certain circumstances. One of the most common cases is combining community property with separate property. Let us say one spouse uses separate funds to pay a mortgage on a house bought during the marriage, and the property would become partly community property. If separate funds are combined with joint accounts or assets, it will be difficult to distinguish the separate from the community property, leading to a potential for division.
A transmutation can also occur in which one spouse intentionally changes the status of separate property to make it community property. For instance, a spouse may gift a business or even real estate to the other and make it jointly owned. This then becomes community property.
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Child Custody and Support
Child custody is one of the most emotional and often challenging issues in a divorce. California courts tend to put the child’s best interests at the forefront when deciding who will get custody of the child, and several factors go into the court’s decision, namely, a child’s:
- Age
- Health
- Emotional bond with each parent
- The ability of each parent to give the child a stable, nurturing environment
Courts aim to create a good parenting plan for the child, offer the child a sense of security, and promote the child's emotional and physical well-being.
There are two types of child custody in California recognized by law, namely:
- Legal custody — This refers to the right of a parent to make most decisions for the child’s life, like education, health care, and religious upbringing. The courts often give parents joint legal custody, meaning both parents share responsibility for those decisions. However, in some cases, the court will grant one parent sole legal custody if it is in the child’s best interest.
- Physical custody — This custody concerns where the child lives daily. The court can order that the child live with one parent, but that parent will have sole physical custody. In cases where both parents are involved in the child's life, the courts may award joint physical custody so that the child spends more time with both parents. While this is the preferred situation, the final decision is usually based on the circumstances and what the court believes will best suit the child's needs.
Once custody is determined, child support is usually the next issue. In California, child support is based on a state-mandated formula that considers both parents' income, the percentage of time the child spends with each parent, and other related factors like medical and childcare costs.
However, in some cases, the court may deviate from the child support formula. If this happens, the court must have a legal justification for the departure and explain why it made this decision. This means that even if the amount of support differs from the standard calculation, all parties involved will understand why the court ordered this amount of support.
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Spousal Support
One of divorce's most emotionally charged areas is spousal support or alimony. This issue often results in intense feelings from both parties as they adjust to financial changes and decide who should support whom. Spousal support allows the lower-earning spouse to maintain a standard of living similar to the one enjoyed during the marriage. It also ensures that the dependent spouse is not worse off financially after the separation.
California courts do not automatically award spousal support. Instead, the court decides based on several factors and considers each spouse’s financial situation and needs. The length of the marriage plays a significant role in the decision-making process. Spousal support is limited after a shorter marriage, but longer marriages could result in longer-term or permanent support.
Often, California courts use a guideline formula to determine spousal support. This formula is based on:
- The income of both parties
- The financial needs of the requesting spouse
- Each spouse’s ability to pay
Whereas child support has a rigid formula, spousal support does not and is flexible when needed. However, the court can adjust the support order if exceptional circumstances apply, for example, in the case of complex assets or debts, including business ownership, inheritance, or digital assets. Sometimes, spouses could agree to a lump sum spousal support or transfer of a portion of the business.
The court also considers non-financial factors. For example, a spouse who has been out of the workforce for an extended period due to caregiving responsibilities or other reasons may receive support to ease their transition into the job market. The court will also look at each spouse’s earning potential and whether the recipient spouse can become self-sufficient.
Spousal support is a dynamic and negotiable issue in divorce. Although the guideline formula is structured, the court can vary it, considering unique circumstances. Factors like contribution to the household and other personal circumstances can all impact the final decision. The goal is to end up with a fair and equitable support plan so that both sides can stabilize themselves financially after the divorce.
How Prenuptial and Postnuptial Agreements Feature in Divorce Proceedings
A prenuptial agreement is an agreement between a couple before the marriage that details how assets, liabilities, and spousal support will be handled if the marriage ends. It is a very effective way to protect premarital inheritances and businesses or set spousal support terms. A prenuptial agreement in California’s community property system can separate even those assets bought after the wedding if the prenup is fair and reasonable.
A postnuptial agreement, however, is entered into after marriage. It has a similar purpose but applies to financial matters after marriage. Parties use these agreements to settle any existing disputes or divide assets acquired during the marriage. An example of when a postnup would be useful is protecting assets you started after the wedding or ensuring specific properties stay separate.
Both agreements must also be open and fair and meet standard legal requirements, including full disclosure of assets. A court may refuse to enforce an agreement if the terms are found to be one-sided or unconscionable.
Find a Divorce Attorney Near Me
Divorce can be overwhelming, but with the proper legal guidance, you can navigate it confidently. Every decision can affect your future and involve resolving financial matters or determining child custody and spousal support. Knowing what steps to take and focusing on the goal can help you take a smoother path.
Divorce is emotional, but you do not have to do it alone. If you are prepared to stand up for yourself and get a fair result, we at San Diego Family Law Attorney are here to help. We have an experienced team to guide you through this challenging period and get the best possible outcome. Call us at 619-610-7425 for more information.
