Typically, the initial step in most divorce procedures is for one spouse to move away from the residence that they have been sharing with their now ex-partner. This lessens the conflict and allows for both parties to determine how they will proceed. Once you and your spouse are living completely apart, the monies from employment are considered separate property.
Not Quite the Same
Often, when people use the term ‘legal separation’, they are speaking about a period of time during which they are required to live apart before they are allowed to file for divorce. However, California does not have a legal separation period, but instead works on separation requirements, which denotes that the partners seeking divorce should be living and sleeping in different locations. Simply moving to separate bedrooms within the same residence may not constitute separation.
Filing a Petition for Divorce
People are only permitted to file for divorce in the state where they and their partner live. In California, they must have lived in the state six months prior to filing for divorce and in the County of San Diego, at least three months. Filing for the ‘dissolution of a marriage’ or a divorce, requires various forms to be completed, and you may also be required to pay a fee to the court in the San Diego County. Your lawyer will help you complete and file the necessary forms.
Part of filing a petition for divorce will be recognizing the ‘grounds for divorce’. For a no-fault divorce, such as California, you may simply be able to enter ‘irreconcilable differences’ or the ‘breakdown of marriage’.
Another aspect of filing your petition will include listing the various items that may be at issue for ownership, such as cars, the residence, retirement accounts and other shared possessions and debts accrued during marriage.
Notifying the Other Spouse
Once you have filed for a divorce, the other spouse will have to be ‘served’ or notified with papers regarding the dissolution petition. In some cases, a spouse will be able to sign a document known as a notice of receipt and acknowledgment which allows him or her to agree they were served.
In California, a petition must be responded to within 30 days the other party is served with it. If they do not respond, contrary to popular belief, the process can continue and the filing spouse can request a default be taken against the non responsive party, which means you can ask the judge to grant you everything you have asked for in your petition.
Once the response has been given, there will usually be another waiting period before your court sets a hearing for status. In San Diego County, this can be between 3-6 months. If it is difficult to locate your spouse, then a service by publication may be filed, which will allow a notice regarding the divorce to appear in a newspaper in the county wherein your spouse last lived.
Filing a Motion for Custody/Visitation and Spousal and Child Support
After filing the petition for divorce, if you need orders for custody/visitation and support, a motion will have to be filed with the court. This requires legal forms and an actual court appearance which can be completed by your attorney. There are strict deadlines and rules as to how the motion can be written, served and filed, so it’s best to contact an experienced Family Law attorney to represent you.