Divorce refers to the legal termination of a marriage granted by a court. However, you cannot simply walk into a courtroom and request a divorce. Instead, most states require the parties to go through a number of steps first, including a mandatory waiting period and filing divorce papers.
Divorce papers, also known as a “divorce petition”, is a legal document that must be filed in court to initiate a divorce. Though the specific requirements of what to include in a divorce petition will vary by jurisdiction, they generally contain the following:
- Contact information for both spouses;
- The grounds (or reason) for divorce;
- Identify any children from the marriage; and
- Various other items that will be discussed in further detail below.
After a divorce petition is filed, the spouse who filed them must serve certified copies of the petition on the other spouse. This puts the receiving spouse on notice that a divorce action has been initiated against them and that the divorce process has officially begun. Once served, the receiving spouse must then respond to the divorce petition.
What Documents Are Included in the Divorce Papers?
In order for divorce papers to be considered valid in California, the following requirements must be met:
- One or both spouses must have lived in California for 6 months and in the specific county where the case is being filed for at least 3 months. If this initial requirement is not satisfied, then the couple is not eligible to file for divorce. They can, however, file for legal separation and then file an amended petition for divorce once the residency requirements are met.
- If eligible, the spouse filing for divorce must then fill out several forms:
- The Divorce Petition (Form FL-100): This form provides the court with basic information about the marriage, the grounds for divorce, the parties, and details about assets and children.
- Summons (Form FL-110): The summons contains important information for both parties concerning the divorce process, rules about restraining order limitations, prohibits either party from moving out of state, and some other standard instructions.
- Property Declaration (Form FL-160): This form is only necessary when the parties need more room to list property and/or assets.
- Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (Form FL-105): If the couple has children under the age of 18, then they must fill out this form and attach it as part of the divorce filings.
- Child Custody and Visitation Application (Form FL-311): Similar to the property declaration, this form is also optional and permits the court to rule on issues regarding child custody and child visitation rights.
- Some jurisdictions also require the filing spouse to fill out local forms. Consult the local court website, court clerk, or an attorney to find out more about possible local forms that must be filed in a particular county.
- Finally, the petitioning spouse must also serve a copy of the Court Conference Hearing Date (Form FL-1050) on the other spouse. It contains information regarding the date, time, location, and judge for the court conference hearing where both parties will discuss the status of their case with the judge.
How Do I Respond?
After a party has been served with divorce papers, they will have 30 days from the date they were served to respond. There are several ways that a party may respond to divorce papers. These options include:
- Doing nothing: This means whatever the petitioning spouse requests in the divorce papers will most likely be granted by the judge. This is known as a true default. By failing to respond, the party is not involved in the divorce process at all and is thus defaulting. This means that the party has also given up their right to participate in the case and does not contest any of the petitioning spouse’s requests or the divorce itself.
- However, a party who has signed a written and notarized agreement with their spouse that states that both parties have agreed to end the marriage and also agree to the division of property, spousal support, child custody, and so on, will have a final say in the outcome even if they do not file a response. While this is still considered a default, the agreement permits the party to have a final say.
- File a response and sign an agreement: Under this option, the party can file a response and reach an agreement with their spouse. This is also considered an uncontested divorce because the parties will have agreed on everything prior to the divorce proceeding.
- File a response and disagree: The party can also file a response that disagrees with the other spouse’s requests. This is known as a contested divorce and requires a court to make all final decisions. Additionally, the party may include their own requests and desires that they want from the outcome.
It is important to keep in mind that parties who do not respond to divorce papers will not have any say in the matter. By not responding, these parties are choosing to give up their rights to participate in the case and thus the court is likely to grant all of the other spouse’s requests. This means that if their spouse claims a particular property and/or asset, or asks for a certain amount of alimony, the other party will be required to comply with their request.
How Do I File a Response?
As previously mentioned, an individual will have 30 days from the date they were served to respond to the divorce papers. A response to divorce petition is basically an answer to all of the requests and information filled out in the initial divorce papers. A party who opts to respond to a divorce petition will be required to complete and file a number of forms.
In order to properly file a valid response to divorce petition in California, the respondent must do the following:
- Complete the Response Form (FL-120): Similar to the initial divorce petition form, the response form will ask the party to fill out certain information, such as their address, details about the marriage, child custody arrangements, a list of property and assets, the grounds for divorce, additional relief, and a few other important questions. Note that depending on the county, a respondent may also have to complete local forms.
- Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (Form FL-105): Again, this form is only necessary if the couple has children together and those children are under the age of 18.
- Child Custody and Visitation Application (Form FL-311): Unlike the form above (FL-105), this form is optional and does not have to be filled out even if the couple has children. It allows the court to make decisions about the parties’ child custody and child visitation rights. While it may be helpful to address these issues early on in the divorce process, it is not necessary.
- Proof of Personal Service (Form FL-330): This form confirms that the response to divorce petition was filed with the court and served on the other spouse. Alternatively, the respondent can also serve them by mail, in which case they will need to complete and file the form for Proof of Service by Mail (FL-335).
What Do I Do with the Papers?
After the respondent has filled out all the necessary paperwork, they must file the originals with their local County Clerk, serve the other spouse, and retain copies of the filing. The respondent can either mail these papers to their spouse, or they may have someone other than themselves serve the papers on their spouse in person. If they choose to have them served in person, the person who serves the paperwork cannot be a party to the case and must be 18 or older.
Once the other spouse has been served, a Proof of Service form (FL-330) must be completed and filed with the County Clerk.
What Are the Next Steps?
If the couple can work together, they should try and agree on or resolve any issues before the scheduled court hearing. If the parties find it difficult to compromise or cooperate, the court will likely request that they attend mediation to settle any disagreements.
If the parties cannot come to an agreement in mediation or there are issues that still need to be resolved, the court can intervene during the hearing and can settle any remaining disputes for them.
Contacting an Attorney for Help
Divorces, especially ones that are contentious, can be difficult to navigate without the support and assistance of a legal expert. There are many steps you must take to finalize the divorce process and even in cases that are seemingly straightforward, the parties must still appear before the court to receive the final judgment. Thus, if you and your spouse intend to file for divorce, you should consider contacting a California divorce lawyer as soon as possible.
Your lawyer will be able to answer any questions you may have about your divorce, the process, and any relevant laws. Your lawyer will also be able to assist you with the necessary paperwork and can provide representation on your behalf during court appearances or mediation sessions. Finally, if you are not happy with the terms of your divorce agreement, your lawyer can help you negotiate for better or more favorable terms.