CALIFORNIA FAMILY LAW 

Divorce/Legal separation

In California, there are three ways to end a marriage: divorce, legal separation, and annulment.

A divorce (also known as “dissolution of marriage” or “dissolution of domestic partnership”) ends your marriage or domestic partnership. After you are divorced, you will be single, and you can marry or become a domestic partner again. You must meet California’s residency requirements to get a divorce.

A legal separation does not end a marriage or domestic partnership. You can’t marry or enter into a partnership with someone else if you are legally separated (and not divorced). A legal separation is for couples that want to live apart, yet resolve issues of property, custody and support. You do not need to meet California’s residency requirement to file for a legal separation. If you file for a legal separation, you may later file an amended petition to ask the court for a divorce once you meet the residency requirements.

An annulment (or “nullity of marriage” or “nullity of domestic partnership”) is when a court declares your marriage or domestic partnership to be legally invalid. A marriage or domestic partnership that is incestuous or bigamous is never valid. Marriages and partnerships can be also be declared void for other reasons as well. However, annulments are very rare. If you ask to have your marriage or domestic partnership annulled, you will have a hearing with a judge and prove your allegations to the court.

In California registered domestic partners must also file for dissolution, legal separation, or annulment to end their relationship.

Contact Kalfin Law to arrange your free consultation.

FAQ’s
What are the grounds for legal separation or divorce?

Dissolution of the marriage or legal separation of the parties may be based on

  • irreconcilable differences which have caused the irredeemable breakdown of the marriage; or
  • incurable insanity.

There are many factors that dictate the length of time of the dissolution proceeding. For a general overview of the dissolution process, click here. Once the initial papers are filed and served on the opposing party, the quickest the parties can be divorced is six months and one day. However, property division, custody, and support issues may and usually take longer to resolve. The more complicated the issues, the longer it takes. However, while the property and support issues are worked out it is possible to get the divorce judgment entered. You will be “divorced”, but the dissolution process will still be ongoing.

How long will the divorce take?

A judgment of divorce cannot be entered until six months and one day from when the initial papers were served on your spouse.  In actual practice, most judgments take longer to enter.  The parties, attorneys, and increasingly the court’s calendar all can effect the length of time it takes to get a judgment filed with the court.

Remember, you cannot remarry until the judgment of dissolution is entered and filed. Merely filing for divorce and obtaining custody and support orders is no substitute for the judgment of dissolution.

Many people file for divorce, obtain support orders and then do nothing on their case. The judge and the courts will not divorce you. You must be proactive and seek the remedy that you desire, otherwise you will be in legal limbo indefinitely.

Who will pay the attorney fees?

 

Can I keep my married name?

If the wife took her husband’s name upon marriage, it is HER choice whether to keep it upon dissolution or revert to her maiden name. She cannot be forced to use her maiden name.

How do I get back my maiden name back?

When you file your petition for dissolution (or your response if your spouse filed first), you request that the court order that your maiden name be returned to you. Upon entry of judgment of dissolution, your name is officially changed.

What happens if I don’t participate in the lawsuit?

If one spouse fails to answer the petition, then the spouse that filed the petition for dissolution can attempt to obtain a default judgment of dissolution and have that judgment entered. However, there are important steps that the petitioning spouse needs to take to accomplish that. The spouse who does not file a response risks having orders entered concerning property division, support and custody. It is important that both parities be diligent about participating in all phases of the dissolution process.

On what basis can I get my marriage annulled?

A marriage is void if it is a result of an incestuous marriage or a bigamous or polygamous marriage. Also, a marriage is voidable if any of the following conditions existed at the time of the marriage:

  • Lack of consent
  • Prior existing marriage
  • Unsound mind
  • Consent obtained by fraud
  • Consent obtained by force
  • Incurable physical incapacity

**Remorse in marrying the person is not sufficient grounds for an annulment.**

Keep in mind that in nullity proceedings, the moving party is required to “prove up” the basis on which the nullity is being requested.

Will child or spousal support be ordered while the divorce is pending?

Once a divorce or legal separation has been initiated temporary orders can be entered for child support, spousal support, custody & visitation and other issues pending a final disposition of the issues.

What are the residency requirements to file for divorce in California?

One of the parties to the marriage must be a resident of California for six months. Also, the party must be a resident of the county where the dissolution action is filed for three months immediately preceding the filing. There is no such residency requirement for nullity and legal separation actions.

Can one party get exclusive use of the marital house?

A court may order that one party gets exclusive use of the marital residence for a definite time period. The party must bring the appropriate motion including valid reasons as to why that party should get exclusive use. The court may order exclusive use if, for example, there are allegations of domestic violence and the spouse and or the children are in danger. In fact, even if the abused spouse does not have legal or equitable title to the property the party who owns the residence may be ordered by the court to leave.