Ending a marriage is one of the most challenging decisions a spouse can make. In addition to emotional turmoil, you may have heard that divorce can be a lengthy and costly process. In Davis, California, every divorce has its own difficulties, costs, and timelines.
During this stressful process, you need compassionate and caring Davis divorce lawyers. You need an ally who believes in healing families, even during a divorce. At Pakpour Banks LLP, we understand that ending a marriage is already a painful prospect. Thus, we strive to make the divorce process as painless as possible. We fight for our clients to get the results they need, which can help them heal and rebuild their lives. Contact us today.
Types of Divorces in California
California’s different types of divorce or marriage dissolutions fall under different legal definitions.
Grounds for Divorce
You must have a legal reason or “ground” for a divorce in California. California’s default divorce is based on “irreconcilable differences.” This means neither party is at fault for the end of the marriage. Typically, this is the most painless method to use when filing for divorce.
Another ground for divorce in California is a spouse’s permanent legal incapacity. To use this as your grounds for divorce, you must prove that your spouse can’t legally make decisions. Typically, you can prove incapacity through medical testimony.
Void or Null Marriage
Under California law, there are reasons why a marriage may be legally voidable or not valid at all. For example, if one spouse was already married to someone else, then the second marriage cannot legally exist. Grounds to void or nullify a marriage include:
- Bigamy;
- Incest;
- Unsound mind;
- When married, either spouse was not of age to legally consent to marriage;
- Fraud;
- Force; or
- Physical incapacity.
Getting a nullification—often called an annulment—is not easy. You must prove your case before a judge. Speak with our Davis divorce attorneys if you are considering voiding or nullifying your marriage.
What Happens in a Divorce
A divorce proceeding addresses several family law matters. First, a court will decide on the legal dissolution of the marriage. Next, the parties will negotiate the terms of the divorce. This includes the following:
- The division of marital assets and debts,
- Child custody and visitation,
- Child support, and
- Spousal support.
The court will decide if the parties do not agree on how to resolve these matters. The court can also order one party to pay the other’s attorney’s fees, either early on in the proceedings, at the end, or both.
Property Division
California is a community property state. This means that both spouses jointly own all property acquired by each spouse during the marriage. Community property includes income, property, retirement plans, pensions, and community debts. There are exceptions to joint ownership, such as property one spouse receives as a gift or inheritance, or property that one spouse held before the marriage.
In a divorce, the spouses keep their separate property and equally divide their community property. Although the law requires an equal split, spouses can voluntarily agree to a different division. However, it’s rarely as easy as it sounds. Your spouse may have taken on debt you were unaware of, or you may disagree on which of your assets qualifies as separate property. Speak with a Davis divorce attorney before you agree to property division.
Spousal Support
One spouse may have to pay the other spousal support, or alimony, if one of the spouses’ income is significantly less than the other’s or if one spouse stays home to care for the children. A judge uses several factors to determine spousal support, such as:
- The length of the marriage,
- Each spouse’s income and earning capacity,
- Each spouse’s educational and employment history, and
- How caring for the children impacts each spouse’s ability to work.
Spousal support can be temporary and last only while the divorce is pending. Or, it can be permanent and last until a future date that the court or parties decide upon. For example, the judge could rule that one spouse pays alimony until the recipient spouse remarries, or either spouse dies.
Child Custody and Support
If the spouses share children, the parties must also reach a child custody and child support agreement. Parents can agree to various forms of custody, such as joint physical custody or one parent with sole physical custody and the other with specified visitation rights. If the parties cannot reach an agreement, a court will decide custody based upon various factors. But in decisions concerning a child, the overriding concern is protecting the child’s best interests.
Courts use a formula to determine child support. The formula mainly depends on who has primary custody of the children and the income differences between the parents.
The Court Procedure for a Divorce
A divorce is a court case and must go through the judicial process.
Every case goes through a somewhat different process. For example, some spouses quickly negotiate a divorce and have few disagreements over the distribution of property or child custody, etc. This is called an uncontested divorce, and these tend to resolve the quickest.
However, in contested divorces, spouses may agree to the divorce but disagree on one or more other issues—like property division or child custody. A court may send the spouses to mediation, where a neutral third party will try to help the spouses come to an out-of-court resolution. The case will go to trial if the mediation fails or the spouses do not otherwise agree to the divorce terms. Then, a court will decide each of the outstanding issues.
Starting a Divorce
Any divorce starts with proper jurisdiction, meaning a divorce must be initiated in the right state and the right county. To file for divorce in California, you or your spouse has to have lived in the state for six months or longer. And when it comes to the county where you file for divorce, at least one spouse has to have lived in the county for at least three months. When you know which court is the correct venue for your divorce, you can initiate your case by completing and filing a Petition for Divorce, a Summons, and a Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (if you have children with your spouse).
You generally need to include a filing fee with your petition documents. You may ask the court to waive the fee if you cannot afford it. If you live in Davis, your court is the Superior Court of Yolo County.
In many cases, your completed forms must be personally served on your spouse. To have your documents personally served, you must have an appropriate party deliver them to your spouse and fill out a proof of service form that you must file with the court. An appropriate party is anyone who is at least 18 and is not part of your divorce case. Many parties use a professional process server or the sheriff to serve their divorce papers. Your spouse has 30 days to respond to your divorce filing.
If you cannot locate your spouse, the court may allow you to complete service by publication. The process involves publishing notice of the divorce in a local newspaper for several consecutive weeks, after which the court considers your spouse legally served. If you have limited means, the court may permit you to serve the other party by “posting,” which is where you physically post the summons on the courthouse bulletin board (typically located near the filing window) for a period of 30 days.
Additionally, if you or your spouse files for divorce in the wrong county, your lawyer can help you ask the court to transfer the case through a Motion to Change Venue.
Resolving Your Issues in Your Divorce Case
After opening your divorce case, you and your spouse must exchange financial information, such as:
- Pay stubs,
- Bank statements,
- Property titles and leases,
- Credit card statements,
- Tax returns,
- Investment statements,
- Mortgage documents,
- Retirement account statements, and
- Any other documents reflecting your debts and assets.
After collecting the above information that is applicable to your case, you and your spouse need to fill out the Declarations of Disclosure, Income and Expense Declarations, Property Declarations, and Schedules of Assets and Debts to deliver to each other. Once you have delivered this information to your spouse, you must let the court know by filing a Declaration Regarding Service of Declaration of Disclosure.
To resolve your case, you and your spouse can write out an agreement that covers property division, child support, and child custody. But if you and your spouse cannot agree on all divorce terms, you can go to trial and have the court decide. Before trial, the court will likely send you to a settlement conference, which is where you meet with either a judge or lawyer who attempts to broker a settlement between the parties so they can avoid trial.
California law imposes a mandatory six-month waiting period on divorce. Even if you and your spouse agree on all issues sooner, the court cannot officially grant your divorce until six months after the respondent spouse is served, appears in court, or files documents in the case.
Divorce Bifurcation
In some divorces, resolving every issue can take a long time. California law allows spouses to use a process called bifurcation, which lets the court decide certain issues—such as marital status—separately from the rest of the divorce.
Couples often use the bifurcation process to legally end their marriage before resolving every other matter in their divorce. Sometimes called a “status-only” divorce, people often choose this option when:
- One spouse wants to remarry before resolving property or custody disputes;
- A spouse needs to quickly separate financial lives for purposes like taxes, estate planning, or access to retirement benefits; or
- One or both spouses want to move forward quickly to gain emotional closure.
While it can provide significant benefits for some couples, bifurcation requires extra legal steps. Our Davis divorce attorneys can help you decide if requesting bifurcation is the right step in your case.
Finalizing Your Divorce
After making agreements or attending a hearing and exchanging the proper documents with your spouse, it’s time to finalize your divorce. You will likely have to fill out and submit several forms to the court. These forms will likely include:
- Judgment;
- Notice of Entry of Judgment;
- Earnings Assignment Order for Spousal or Partner Support;
- Spousal or Domestic Partner Support Factors Under Family Code Section 4320-Attachment;
- Spousal, Partner, or Family Support Order Attachment; and
- Property Order Attachment to Judgment.
One document people often forget to file is the form FL-141, or Declaration Regarding Service of Declaration of Disclosure and Income and Expense Declaration. The court needs this document before processing your judgment because it is the only way the court knows for sure that you both exchanged Preliminary Declarations of Disclosure as required by law. The court will not process your judgment unless you have both filed this form.
You may have additional obligations at this stage of your divorce case. Reaching out to the county court clerk or consulting one of our experienced divorce lawyers in Davis will help you know what additional obligations you may have. In general, when your divorce case is complete, the court will send you a Notice of Entry of Judgment marked “filed.”
How to Resolve Divorce Issues
Divorce does not have to involve a lengthy court battle. California law gives spouses several options for resolving their issues without relying on a judge.
Negotiation
Negotiation is often the most efficient and least contentious way to settle divorce terms. In negotiation, you and your spouse, generally through your attorneys, attempt to reach a voluntary agreement. Negotiation can take place through informal discussions or more formally in settlement conferences.
Spouses commonly negotiate issues related to:
- Division of community and separate property,
- Debt allocation,
- Child custody and visitation arrangements,
- Parenting time and schedules, and
- Spousal support.
The benefits of negotiation include:
- Control over the terms of your divorce,
- Flexibility for creative solutions,
- Cost savings, and
- Avoiding public disputes.
Even if you cannot resolve every issue, narrowing disagreements through negotiation can minimize the amount of help you need from a judge. We encourage clients to pursue good-faith negotiations whenever possible, while remaining prepared to litigate if necessary.
Mediation
Mediation is another option to resolve divorce disputes without a full trial. In mediation, a neutral third party—the mediator—facilitates discussions between spouses to help you find common ground. The mediator does not make binding decisions. Instead, they guide both spouses toward a settlement that works for the family and may make recommendations.
Mediation can cover every aspect of a divorce, and many California courts require mediation in divorces before scheduling a trial.
The advantages of mediation include:
- Neutral guidance. The mediator provides structure and helps keep discussions productive and focused.
- Reduced conflict. Mediation promotes cooperation and can preserve a working relationship between parents.
- Cost-effective. Like negotiation, mediation often results in significant cost savings compared to a trial.
- Satisfaction. Couples often leave mediation with mutually satisfactory agreements.
At Pakpour Banks LLP, we help clients prepare for mediation sessions by clarifying goals, identifying acceptable compromises, and ensuring their rights are protected. We also typically attend mediation with our clients and advise them throughout the process.
Collaborative Divorce
You can also get a divorce outside of the normal court process through a collaborative divorce. In a collaborative divorce, the spouses negotiate a divorce outside of the judicial process with the help of specially-trained collaborative divorce attorneys. The spouses and their lawyers meet to discuss terms and may even bring in experts or a team of professionals to help the couple negotiate often tricky terms involving child custody or property division. If you would like to pursue a collaborative divorce, contact the collaborative Davis divorce lawyers at Pakpour Banks LLP today.
Legal Separation
A legal separation is similar to a divorce except for one crucial aspect: You remain married. Like divorce, you must go through a judicial process to file for legal separation. The spouses must agree on the division of property, child custody, and spousal and child support. Otherwise, the court will decide. If you are considering a legal separation, you should speak with one of our Davis divorce lawyers.
Contact Our Davis Divorce Attorneys Today
If you want an experienced divorce attorney in Davis, CA, who understands the importance of compassion and healing during this difficult time, contact Pakpour Banks LLP. We don’t litigate a case just to litigate. We keep our clients’ needs central to our representation and only take cases to trial when it’s necessary to preserve their rights. Contact us today. Se habla español.
Our firm handles other types of cases as well, including:
FAQs
Is the Division of Community Property in a Divorce Always Equal?
Not always. The default in California is to distribute community property equally between the spouses. However, spouses who agree to the terms of property division can allot more assets to one of the spouses if they think the division is fair.
How Long Does the Divorce Process Take?
At a minimum, you must wait six months before your divorce can be finalized in California. Depending on the facts of your case, your divorce could take longer. The complexity of your child custody needs, the amount of property you and your spouse own, or an inability to agree on divorce terms can prolong your case.
How Much Does Filing for a Divorce Cost?
The filing fee to start a divorce case in California is between $435 and $450.
What If I Cannot Afford the Filing Fee to Initiate a Divorce?
If you don’t have the funds to cover the filing fee for a divorce petition, you can ask the court to waive the filing fee. When filing a request for a fee waiver, you will likely need to review many of your financial documents, such as pay stubs, tax returns, and public benefit information.
What Can I Do If My Spouse Files for Divorce in a Court That Is Inappropriate?
If there is another, more appropriate court that could have jurisdiction over your case, you can ask the court to transfer you to a different jurisdiction by filing a Motion to Change Venue.
What If I Cannot Find My Spouse for Personal Service?
You may have the option of serving your spouse by publication. This involves publishing your divorce filings in a newspaper where your spouse likely is. To complete service by publication, you typically must publish your filings for four weeks. If you have limited means, the court may permit you to serve the other party by “posting,” which is where you physically post the summons on the courthouse bulletin board (typically located near the filing window) for a period of 30 days.
Can I End My Marriage Before Resolving Property and Custody Issues?
Yes. Through bifurcation, you can legally restore your status to “single” while leaving property division, custody, or support issues to a later date.
Do I Have to Go to Court If My Spouse and I Agree on Everything?
Not usually. If you and your spouse reach an agreement through negotiation or mediation, the court can finalize your divorce without a trial.
Is Mediation Required in a Divorce?
Mediation is not required in every divorce, but California courts often require spouses to attend mediation before scheduling a trial.
How Is Collaborative Divorce Different from Mediation?
In divorce mediation, a neutral third party helps spouses reach an agreement, but the mediator does not make decisions. In a collaborative divorce, spouses work with specially trained attorneys and sometimes outside experts to negotiate solutions without going to trial. You can use mediation during a collaborative divorce, but it is not necessary.
Resources:
- California Statutes Family Code Section 760, Community Property, link.
- California Statutes Family Code Section 770, Separate Property, link.
- California Statutes Family Code Section 4320, Spousal Support factors, link.
- California Statutes Family Code Section 3600, Temporary Orders, link.
- California Statutes Family Code Section 3040, Child Custody factors, link.
- California Statutes Family Code Section 4050, Child Support formula, link.
- California Courts: Declaration Under the UCCJEA, link.
- California Courts: Serve Your Divorce Papers, link.
- California Courts: Gather and Share Financial Information, link.
- California Courts: Finish Your Divorce, link.
- Superior Court of Yolo County, link.
- Six-month waiting period on divorce, Cal. Fam. Code § 2339, link.
- Bifurcation, Cal. Fam. Code § 2337, link.
- California Courts: Fee Waiver, link.
- California Courts: Ask to Serve by Publication, link.