What Are The Requirements for Filing For Divorce in California?
By: Gerald Maggio, Esq.
In the State of California, there are only two legal reasons for ending a marriage: [1] “Irreconcilable Differences” or [2] incurable insanity. While you may believe that your spouse is afflicted with the latter, essentially everyone files for irreconcilable differences, which means that no amount of marital counseling will save your marriage. California is a “no-fault” divorce state, meaning that you do not have to give the court any other reason for ending your marriage, as opposed to other states which require proof of adultery, etc.
To file for a California divorce, you must have lived in California for 6 months and for 3 months in the county where you intend to file the divorce paperwork. So to divorce an California Divorce, you must have lived in California for 3 months prior to filing.
A “Petition” is filed with the county clerk’s office, along with a Summons. The importance of personally serving the Summons and Petition on your spouse is that the Summons includes automatic, built-in family law restraining orders preventing either spouse from selling or giving away any property, changing any insurance policies or beneficiaries, or taking any children of the marriage out of the State of California without the express written consent of the other spouse.
These automatic restraining orders state as follows:
“Starting immediately, you and your spouse or domestic partner is restrained from:
1. removing the minor child or children of the parties, if any, from the state without the prior written consent of the other party or an order of the court;
2. cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage, including life, health, automobile, and disability, held for the benefit of the parties and their minor child or children;
3. transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life; and
4. creating a nonprobate transfer or modifying a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the disposition of property subject to the transfer, without the written consent of the other party or an order of the court. Before revocation of a nonprobate transfer can take effect or a right of survivorship to property can be eliminated, notice of the change must be filed and served on the other party. You must notify each other of any proposed extraordinary expenditures at least five business days prior to incurring these extraordinary expenditures and account to the court for all extraordinary expenditures made after these restraining orders are effective. However, you may use community property, quasi-community property, or your own separate property to pay any attorney to help you or to pay court costs.”
Personal service of the Summons and Petition can only be accomplished by someone who is 18 years or older who is not a party to the divorce, and alternate means of service may be necessary if the other spouse cannot be located.
For more information or for a consultation, contact California Divorce Mediators at (949) 553-0911 or at www.cadivorcemediators.com.
To learn more about the divorce process in California and how mediation can help, please visit our page, “What is Divorce Mediation.”
Gerald A. Maggio is a trained Irvine divorce mediator who has amicably resolved cases many cases out of court, as well as an experienced divorce and family law attorney. Mr. Maggio founded California Divorce Mediators in 2012 with the belief that although “not every marriage can be saved, every family can” and a mission to save families from the financial and emotional distress associated with traditional divorce litigation. California Divorce Mediators is located in Irvine, California, and serves the Orange County area and other counties in California offering divorce mediation, child custody mediation and mediation of other family law matters.
