The Divorce Process

Below is a brief overview of the divorce process and the options available to parties:

No Fault

California is a no-fault state. This means a spouse may file for divorce or, as it is officially called, dissolution of marriage, without needing to prove wrongdoing by the other spouse.  A spouse may claim “irreconcilable differences” or, in what is a far more complicated case because it requires medical confirmation, "incurable insanity."

Divorce, Separation, Annulment

To be eligible to file for divorce, a party must have resided in California for a minimum of six months, and in the same county for a minimum of three months. However, those not meeting this requirement may file for a legal separation. In a legal separation, property is divided and issues of child custody and support are determined. The marriage can then be dissolved when the eligibility requirement is met.

In an annulment, a marriage is voided for causes such as incest, underage spouse, fraud, physical or mental disability. Only a judge can grant an annulment. An annulled marriage  is treated as if it never existed. 

The Issues of Divorce

Whether by mutual agreement of the parties or the decision of an arbitrator or judge, all issues concerning property division, child support, child custody and spousal support must be resolved before a dissolution of marriage is granted. Parties can resolve all, most or some of these issues out of court through negotiation, mediation or arbitration.

Do-It-Yourself

Spouses can dissolve their marriage themselves by filing the proper papers and reaching a divorce settlement agreement. However mistakes made on paperwork and failure to appreciate the complexities of settlement can lead to problems. Review of filings and the settlement by an experienced attorney is usually wise.

Mediation

Mediation is an informal, voluntary process in which a mediator—a neutral third party trained in facilitation and negotiation techniques—assists both spouses to reach a mutually acceptable conclusion. Unlike litigation in court and arbitration, mediation does not impose a solution but rather assists the parties to arrive at agreement. Mediated agreements can include unique solutions tailored to the parties’ unique situations that are not available in litigation.

Litigation

In litigation, attorneys representing each party argue issues before a family court judge. The judge’s decision is final. Such litigation can be complicated, particularly in high-net asset cases involving issues such as prenuptial agreements, large real estate holdings, international investments, inheritances and trust accounts, substantial pension annuities, professional practices, etc.

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