There are several cases wherein a spouse has filed a petition for a divorce, but the other partner has not officially filed for a response to the petition yet, or defaulted. In addition to this, the two divorcing parties have created a written agreement which incorporates well defined instructions for the actual legal separation or divorce and other related issues such as division of property and debt, visitation and child support and custody. If the partner who has filed for a divorce does not receive any response from the other side within 30 days, the situation is termed as ‘default with agreement’. We are listing here a few steps to be followed by the petitioner to proceed with this situation.
Writing the agreement
The first and foremost step is to actually create an agreement in writing which clearly states the couple’s intent of getting separated or divorced. In addition to this, your agreement may also incorporate instructions for the division of your property and debt. Furthermore, you and your partner may agree upon whether either of you needs to pay for the support of the other partner. In case, there are any children involved, the couple can also reach an agreement regarding the custody, support and visitation of their kids. This written agreement is referred to as an MSA or marital settlement agreement and should be attested by a certified notary for legal validation.
Filling out the forms
It is the petitioner’s obligation to present the final forms in the court of law requesting the judge to announce a final verdict for their divorce or legal separation. In addition to this, you can also request the judge to announce the legal orders regarding other related issues such as division of your assets, custody, support or visitation. A petitioner cannot present the final forms in the court of law until 30 days have passed from the date of presenting the petition and summon to their spouse.
Completing the required financial disclosure
Usually, both the petitioner and his partner are required to create and serve a ‘Declaration of disclosure’ as part of the requirements in a divorce case, known as the “Preliminary Declaration of Disclosure.” A couple can waive the completion and service of a “Final Declaration of Disclosure” by stipulation at the end of the case.
To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation.
Duration and expense are the two major factors of a divorce that largely depend on the level of agreement that the involved parties have with each other. The more disputes and conflicts you have with your partner, the longer and costlier your divorce will be. It is, therefore, advisable to minimize your disagreements with your spouse, and try to reach an amicable and mutually agreed upon settlement for the various aspects of a divorce such as custody, property division, and visitation. Let us have look at the various factors in an uncontested divorce that might influence the time taken to reach a final verdict.
Reaching an agreement
The first obvious factor that influences the duration of an uncontested divorce is how long the parties take to reach a final agreement. In a bid to speed up the process multiple times, it is advisable to create and sign a marital settlement agreement well in advance before you go ahead with filing a petition in the court of law. While typically the partners begin negotiating an agreement only after they have filed for a divorce, it is easier if you resolve your disputes ahead of time and eliminate the chances of wasting several months in delaying litigation-related activities such as exchanging documents, discovery, property appraisals or custody evaluations.
Waiting periods
The state of California makes it mandatory for all couples, who have filed for a divorce in the court, to wait for a period of six months from the date of the petition before they can be granted a final separation. The purpose of imposing this compulsory waiting period is to ensure that both the parties have ample time to ruminate over their decision and make up their mind that they are ready to take the big plunge. The spouses can also use this time to negotiate a working settlement if they do not already have one.
Litigation process
The final court proceedings can take anywhere between four to twelve weeks and even more, depending on the complexity of the specific case. The court trial will include the arguments of both the parties, witness testimonies, and rebuttals against any accusation that a spouse might wish to refute as inaccurate. After taking all evidence into consideration, the judge will announce his/her final decision.
The bottom-line is, that if you want your divorce to get finalized as soon as possible you must try and work out a mutual agreement with your spouse and try to keep things simple.
To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation.
One of the major considerations of all divorcing couples is how long will it take for the court to announce a final judgment for their lawsuit. Although much of the duration of a divorce litigation depends on the level of understanding and agreement that the involved parties have with each other, there are some other factors as well that might be taken into consideration while calculating the approximate time for it to get finalized by a judge.
Filing the petition
California law enforces the minimum residency requirement for divorcing couples as at least six months before the petition is filed. In other words, you can file for a divorce only if you have been living in California for the last six months or more. Once you file the petition in court, you are required to serve your spouse with a copy of the divorce documents. The other spouse has a period of 30 days within which he or she must respond to the served documents. However, if you deem it necessary you can work out a waiver of the 30 days period with your attorney and offer some more time to your spouse to make up their mind.
The 6-month rule
Irrespective of the understanding with your partner, the state law of California stipulates that no couple can get a divorce before serving a six-month “cooling off” waiting period from the date the court of law acquires jurisdiction over the other party. This happens only when you serve your spouse with a copy of the petition and summon as a part of the primary divorce action. The purpose of enforcing this six month waiting period is to give sufficient time to the couple to rethink their decision of separating and ensure that they are taking the right decision. The couple can use this time to resolve their difference and drop the idea of a divorce or work out a mutual agreement regarding visitation, property division, and custody related issues.
Other issues
If you and your spouse are not prepared for the divorce litigation, you might end up wasting a lot of time struggling with the minute details of your lawsuit. Since there are several litigation-related activities, such as document disclosure, property appraisal, and custody evaluation that must be completed within the duration of the process, it is advisable to finish off with them well ahead of time.
If you wish to get over with your divorce finalization as soon as possible you must discuss this with your spouse and try to work over your disagreements to reach a final settlement regarding the various aspects of the divorce.
To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation.
Marriage annulment is a fairly misunderstood concept owing to the inaccurate projection of its legality by the popular religion and culture. Both annulment and divorce can be considered somewhat similar in their basic underlying principle of determining the status of wedlock. However, the major distinguishing factor that separates an annulment from a divorce is the implication of the marital status post a verdict in the court of law in the two cases.
What is the difference between a divorce and an annulment?
A divorce or a legal separation marks the end of a valid relationship and implies that the couple is no longer viewed by the court as man and wife. On the other hand, an annulment, colloquially termed as nullity of domestic partnership or marriage, is when the court declares the domestic partnership or marriage never really existed in the first place. Post a verdict of annulment, it is assumed that the marriage never really happened as it was not valid or legal to begin with.
What are the grounds for filing for an annulment?
A marriage is never considered valid by the Californian state law, if the two parties involved are related by blood.
Another situation wherein a marriage stands illegal or invalid is when one of the partners is already in an existing registered wedlock with someone else. The marriage is then termed as bigamous.
A person who was below the acceptable age of 18 years at the time of his/her marriage can also file for an annulment of the same.
Another situation which is somewhat similar to bigamy can be distinguished on the basis of the fact that a spouse, who was already married to someone else, gets into another wedlock on the premise that the former partner has been absent and assumed dead for the past five years.
If either of the partners has an unsound mind that prohibits them from understanding the true implication and obligations of a marriage, their spouse can request an annulment.
An annulment can also be requested in a situation where a marriage was a result of fraud. For example, if an individual deceives his partner into wedlock only for obtaining a green card, the marriage will be considered fraudulent and invalid.
In cases where a partner was forcefully made to consent for a marriage, an individual can file a petition for an annulment.
Finally, if one of the partners was physically incapacitated at the time of marriage which rendered him/her unable to consummate the relationship, and the incapacity continues to stay incurable, the healthy partner has the right to file for annulment.
In order to obtain an annulment, it is mandatory for an individual to be able to prove at least one of the aforementioned reasons, with authentic evidential proof in the court of law.
To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation.
It usually means the end of visiting the court and interacting with lawyers once a divorce has been finalized. But if the divorced couple has children, it does not mean an end to an emotionally ugly divorce case. It is because after a divorce has been granted, the divorced parents will have to deal with the issues of child support, custody and alimony.
A number of rulings from the divorce can be modified post-judgment. Some of these have been discussed here.
Child custody and visitation
Any parent can seek a modification to the final custody ruling. But you will have to prove to the court any significant change in circumstances that may have happened since the judgment. Also, you need to show that the newly proposed order will be in the best interests of the child. If a parent misses visitations but makes up for it later, you cannot ask for modification in custody.
If you want a modification of the custody and visitation rights, you have to make a showing of a “substantial change of circumstances” since the judgment was entered. Also, a parent who feels that the other parent is not spending sufficient time with the child or is causing physical and emotional abuse can request for post judgment modifications.
Child support
You can also modify child support after a judgment. It can be done at any time if there is a change in the incomes (increase or decrease) of both the parents. But you, the parent, should be able to determine if the change in your income is permanent or not. Also, a slight change in income should not be a reason for seeking post judgment modification. Your request will not be entertained if the judges feel the change in income is not significant.
Alimony
If the divorce ruling was agreed upon by the spouses, then a modification of alimony post judgment is not possible. The amount of alimony awarded, though, can be modified. But it is not a very straightforward or simple process. The Court considers the 13 factors stated in the Family Code section 4320 and other related aspects to reach a decision.
Always consult with experienced divorce lawyers in California before requesting for post-judgment modifications or defending such requests. They will help you to plan a strong strategy and approach the court with a solid case.
To learn more about the divorce and post-divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation.
Almost all women change their last name to their husband’s last name when they get married. After a divorce, most women want to change their last name again. Doing so should not be problematic and there are provisions to help you do so.
There are different ways of doing it. Depending on the laws of the state that you live in, you can choose from the methods discussed below.
Request for a formal order – You can ask the judge dealing with your divorce case to make a formal order about changing your marital name back to your birth or former name. You should retain certified copies of the formal order as proof of your name change. You will need this proof to make changes to your personal records and identification.
Request for modification of divorce decree – If the law does not permit the judge to make a formal order, request for a modification of the divorce decree where it will be mentioned that your name has been changed back to your former name. In some states, such as California, you can fill a form called Ex Parte Application for Restoration of Former Name after Entry of Judgment of Order (FL-395) after a ruling has been made to change your name.
Other method – If you cannot get your name changed by an order from the judge or cannot file for name change after the divorce ruling, you need not worry. If you have any proof of your former name (your birth certificate or an old passport), you can still change your last name by filing a petition to do so in probate court.
Restoring your earlier name is not much of a hassle. Recent immigrants and those without some sort of identification or legal documentation (that can serve as proof of your earlier name) will have trouble changing their last names but not the others.
Sometimes you may be allowed to change the last name of your children to your last name. Generally, it is the accepted norm that the children will retain their father’s last name. But if the father does not have an active role in parenting, the children’s last name can be changed too. Just file a petition in the court.
To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation.
The institution of marriage is one based on trust and loyalty. When these emotions are diluted with adultery, you find the marriage ending in divorce. It is a painful experience for the parties involved and can get quite messy if not dealt with properly. You can avoid the name-calling and finger-pointing if you are aware of legal procedures involving divorce because of adultery.
In the U.S., you have a divorce procedure called ‘no-fault divorce’. The proceedings do not require the spouse filing the divorce to testify why the other spouse is at fault for the breakdown of the marriage. Adultery is illegal in many states but it isn’t so in California. Thus, the legal definition of adultery is still up for interpretation. However, there is a general agreement that adultery occurs when one partner engages in a sexual relationship outside marriage.
When you are filing for divorce, you need not mention why the marriage failed or who was responsible. You only have to state that the marriage is broken beyond repair and separation is your best solution. If the reason for divorce is adultery, it is better to consult a family law attorney who can help you settle other matters involved in the divorce.
Alimony or spousal support is an important consideration in a divorce, especially if you are the dependent. An alimony order can be issued while the divorce is still being processed. The spouse receiving it can also request for temporary alimony which will be in place till the matter settles. The final order will nullify the temporary order.
You have to understand the granting of alimony is at the discretion of the judge. The judge will be the one to decide if alimony is necessary or there is enough evidence to support awarding the alimony. The total duration of the marriage is also a factor in determining the amount you receive. The shorter your marriage, lower the alimony. In addition, the judge has to weigh in on the needs of the receiving spouse and the capability of the paying spouse for alimony to be granted. The ruling should be fair so there isn’t a huge difference in each spouse’s standard of living.
Alimony isn’t punishment or compensation. It is meant to provide monetary stability for the dependent spouse even after a divorce.
It is best to resolve your marital differences amicably, especially if there are children or other dependents involved. This will ensure your relationship does not affect them negatively and you are able to move on without any bitterness towards one another.
To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation.
About 40 to 50 percent of married couples in the United States file for divorce. The divorce rates for the subsequent marriages that follow are even higher. The allowance for no fault divorces has pushed the numbers up significantly. With this increasing number of failing marriages, more and more couples have started to seek peaceful methods to resolve their otherwise distressing problems.
Divorce mediation comes to the rescue
The most popular among them being divorce mediation. Simply put, divorce mediation is you and your soon to be ex-spouse deciding the terms of your divorce and what’s best for you and your children, if you have any. In mediation, you and your spouse hire a neutral third party, the mediator, and they help you work through your differences so that you can end your marriage quietly and cost effectively. Unlike trials, there is minimal visit to the court and it is easy on your pockets. The amount of time and money you would otherwise spend in the court is almost reduced by half.
An unsurprisingly increasing number of couples have resorted to divorce mediators and are beginning to show faith in the results these wonder workers can craft out of even the most difficult divorces. This leads to the question all such couples want to know the answer to; can a mediator file divorce papers?
The important question
The answer is to the question of whether the divorce mediator can file the divorce documents with the court is generally “yes.” The mediator can file the divorce papers (draft and file the necessary court documents and Qualified Domestic Relations Orders “QDROs”), but that is when it is most helpful if the mediator is also a divorce and family law attorney who is very familiar with the forms and information needed and the procedures involved. The mediator can assist the parties in filing the papers with the court, including dissolution of marriage action, disclosure documents, and preparing the agreement, judgment, and final papers to be filed with the court.
The process is quicker and the information shared is kept confidential. While making compromises is inevitable in divorces, doing it through mediation will preserve your dignity and leave you satisfied and probably help you end your separation on good terms.
To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation.
A divorce becomes ‘uncontested’ or a decision is reached by ‘default’, when either of the parties does not respond to a divorce or separation petition or they reach an agreement. In a ‘true default’ process, either of the party can give up their right to have a say in the outcome of the divorce or separation proceedings. A ‘true default’ is not a very good idea and is advised against.
Reaching an agreement
If you choose to reach an agreement, you will have to decide on – dividing your property and debts, terms of spousal or partner support, child support or custody and visitation rights in case you have children together. Before you sign an agreement, make sure that you have understood all the aspects in the agreement.
Even if you reach an agreement on all the above issues, make sure you are completely aware of the legal requirements of property division, child support, child custody and visitation rights, and spousal or partner support. Take legal advice to follow the legal requirements for each of the above mentioned procedures.
Responding and agreeing
A divorce becomes ‘uncontested’ when the parties respond to the petition and reach an agreement on their own. Both parties need to prepare a formal agreement. It is called the ‘stipulated judgment’. The stipulated judgment needs to be notarized. After you prepare a formal agreement, you need to fill out the divorce filing forms and all other related forms formally asking the court to give a judgment on the divorce or legal separation.
Not responding
If you decide not to respond to a divorce petition, you should very carefully go through the papers filed by your spouse or partner. You need to be very much aware of the terms and conditions of the divorce you are accepting. The court is going to award a judgment in favor of the petitioner. It is called a divorce by ‘default’.
If you do not want to respond, you should at least make sure that you are a part in the decision making process. You should get a written notarized agreement with your spouse or partner. Because a decision is being made about your future, you should be aware of what you are getting into.
To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation.
Under California state law, marriages or registered domestic partnerships can be ended in 3 ways – divorce, legal separation and annulment. But each method has its own requirements. Both parties in a marriage or partnership are not required to file for any of these procedures. The party that files for any one of these procedures will receive a judgment by default.
Legal separation
A legal separation is considered to be the foundation for a divorce. A legal separation entails a complicated court process. It involves attorneys and judges. When matters related to child custody, child support, property division and spousal support remain unresolved between separating couples; a legal procedure needs to be followed to reach an agreement.
During legal separation, couples live separately but are not allowed to remarry or enter into another domestic partnership. The procedures of filing a legal separation or a divorce in California are, however, very similar.
Divorce
In California, divorces can be sought on the grounds of ‘no fault’. A ‘no fault’ divorce does not require any of the parties to prove that something wrong was done by the other partner or spouse. They can site ‘irreconcilable differences’ as a reason for ending the marriage or partnership. While filing for a divorce, if the requirements of ‘summary dissolution’ are met, you do not need to appear in front of a judge for a judgment. It is then called a regular divorce.
Some of the requirements for summary dissolution include –
You have been married for less than 5 years.
You do not have or are expecting any children together.
Annulment
An annulment is filed when the marriage or partnership is not considered to be legally valid. If an annulment is granted, it means that the union never occurred or existed. In an annulment, spousal support is not paid. Property division is not done by following community property laws. If children were born during this partnership or marriage, paternity has to be established.
The reasons for annulment may include –
The party/parties were not of legal marriageable age (18 yrs) when the marriage or partnership occurred.
The parties are related by blood.
Either of the party is already in a marriage or registered domestic partnership.
Either of the party was tricked into the marriage or partnership.
To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation.
There are several cases wherein a spouse has filed a petition for a divorce, but the other partner has not officially filed for a response to the petition yet, or defaulted. In addition to this, the two divorcing parties have created a written agreement which incorporates well defined instructions for the actual legal separation or divorce and other related issues such as division of property and debt, visitation and child support and custody. If the partner who has filed for a divorce does not receive any response from the other side within 30 days, the situation is termed as ‘default with agreement’. We are listing here a few steps to be followed by the petitioner to proceed with this situation.
Gerald A. Maggio is a trained Orange County 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. 
