General Information on California Divorce

The no-fault divorce is one of the best ideas that's come along since canned beer. In the bad old days, all divorces had to be processed through the fault system. You had to say that the other party had done something wrong. Some of the classic grounds for divorce were things like adultery, desertion, beatings. The least you could say was that the other person had been mentally cruel to you. And then you had to prove what you said was true, or the Court wouldn't grant the divorce.

Now, in most cases, that's just not the truth. In most cases, two people just fall out of love with each other. It's sad, but it happens. They may even still care for each other very much, but they don't want to be married any more. So what happens if you file papers saying that your spouse has cheated on you or beaten you or been cruel, when she/he hasn't?

Well, they get mad. And then they hire a lawyer and it turns into a big fight. And who wins when two people get into a big Court fight?

So, the no-fault divorce system is designed to let you get a divorce without alleging that the other person has done something wrong. That keeps the nastiness to a minimum. Even better, since you aren't accusing someone of doing something wrong, you don't have to prove anything to get your divorce. All you have to do is say that you're incompatible.

"I still get an amazing number of people who want to file for divorce on fault grounds. Usually they're younger people and they're talking about adultery. Of course, it hurts when you find that your spouse has been screwing around on you, and you want to get even. Still, it's not something that I'd want to go into court and tell everyone in the community about. If I caught my wife in the sheets with another man, I don't think I'd want everyone to know it."
Anthony B. - Attorney at Law.

Absolutely. California has made huge strides in making it possible for people to do their own divorces. The major hurdle is the forms. California has more forms to fill out than a forest has leaves. They're not complicated forms, but most of them don't come with instructions. Even some of the leading books on the subject have very confusing instructions for filling them out. That's why we formulated exact instructions on each and every form you have to use for your divorce.

"The forms can be very difficult to deal with. I think that the problem is that they set out to make the forms sort of one-size-fits all. You have multiple choices on each form, and you've got to figure out which box to check. If you have no children and very little property, does it make sense that you'd be using the same form as someone who has four kids, retirement pensions, and several houses? No, it doesn't, but that's what we've got."

Sherri S. - Paralegal

No two cases are exactly alike, so we can't say you definitely won't need a lawyer. If you go to the trouble to set things up right, though, in most cases you don't. Think of divorces as being on a scale of one to ten. At number one, you've got a simple case of two people who haven't gotten any property or had any children. That's the simplest kind of a case and it's ridiculous to pay out huge sums of cash for it. Somewhere in the middle, you've got cases where people have acquired some property and have a child or two. Those cases are more difficult, but they're still very do-able for the average person. Up around 10 on the scale are cases where there's a LOT of property and the parties are fighting over the kids. Those are very difficult cases and you should probably have an attorney representing you.

The major key in any divorce is whether or not the two parties are cooperating with each other. If you're working together, you can process your case without any lawyers walking away with all of your money. And, even if you don't feel like working with your spouse on the divorce, keep thinking of it in terms of that money. Every dollar you spend on an attorney is a dollar that neither of you will have.

"Well, once we got over that initial shock of, wow, we're actually getting a divorce, we were able to start talking. We just sat down at the kitchen table and started making lists. Who gets what, what's paid for, what do we owe money on, how much is on the credit cards and who takes what. I figure we saved 2 to 3 thousand just getting it figured out for ourselves." -Patty O.

If you are dividing a very large retirement benefit, you are going to need to have a Qualified Domestic Relations Order (QDRO) prepared. QDRO's are extremely complicated, so much so that many attorneys hire other attorneys who specialize in them to prepare them. If you are dividing that kind of retirement, you ARE going to have to hire a lawyer to prepare the QDRO. That doesn't mean that you can't do your own divorce, but it does mean that you need a lawyer for that part of it.

In most cases, no. California calls annulments "nullities" and they're only granted for very limited reasons. They fall into two categories: void marriages and voidable marriages. Void marriages are marriages that never could have taken place, such as a person marrying you when they are already married, or getting married to someone who is so close a relative that you're not allowed to marry them under our laws. Voidable marriages are marriages where there was something wrong with the marriage contract. For instance, if you're underage, you're not allowed to enter into a contract of any kind, including marriage. Or, if you were so drunk at the time that you married that you had no rational ability to enter into a contract. Fraud is another type of voidable marriage. If, for instance, you were to marry someone only to discover that "she" was a transvestite, that would be fraud.

Many people seeking annulments are Catholics, who have confused the church annulment with a civil annulment. If you have strong religious convictions, you can talk to your parish priest about getting an annulment from the church, but you probably won't be able to get one from the State of California.

"I do maybe four annulments a year, and several hundred divorces. They're a pretty rare breed of cat. Probably the most common causes I have for them are underage marriage and unsound mind. Kids run off with someone older and somehow con a marriage license out of a clerk. They finally wise up and go home to mommy and daddy. And then there are cases where the person was pretty mentally disturbed at the time they got married. I mean to a point where they really weren't able to make a competent decision to marry."

Don W. - Attorney at Law

You can get the divorce if you meet the California residency requirements. You need to keep in mind, though, that there are sometimes problems with jurisdiction. If you live in California, the Court has jurisdiction over you. If you have kids or property in another state, the Court doesn't automatically have jurisdiction over them. If you file here and your spouse in another state counter-files asserting no California jurisdiction, you may have to settle issues such as child support and visitation in the state in which the children actually live. That doesn't often happen, but there is a possibility. In that kind of a case, it's even more important to try to keep your spouse fully informed and be cooperative with each other.

"Obviously, the best scenario on jurisdiction is personal jurisdiction. If you have an individual who actually resides here in California or we can get him or her served with the papers here in California, then we can exercise personal jurisdiction and they have to appear in our courts if they want to fight.

Barring that, we can proceed with the case if the other party consents to it. That would usually mean that they would sign an acknowledgment for us, saying that they were aware of the case and that we had their permission to proceed.

Failing either of those two occurrences, we'd have to prove that they had some substantial connection with the State of California, what we call minimum contacts. If, for instance, the parties spent the majority of their married life here in California, or the respondent maintains a residence here. If we can prove those minimum contacts, then we can use long-arm jurisdiction to force them into our courts."

Pete. K. - Attorney at Law

Yes, you can. It's similar to a divorce, in that orders are entered for the support and custody of children and division of property, but the two people stay married. In some cases, they simply have strong religious or moral objections to divorce. In other cases, they may lose some benefits, such as insurance or social security if they divorce.

"Well, for instance, take a case I had with a military family. They'd been married for nine years and they were fighting like cats and dogs. Now, federal law says that the non-military spouse can't get any of the military retirement benefits until they've been married for ten years. It would have been stupid of the wife to finalize a divorce when she was so close to that ten year mark. And, truthfully, the husband didn't want to shaft her on her share of the retirement. He knew she'd been a good wife and mother. But . . . they couldn't live together. The fights were getting to a point where they were endangering his military career. So, we filed for legal separation and they went to neutral corners. When they reach the ten year mark, she'll file for divorce and get it over with."

Martha T. - Attorney at Law

You have four major issues: division of property; child custody; child support; and spousal support, also known as alimony.

Your costs for any Court case can be divided into two parts: (1) What you pay a lawyer to represent you; and (b) what the Court system charges you to file the case. In the last few decades they've raised the filing fees and raised them and raised them. That's one of the major reasons that so many people are doing their own divorces. They simply can't afford both the filing fees and lawyers.To find out what your particular county is charging, call the Superior Court Clerk.

If you really and truly can't afford them, then you can file a Pauper's Oath with the Court, asking that they be waived. DON'T do that unless it's really true, though. They'll ask for supporting proof and, if you lied about it, that's perjury and perjury can mean jail.

"You can file a paupers' oath for a couple of reasons. If you're receiving welfare or some form of public assistance, you just document that. Or you can swear that you're unable to afford what they call the, 'necessaries,' of life if you pay the fee. If you do that, it's a little more complicated to fill out the form. You have to document all of your expenses and income and tell whether there's anyone living with you who's contributing to your income. Then the court has the option of waiving your fees, or part of your fees, or saying, 'Nope, you've got to pay them.' "

Glenn D. - paralegal

Not always. California has a wonderful type of a divorce called a, "Summary Dissolution," in which you actually don't even have to go to court. But . . . you have to meet some pretty specific requirements to get one. Here they are:

3 - neither one of you can own any real estate, not just in California, but anywhere;

4 - you have to have less than $4,000.00 in community debts, not counting car loans;

5 - you have to have less than $32,000.00 in community assets, not counting cars;

6 - neither party can have more than $32,000.00 in total assets, not counting cars.

7 -you have to have a signed agreement dividing the property and debts prior to filing for the divorce.

So you can see that the Summary Dissolution is pretty much designed for people who haven't been married for too long. Those classic cases where people fall madly in lust and then find out two months later that they really can't stand living together. If you don't meet all of those requirements, you may have to go to Court for a very brief appearance.

There are also other cases where the parties don't have to go to court, of course. If you and your spouse are in total agreement on property division and you don't have any kids, you can often accomplish it by mailing in your final documents. If your spouse doesn't fight you on the divorce and the property division is fair, then you probably won't have to go to court.

"I'd guess that probably the most common reason for self-representing people having to go to court is that they failed to document the case properly. Say, for instance, you've got a couple where they've been separated for years and the woman has no idea what kind of property the man may have. She files a petition for divorce and describes her property as best she can and says she should get it, but she doesn't say anything about the husbands' property. The judge is looking at this and all he sees is that one party appears to be getting ALL of the community property, which is not how it's supposed to work. At that point, the judge has to have a hearing to determine what's going on. If she'd just put into her paperwork that she didn't know what he had, but it should be awarded to him, there never would have been a hearing.

The thing to remember here is that judges aren't just crazy about doing extra work. The court systems are clogged, the judges are over-worked, and if there's any way to grant your divorce without having to hear it, they'll go for it."

Antonio B. - Attorney at Law.

Not always. Here's why: a Summary Dissolution requires the FULL cooperation of both parties. You've both got to sign the Petition. THEN you have to wait six months. At any time during those six months, either party can stop the divorce just by filing a form with the Court that says, "I want to stop the divorce." They don't have to prove anything and the case is as dead as a duck.

So the Summary Dissolution can be a real crap shoot. People tend to not be getting along really well when they file for a divorce and they tend to get upset even more while they're waiting for their Court appearance. If your spouse gets mad at you, gets jealous over seeing you out with someone else, or even falls back in love with you, he/she can file that form and blow you out of the water.

The Summary Dissolution is the way all divorces OUGHT to be. Two people acting like adults, coming to an agreement, and ending the relationship as friends. If you are absolutely sure that your spouse is NOT going to change his or her mind, if you both want the divorce and you're really cooperating with each other, then go for it. Otherwise, don't waste your time and money.

"The summary dissolution is an odd development. It's almost as if they made a real stab at putting together an easy, fair system for people who really don't need a complicated legal system; then at the last minute they said, 'Ooops, that might be TOO easy, how can we screw it up?' Still, it's so much simpler than a normal divorce that I can't imagine not using it if you qualify."

Pete K. - Attorney at Law

It's still pretty easy in California, especially if you both agree on the divorce. Just think of it as the, "California 3-Step."

1 - You file your paperwork with the Court, asking for the divorce and telling the Judge how you think your property should be divided and what you should happen with the kids, if you've got any.

2 - You have to prove that your spouse has been notified of the divorce and that they've been fully informed of the property you own.

3 - You take or mail your paperwork into the court, or you go into Court for a very brief appearance and you finish it up.

In any Court case in the United States, the other party has a right to know about it in advance so they have a chance to prepare a defense. In the old days of the colonies, the English actually used to try people and find them guilty without even telling them they'd been accused. So, we've got it built into our legal system that everyone has the right to know and that you have to prove that they know.

"California actually has one of the easiest systems for proving that the respondent's been notified. Most states require that you have an impartial third party serve the papers on the respondent. In California, you can even have a relative hand them the papers and swear that they know about it. Hell, you can even have your lover whom you left your wife for hand her the papers. People with an obvious interest in the case. When I first started practicing here, I couldn't believe it. It's bizarre."

Julia T. - Attorney at Law

1. - You have the divorce papers served on your spouse by a neutral third party, which can be a friend, relative, process server, or deputy. That's the way that most people do it.

2. - Your spouse may file a response when he/she finds out you've filed for a divorce. That proves that your spouse knows about the divorce. In your average, low key divorce, that won't happen because the court charges a filing fee to file the response and many people don't want to pay the money.

3 - You can give the papers to your spouse, along with an acknowledgment form, which basically just says that they know about the terms of the divorce. They sign the form and you file it with the court. Now, the problem with that is that in some counties they hit you with yet another filing fee, because they consider the acknowledgement form to be a form of a response from your spouse. If your spouse is in the military overseas (or even a civilian contractor attached to the military overseas) you HAVE to use the acknowledgement form, but there's no filing fee when you use it in those circumstances.

4 - You can use a Marital Settlement Agreement, or MSA. This is a document which you both sign, outlining how you want your property divided, etc. It also acts as proof that your spouse knows about the divorce. People use them most commonly when there's a lot of property to divide or they're dealing with child custody and alimony. They're also frequently used when the Respondent files a response to the divorce petition but the two parties don't want a big court fight. The disadvantage to them, again, is that some counties consider them a response and charge an extra fee to file them. (Obviously, if your spouse has already filed a response, that fee's already been paid.

"The statistics I've kept indicate that most respondents will agree to the divorce eventually, so I encourage my clients to start their cases on that basis. Have the papers served and then wait for the dust to settle."

Don W. - Attorney at Law

Not at all. MOST people have the papers served. We mention this only because some lawyers use that as a con to get higher fees out of their clients. They pretend that if they have the papers served it's automatically a contested case, and, of course, contested cased cost more money. Unless your spouse files a response with the court, it is NOT a contested case.

"Well, if your spouse won't sign the acknowledgment, then our fees for contested cases will apply."

"But she hasn't hired a lawyer."

"Yes, but it's lost the flavor of an uncontested case."

"What the hell is a flavor?"

"You know . . . the feel."

"Uh, huh . . ."

- Interview with Amanda A., Attorney at Law

California law says that they can be served by any disinterested third party over the age of 18 who isn't you. Does that mean that your old Uncle Joe can toodle up to your spouse's house and hand him/her the papers? Yep . . . but it's not a good idea. If anything goes wrong with the case down the road, you want to be able to say that your spouse was properly served. The best way to do that is to hire a licensed process server or a deputy sheriff to serve the papers. That way there can't be any question about them being notified.

Another way to have the some of the papers served is to have a third party mail them, postage paid. Then the third party swears they've been sent to your spouse. Again, you're much better off using a process server if you can.

Yes, you can, if your spouse is willing to cooperate and sign the papers for you. If they won't cooperate, you have two options. If it's a fairly serious case involving children or considerable property, you can wait until they return to the States and have them served. If there are no children or property, you can make his or her life miserable by constantly contacting First Sergeant's and C.O.'s until the service member is, "counseled," to get a divorce for the sake of his/her career. And that's especially true if you haven't been getting your spousal support. It's unfortunate, but there is a con among certain service members where they get married to a naive civvie just before they go overseas and then collect the support for themselves.

"When they revised the Soldiers and Sailors Civil Relief Act they really tightened up on that. It used to be that you could have a service member served by registered mail when they were overseas. If they didn't respond by asserting their rights under the Act, then you could go ahead and get the divorce. Not anymore. You've GOT to have a signed acknowledgment from them."

Martha T. - Attorney at Law

California law allows for payment of alimony. Not everyone gets it, though. The longer you've been married and the more you've sacrificed for the marriage, the more likely you are to get the alimony. See our section on alimony for more details.

"The general rule on that is one-half of the length of the marriage, if you have a marriage of long duration. In other words, if you've been married for 20 years and then you get divorced, the alimony can go on for 10 years. Even at that, the judge has the discretion to order it to go on even longer than half of the marriage time, if he thinks it's appropriate."

Antonio B. - Attorney at Law

Yes, either party to the marriage can have their name changed as a part of the divorce. In the old days, Judges were sometimes hesitant to do this in cases with children, because they figured that mothers should have the same name as their children. Now, under the Family Code section 2081, Judges are specifically forbidden to refuse a name change for that reason. (Note: name changes aren't available for legal separations.)

Sometimes. If the Judge is convinced that there's a real chance of the marriage being saved, he can order you to go to counseling for up to 30 days and the divorce can't be granted during those 30 days. Most Judges are a little hesitant to do that. They've seen enough cases to know that by the time you file papers, most marriage counseling is actually divorce counseling.

"Yeah, it can happen. Say you file for divorce on the grounds of incompatibility with no chance of reconciliation with your spouse. Your spouse can file a petition in the family conciliation court saying that there IS a chance for reconciliation. They don't even have to pay a filing fee to do it, and they can get free help in preparing their petition. Then you have to go to a hearing and if the court thinks there's a possibility that you could reconcile, they can order you to go to counseling for up to 30 days after the hearing. If you haven't filed for divorce yet, then you can't do it for those thirty days. If you have filed, then you still have to do the 30 days of whatever the court orders.

Mainly that was set up to deal with cases with children and /or family violence, but the conciliation court has the latitude to accept any case it wants to." - Julia T. , Attorney at Law

Well, the Courts are clogged and a Judge's time is valuable. If you and your spouse just plain can't agree, the Judge can order mediation. The two of you sit down with a third party who's a professional mediator and try to hammer out a compromise. If you still can't come to an agreement, then you go into Court and fight it out.

In some counties, you may be ordered into mediation as a part of the local process. There are three main areas that they focus on for the most part: child support and visitation, temporary spousal or child support, and maintenance of health insurance.

In California, it takes 6 months. And that's not 6 months from the day that you file. That's 6 months from the day that your spouse either signs the acknowledgment or is served with the papers.

The Petitioner is the person who files for the divorce. The Respondent is the person who is responding to the filing, i.e. the other spouse.

Well, technically you're still married, so technically you shouldn't. Let's face it, though, many people do. It's a time in a person's life when they're trying to see if they're still desirable and when many people want to go out and be happy. It's understandable, but do be cautious about it. Just because you're getting divorced, it doesn't mean that your soon to be ex isn't still jealous and possessive. It's in your best interest to keep things cool until the divorce is granted. So, if you just have to go out, try to take your date to another town. Don't go to the same places that you went to with your spouse, unless you're real eager to run into her/him or her/his best friend.

"I had a client not too long ago who came in for a regular, uncontested divorce. No houses, no children, not a hell of a lot of property. The husband was one of those real macho guys, so the property division was pretty clear: he gets the boy toys like the speed boat and the motorcycles and she gets the rest. Everything's going along with no problems and then she decides to go out for a few drinks. And she goes to the same bar that he goes to. The long and the short of it is that he catches her in the back seat of her car with a stranger with no shirt on. And the whole thing blew sky high. He had an attorney by ten o'clock the next morning." - Don W. , Attorney at Law.

Every superior court in California is supposed to have a family law facilitator. The position evolved out of two pilot projects, one in Santa Clara County and the other in San Mateo County. What they were trying to address was the fact that the courts were clogged and many people - especially people representing themselves - weren't getting an equal shot at justice. They attempted to address that by making a lawyer, paid by the counties, available to people who needed help with their paperwork, with mediation, and with dealing with issues of child support and spousal support.

In doing that, they found that they were able to save a substantial amount of money, and they were able to relieve some of the burden on the courts. As a result of their findings, California passed the Family Law Facilitator Act. In a nutshell, it says that each superior court will keep a family law facilitator on staff to assist you.

In theory, this should be a terrific asset. It should mean that you're able to go into your family law facilitator and have your paperwork checked before you file it, and ask any questions you may have about the process. Results may vary by county, but it's worth checking it out.

One attorney described the California divorce system as, a wolf in sheep's clothing. On the surface, it looks as if it's been set up to help people do their own divorces. The lengthy documents full of legal mumbo jumbo have been mostly eliminated and replaced with simple check box forms. California actually invented the no-fault divorce system, pioneering a form of divorce that allows you to end your marriage without smearing each other's reputations in long court battles. California even has self-help centers and family law facilitators to help you through the process.

Unfortunately, the, simplified forms have multiplied like the leaves on a tree. Just figuring out which of the many dozens of them apply to your case can be a major challenge. And, if you do figure that out, finding instructions for filling them out is another hurdle. Which one of the many boxes on each form do you actually check?

Despite being a no-fault state, California has a fairly lengthy waiting period: six months from the date your spouse is served with the divorce papers. Most lawyers will tell you that the longer the wait, the more likely it is that people will get into a fight and agreements will break down.

And, the system itself frequently conspires against people doing their own divorces. Over-burdened court clerks may use local rules to harass, rather than help, you. One study found that if you are representing yourself, you are actually more likely to be assigned to judges with very little experience on the bench. And inexperienced judges are frequently difficult to deal with, even for lawyers.

Its important, then, to gather as much information as you can before you start the divorce. The more you understand about how the system works, the less likely you are to end up in an expensive court fight.

The action that actually gets your divorce started is filing the petition of dissolution of your marriage. That's a form that tells your story in legalese. It says who you are, where you live, the fact that you and your spouse have become incompatible, and whether or not you have children. There are also, attachments to the petition that describe such things as property and debts, and child custody and visitation.

NOTE: Most of this discussion involves a normal divorce. If you've been married for a relatively short period of time and you have no children, you should look at the section on Summary Dissolution and see if you can use that much simpler method of divorce.

Now, in many states, filing the petition also starts the waiting period running. In Texas, for instance, you can obtain your divorce two months from the date you file. California, however, uses a different approach. The waiting period doesn't start running until your spouse has been officially notified of the divorce. In other words, you can file for divorce and if you still haven't notified your spouse a year later, your six month waiting period still hasn't started running.

Those are actually the first two steps in most divorces in this country: file your petition, and notify your spouse. The third step in most states is to go to court and get the divorce. But, here again, California is different. California wants you to exchange financial disclosures with your spouse, before you can get the divorce.

In many states financial disclosures are never used, except in the most contested of cases. You file your petition for divorce, saying who gets what property, you prove your spouse has been notified, and you go to court and get your divorce. BUT . . . if your spouse thinks you're up to something rotten - say hiding a few thousand in a secret bank account - he or she can hire a lawyer and force you to disclose, under oath, everything you own and how much it's worth. That's called the discovery process, and its a big pain in the butt. It usually involves many hours of the lawyer's time and tons of paperwork, which is why lawyers love it and clients hate it.

In California, it's mandatory even in the most uncontested cases. That doesn't mean that you have to hire a lawyer, but you do have to fill out some fairly lengthy forms and serve them on each other. State law says that you're actually supposed to serve them on each other twice: once at the beginning of the divorce and again at the end. However, in some cases you're allowed to waive the second disclosure.

So, that's the third step in the normal California divorce. The final step, of course, is getting your judgment and ending the marriage. At the end of the six month waiting period, you fill out your final paperwork and take it into the court. If everything's gone smoothly, your divorce can even be granted without a hearing: they just mail out the final judgment to you and your spouse and you're on your way.

One of the things that can't be stressed too much in a California divorce is to try to cooperate with each other on the divorce. NO ONE wins in a contested divorce, except the lawyers. The more you can communicate with each other about how to end your marriage, the less you'll have strangers making decisions for you.

In division of property, for instance, the judge is going to have very strict guidelines that he/she has to follow in a contested divorce. The judge will aim for an almost exact 50/50 split of all property and debts, and he/she will have no real knowledge of what you use or what you need. On the other hand, if the two of you sit down and divide the property your selves, you're much more likely to end up with the property that you actually want and the debts you can actually pay.

If you're at a point in your lives where you just absolutely can't communicate with each other, you might consider hiring a professional mediator to help sort things out. Yes, its an extra expense, but it's much less expensive than hiring two lawyers for a contested case.

California places great emphasis on the date that you actually separate from your spouse. The reason for this is that anything that you acquire after the date of separation is your own separate property, not community property owned by both spouses.

And that can be extremely important. It's not at all unusual for people to make a fair number of purchases after they split up. Perhaps the couple shared one car, and one of the spouses goes out and buys a new vehicle. Perhaps you're setting up your own apartment and you buy stereos, computers, furniture. If your spouse decides to fight you on the divorce, you need to be able to establish that you had actually separated when the purchases were made, or he/she may be able to make a claim on them.

Now, in many scenarios, theres no problem with establishing the date of separation. If you've moved out, rented your own place, set up your own utility connections, and opened new bank accounts, that all goes a long way toward proving that you had actually split up.

But, there can be some problems. Suppose that you move out, get your own apartment and then you file for divorce six months later listing the date you moved out as your date of separation. Then your wife or husband comes back and says, "No, we never intended to end the marriage. It was just a trial separation because we were having some hard times and needed a little space from each other." How do you prove that he/she isn't telling the truth?

Here's another example: many people file for divorce, but go on living with each other during the period that they're waiting for the divorce to become final. Perhaps it's because of economic reasons. Perhaps they want to go on spending time with their kids for as long as they can. They consider the marriage ended and they cease having sexual relations. They consider the day that they started sleeping in separate bedrooms as the date of separation. Suppose one of them falls back in love and says that they've been having sexual relations all along and that he/she never intended to end the marriage. There is a valid assumption that if a man and a woman spend the night together, they're probably having sex, so how do you prove that you weren't?

Well, the courts in California have generally looked at a couple of factors in questions like this. First, there has to be that feeling on at least one person's part that the marriage has totally broken down and there's no hope of putting it back together. That's the essence of the no-fault grounds for divorce: incompatibility with no hope for reconciliation.

Second, one of the parties has to be moving things toward ending the relationship permanently. In other words, you can't just file for a divorce, shack up with your spouse, and do nothing further. You have to be actively pursuing the divorce and acting like you want it over as quickly as possible. File the petition, serve the papers on your spouse, file the proof of service, exchange the financial disclosures. Stay on a time line that keeps you moving toward the divorce, and that establishes public proof of the fact that you're moving it forward.

Of all of the forms that you deal with in your divorce, none is more important than the first one, the petition for dissolution. It sets the tone of the divorce going in.

In order to really understand that, you have to be able to put yourself in your spouse's place for while. Imagine that you've had that conversation where your spouse tells you that he/she wants a divorce. And, you've been pretty civilized about it and he/she has promised that youll get a fair portion of the property. So, a few days go by and you get a copy of the petition in the mail and it says nothing about who's going to get what. It just says that your marriage has broken down and that your spouse wants a divorce.

But, that's exactly what happens in a lot of divorces. And the reason it happens is that the petition for divorce - just by itself - is not a very good document. It just says who you are and why you want a divorce, and that does nothing to reassure your spouse that you're going to treat them fairly. In order to go in to some detail about what your proposing - who's going to get the house, car, furniture, etc, - you have to use other forms, which are called attachments to the petition.

When you file your petition, use the property attachment, use the visitation attachment if you have children. Don't just file the single petition form and expect that your spouse is going to trust you. Be as specific as you can possibly be about what he or she is going to be getting in the divorce. The more you do that, the less chance you'll have of an expensive, contested divorce.

If, "honesty is the best policy", sounds naïve to you in a divorce setting, consider this: many people consult a lawyer after they receive their divorce papers. Many lawyers have free consultations where you can bring the initial paper work in, they look it over, and they tell you if something doesn't look right. If you don't go into some pretty good detail about how you want to settle the divorce, the lawyer has no option but to tell your spouse that he/she probably ought to file a response and fight. If you have gone into that detail, there's at least a good chance that the lawyer will tell your spouse that it's a fair deal and he/she ought to go for it.

Unlike many other states, California has automatic restraining orders that go into effect the minute that you file your divorce. They're detailed on the back of the Summons, which is one of the initial documents that's sent to your spouse. When you boil them down, they say, "Thou shalt not destroy community property or snatch the kids and leave California.".

There's another type of restraining order that you shouldn't confuse with this one. If your spouse is a real loony tunes and you're afraid of him/her you can apply to the court for what are called ex parte restraining orders. The court issues temporary orders restraining your spouse from threatening you, destroying property, snatching the kids, etc. They usually also have stipulations about temporary child and spousal support. Fairly soon after they're issued, there's a hearing where your spouse gets to tell his/her side of the story and then the judge issues new orders that stay in effect until the divorce is granted.

The first type of restraining order is automatic and applies to everyone who files for divorce in California. The second type is normally only used if someone is in danger or needs an order for support, and it can be very expensive.

One of the major pains in the butt in a California divorce is the financial disclosures. You are required by law to give each other complete financial disclosures at the beginning of the divorce process and again at the end. You can waive the final disclosure if you both agree to it in an MSA, or you can waive it unilaterally if your spouse fails to respond and you file for a default divorce.

When you hear the term, financial disclosure, you may think of a simple little statement along the lines of, "Well, Ive got a car and 500 bucks in the bank." If only it were so. The financial disclosures are pages of details about how much you make, how much you spend, whos living with you and how much they contribute, what your debts are, what business opportunities you may have cooking, etc., etc., etc. Very detailed and very intrusive.

Now, as we said above, these might make perfect sense in a contested case, or in a case where you have a couple of millionaires splitting a huge wad of cash. For us mere mortals, they can not only be a pain, they can actually cause trouble.

Heres an example: when Gwen is young and wild, she falls in love with a rodeo cowboy from Oklahoma named Pete. And they have one hot love affair and they get married. But, after the fire has cooled off a bit, they discover that they really don't have much in common, outside of the bedroom. She likes fresh ground French roast coffee and he sucks down luke warm instant. He likes to drink beer and watch football, and she likes classical music and a good Merlot. She likes her freedom and he's possessive to a point where he follows her around. So, they split up and Pete drifts back to Oklahoma.

For some reason, they never get around to filing for a divorce and five years go by. Gwen works hard, saves a lot of money, buys a house and a new car. Pete . . well, Pete drinks beer and watches football games. Gwen meets a new man, falls in love, and files for a divorce.

So, here's Pete sitting in Oklahoma reading Gwen's financial disclosures. And, Pete doesn't know a damned thing about California law, and about how all of that's Gwen's separate property. All he knows is that she's got a nice looking bank account and, by God, he'd like to get some of that 'cause he's plumb out of beer. Pete hires an Oklahoma lawyer, who also doesn't know a damned thing about California law, they file a response, and Gwen's got a contested, expensive case on her hands.

There's also another little flaw with the financial disclosures which you may have already thought of: what if your spouse refuses to send the disclosures back? You don't need to sweat that one. You just provide the court with proof that you've informed your spouse that he/she is supposed to do it and that you've made diligent efforts to comply with the law.

We've made several references to defaulting your spouse and you're probably wondering what that means. About thirty days after your spouse is served with the summons, you can apply to the court for a default judgment. You're just telling the court that your spouse was served, had every opportunity to respond, and didn't. The court defaults your spouse, with a form that says, in legal terms, "Hey, you blew it."

Why bother? Once the default is issued, it becomes nearly impossible for your spouse to fight you any further on the divorce. Even in a friendly divorce, it's considered good tactics to apply for a default. A lot can change over six months and friendly divorces can turn very nasty, so its good to protect yourself.

If your spouse has filed a response, you can't apply for default. When he/she responds, you've got to deal with him/her from then on. That's the point where you start to negotiate and try to come up with a Marital Settlement Agreement.

At the end of the six month waiting period, you can file for your final judgment of dissolution of marriage. If youve defaulted your spouse or you entered into a Marital Settlement Agreement, and you've done all of your paperwork right, you probably wont even have to go to court. You file the final papers, the judge signs the judgment, and the court mails it out to you.

If you do have to go to court, it's usually not a very big deal. It normally means that theres something in the paperwork that the judge doesn't understand and he/she wants some clarification. You go in for about a five minute hearing, and the judge either goes for your package or not. If not, you correct the paperwork and go back in again.

So, thats the basic time line on a normal California divorce.