The length of time it takes to get a divorce depends on how well the parties cooperate and work together to reach an agreement. Parties to a divorce case can reach a full, written agreement resolving all issues in their divorce case any time. An agreement can be filed with the court after the parties have exchanged their Preliminary Declaration of Disclosure (i.e. financial documents). An agreement could occur at the outset of the case. The parties’ agreement can be filed and can become an Order when signed by the judge. All parties to divorce have to wait a minimum of six months and one day from the date the court obtained jurisdiction over the parties before the divorce can be “final” in terms of severing the marital status. Cases can take much longer when parties do not cooperate and cannot agree on settlement.

There are 2 grounds for Marital Dissolution in California:

Irreconcilable differences; and

Permanent legal incapacity to make decisions

In California, a party cannot be divorced any sooner than six months and one day after the other party is served with the Summons and Petition for Dissolution of Marriage.

That does not mean that a party is automatically divorced on that magical date. It merely reflects a “waiting period” that dictates that the final divorce cannot be accomplished any sooner than that date.

Many other factors dictate how long or how short the divorce can take from beginning to end. Assuming both parties can agree on terms and meet other procedural requirements, the divorce could theoretically be final after that initial waiting period. However, often it takes longer due to the exchange of information (formal discovery) and due to the lack of cooperation by either party in providing mandatory Declarations of Disclosure regarding the parties’ assets, liabilities, income and expenses.

The level of contentiousness can also serve to delay the conclusion of the divorce. To the extent that family law litigants can cooperate and agree on the issues in their matter, the less time it will take to complete the divorce. Being organized and producing documents and information in a timely manner will also aid in “shortening” the time it takes to conclude the divorce.

In California, it is possible to “bifurcate” the issue of marital status from the remaining issues in the case and to obtain a divorce before the other issues such as support, custody and property division are resolved. This too requires that Declarations of Disclosure have been exchanged. The parties may stipulate to the termination of marital status, or one party may file a motion with the Court; such motions are routinely granted such that stipulations are more often utilized. It is wise to consider two of the primary effects of terminating marital status: the inability to file joint tax returns and the impact on health insurance, once the parties are no longer legally married.

A party should consult with his or her attorney if considering an early termination of marital status.

A contested divorce is one in which the parties are not able to come to an agreement to resolve the issues. A contested matter is litigated in court in front of a judge and the judge will ultimately make a decision (a ruling) on each issue presented.

An uncontested divorce is one in which the parties are successful in negotiating a resolution to all of the issues relating to the divorce including: custody of the children, support, division of property and attorney’s fees. An uncontested divorce can be accomplished by preparing the required paperwork and filing it with the Court. If a party so chooses, he or she never needs to step foot in a courtroom to complete the divorce process.

No. The reason the marital relationship broke down is of no consequence with regard to how the marital estate is divided and the assets are distributed between the parties. No fault means that the court will attempt to divide the marital community property assets and obligations equally between the parties irrespective of the reasons for the divorce.

No. The first party to file is called the “Petitioner”. Once the other party is served with the Petition for Marital Dissolution, the party served has 30 days in which to file a Response to the Petition. That party filing the Response is called the “Respondent”.

No. An attorney can only represent and advocate for one of the parties. It would be a conflict of interest for one attorney to represent both parties in a marital dissolution action. However, one attorney can act as a “Mediator” for both parties. In the “mediator” capacity, the attorney is not the advocate for either party, but serves in a neutral capacity to help guide the parties to a resolution of the issues in their case.

Yes. The Orange County Bar Association provides a service for the resolution of attorney-client fee disputes. Additionally, a civil suit can be filed by the client in the Superior Court.

No. However, you may lose the ability to continue to reside in the home if the issue goes to court. Leaving the marital residence may also prejudice your rights with respect to issues of custody if the children are residing in the residence. Before moving out of the residence (absent a legitimate fear of your safety), you should first consult with an attorney to evaluate the particular facts of your case.

Yes. However, trust and confidence in your attorney is the mainstay of the relationship, and if you have second thoughts or have lost confidence in your attorney, it is probably best to consider hiring different counsel.

No. Your spouse’s lawyer under the California Rules of Professional Conduct is precluded from having any direct communication with you unless your attorney has given your spouse’s attorney express written consent to the communication.

Yes, your lawyer needs to know the whole truth in order to effectively and competently represent your interests. Remember, whatever you tell your attorney is strictly protected by the attorney- client privilege and cannot and will not be revealed to anyone.

If there is a court order in place re: child and spousal support, the order must be followed until it is either modified by written agreement (i.e., via a Stipulation and Order signed by the parties and filed with the Court), or by Court order in a judicial proceeding. The act of an ex-spouse living with a significant other has no real impact on the payment of child support. However, with respect to spousal support, Family Code Section 4323 sets forth that “…there is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabitating with a non-marital partner. Upon a determination that circumstances have changed, the court may modify or terminate the spousal support…”). The mere fact that a former spouse is living with a significant other does not, in and of itself, dictate that spousal support will be modified lower or terminated but does mean that, upon application of the supporting party and sufficient proof of said cohabitation, the burden shifts to the supported spouse to rebut the presumption of reduced need.

Child support is modifiable until such time that the obligation to pay child support is extinguished. Child support can be increased or decreased upon a showing that a change of circumstances has occurred since the entry of the governing order. For example, a loss of the employment position upon which the child support order is fashioned would likely lead, at least for a short period of time, to a significant reduction in the child support order (so that the payor can reasonably find gainful employment and a new child support order can then commence).

Typically no. The guideline child support calculation is based on each party’s respective income and custodial timeshare percentage (i.e., the time each parent is designated as the child’s custodian pursuant to the terms of the custody and visitation order).

Legal custody is the right to make decisions about a minor child’s health, safety, education, religion, welfare, etc. Physical custody is the actual time a parent spends exercising custody and control over a minor child.

It is possible to move outside the county or even the state with children if permission is granted from the other spouse or a court Order is obtained.

Yes. The Family Code sections require that the forms be completed and served on the other party. They must be signed under penalty of perjury so they must be as complete (with backup) and accurate as possible.

This question is impossible to answer as it depends on the position that your spouse takes with respect to the issues involved, which may be dictated by the attorney he/she hires.

The overriding issue in determining who pays legal fees and how much is based on your/your spouse’s relative financial circumstances. There are other factors that come into play such as reasonableness of fees incurred, whether one party’s conduct caused fees to unnecessarily increase and reasonableness of the fees incurred but the relative financial circumstances is the most significant criteria.

No, it is not true that the only way to ensure that you’ll get your fair share in a divorce is by going to Court.

Most often, court is a place of last resort. These days, budget-strained courts are overloaded with family law cases, many involving self-represented individuals. The vast majority of divorce cases are settled without the necessity of going to court, through a process of informed negotiation, in an effort to achieve a fair result for both parties.

Any issues relating to a divorce such as custody, support, property division and attorney’s fees may be negotiated and agreed upon by the parties and their counsel. The parties would still engage in some type of discovery process whereby the assets, obligations and incomes are determined. Once an agreement is reached, a Stipulated Judgment for Dissolution of Marriage (along with other required forms) is prepared and circulated between the parties and counsel for signatures. Thus, if they can agree on all terms of a settlement, the parties can achieve a fair resolution of all issues without ever going to the courthouse.

The benefits of this are many. No one is in a better position to understand what the best outcome is for a family than the parties themselves. Solutions can be more creative in a negotiated setting as opposed to asking a Judge to make a decision that may not be what either party ultimately wants. It is more cost-effective to resolve the matter in this fashion and because the parties actively participate in achieving their own resolution, the outcomes are often more desirable, and implementation of the agreement is more successful than if the result had been imposed upon the parties by the court.

Yes, all family law issues are capable of resolution through mediation, including the issue of child custody.

Often, the more contentious and emotional the issue (as is often the case with issues concerning minor children), the better suited the issue is for resolution through mediation. That is because the mediation process lends itself to creative problem-solving, taking into account many of the intangible issues and underlying feelings that serve to fuel the dispute in the first place.

The reality is that our court system is over-burdened and under-funded, and despite the best efforts of dedicated judicial officers, the court is not able to devote as much time to each family law matter as the parties would like. There are simply not enough resources.

That leaves the opportunity for creative and cost-effective problem-solving up to the parties themselves. As a result, mediation is becoming an increasingly popular choice for family law litigants who seek to expeditiously and economically resolve their issues.

Not all mediators are created equal.

First, it is important when choosing a mediator that he or she is trained in mediation. That may sound obvious and over-simplistic, but because (unlike for attorneys) there is currently no licensing requirement in the State of California for mediators, anyone can “hang out a shingle” and call themselves a mediator, including non-lawyers.

Second, it is extremely desirable that the mediator be credentialed and well-versed in the subject area of the mediation. For family law mediation, that would mean choosing a family law mediator who is deemed by The State Bar of California Board of Legal Specialization to be a Certified Family Law Specialist.

It is often critical to the success of a negotiated outcome that both parties fully understand the issues presented for resolution. That includes the legal issues that potentially would be litigated if the mediation fails.

While it is clearly never the mediator’s role to advise the parties of “what to do,” it is helpful for the parties to have a basic understanding of the potential significance of a legal issue, were the matter to be litigated in court. It is often helpful to a family law litigant during mediation to have a realistic view of the range of possible outcomes. This is where a trained mediator, specializing in family law can be invaluable.

Accordingly, when selecting a mediator for a family law matter, it is most often beneficial to utilize the services of a Certified Family Law Specialist.

No, the mediator is a third-party neutral whose role is to assist the parties in reaching a mutually-satisfying resolution to their issues.

The mediator is never permitted to “take sides” with one party against the other. The mediator acts in the role of a facilitator, not an advocate. Often, parties in mediation will each have counsel who can advise him or her as they go through the mediation process. The party’s attorney is the advocate. The mediator has no stake in the outcome and her role is strictly designed to help the parties reach a resolution of their dispute.

If a party believes that a mediator has lost objectivity and neutrality, the mediation will likely not be successful.

The benefits of family law mediation are many. First, it is an appreciably more cost-effective way to process and conclude a divorce. In litigation, costs often escalate in direct proportion to the level of contentiousness between the parties. While parties in mediation are seeking to further their interests and achieve certain goals, they are doing so in a more cooperative fashion than their litigation counterparts. This cooperative approach keeps costs down. Cooperation does not mean “giving in”. Rather, both parties seek to achieve his or her respective goals collaboratively, rather than combatively, and this has the added benefit of reducing the emotional impact during the process.

Mediation is also designed to afford the parties with the optimum level of input and control in fashioning a desirable outcome. Settlements can be creative and may provide for terms that would not otherwise be achievable from a judge. Contrast that with taking the matter to court and having a complete stranger decide the fate of the parties and their children, and doing so in an environment that is often hampered by delays and severe time constraints. It has also been shown that when parties work together to formulate an agreement on their own, it is more likely that the implementation of their agreement will be more successful that if it had been imposed upon them by a court.

One of the hallmarks of mediation is its confidential nature. In order to provide a forum conducive to the resolution of private disputes, candor of the parties is essential. Toward that end, there are strict rules in California regarding the sanctity of the discussions in mediation. This is designed to encourage openness and honesty in an individual’s efforts toward resolution and that openness might be lessened if a person’s words could be used against them in court. Thus, the substance of those discussions cannot be revealed during a litigated proceeding at court.

Mediation often results in a faster resolution of the disputed issues. As we have seen more and more recently, due to state budget cuts and other constraints, the time available for a judicial officer to hear a party’s matter is quite restricted. It is often the case that the matter is settled during the time that the parties are waiting to get to a hearing.

In summary, family law mediation is often a faster, less costly and more satisfying alternative to litigation as a means to resolve any and all family law issues.

You should begin making arrangements for your prenuptial agreement as far in advance of your wedding as possible. There are several cornerstones for an enforceable premarital agreement, one of which is a fair, reasonable and full disclosure of the property and financial obligations of each party. You and your fiancé should each have independent counsel engaged in negotiating the agreement from the outset. You should each discuss your objectives with your respective attorneys. Typically, but not always, one spouse is clearly advantaged by a premarital agreement which alters the law as it relates to spousal support, property acquisition, characterization of property (community vs. separate) and the division of assets or allocation of debt. Nevertheless, you and your fiancé should endeavor to be fair to each other because unconscionable agreements are subject to challenge.

A well-crafted premarital agreement adds certainty and predictability to the resolution of issues arising upon the dissolution of your marriage should that occur. Avoiding the stress and uncertainty of litigation is a significant benefit. Remember, however, that it is only natural that you and your fiancé will view each other differently at the time of divorce than you do when planning your marriage and negotiating a premarital agreement. Additionally, the circumstances existing at the time of dissolution may be far different at each of those events. Both of your expectations may be greatly different as well. Some premarital agreements build in alternative provisions based upon the length of the marriage or specific changes and circumstances.

Well drafted premarital agreements are generally enforced in our courts. Nevertheless, their enforceability and validity are often challenged by the disadvantaged party. Challenges are often made regarding the formalities of the agreement, the voluntariness of its execution and the fairness of its provisions. It is therefore important for you and your fiancé to each engage counsel experienced in the negotiation and drafting of these agreements. A negotiated agreement is far more likely to be enforced than one signed as a take it or leave it proposition.

No. California has been a “no-fault” state since 1970. As such, fault is no longer grounds for divorce in California. The law is clear that any community property belonging to the parties will be equally divided between them.

No. However, you may lose the ability to continue to reside in the home if the issue goes to court. Leaving the marital residence may also prejudice your rights with respect to issues of custody if the children are residing in the residence. Before moving out of the residence (absent a legitimate fear of your safety), you should first consult with an attorney to evaluate the particular facts of your case.