Saturday, October 25, 2014

General Information

Type of Case

Dissolution of Marriage (Divorce):

A dissolution of marriage, which is more commonly known as divorce, terminates the marriage of the spouses and resolves issues between them, including child custody, visitation, child support, spousal support, asset and debt division, former name restoration, and even restraining orders.

Dissolution of Domestic Partnership:

Domestic partners are "two adults who have chosen to share one another's lives in an intimate and committed relationship of mutual caring." Persons of opposite sexes may not constitute a domestic partnership unless one or both of the persons are over the age of 62.

Legal Separation:

A legal separation case is similar to a dissolution of marriage or dissolution of a domestic partnership in terms of the range of issues that are resolved in the case, except that the parties remain married or registered to each other.

Nullity:

A nullity case is more commonly known as an annulment of marriage or an annulment of the domestic partnership. This can only be requested based on one of reasons listed below.

Grounds for Termination of Marriage

For dissolution of marriage or legal separation in California, there are only two legal grounds. The first is irreconcilable differences, meaning the marriage or partnership cannot be saved. The other reason is incurable insanity which, unlike irreconcilable differences, must be proven.

If you are seeking a nullity of marriage or nullity of partnership, you will need to prove in a court hearing that your marriage satisfies one of the grounds listed below. These must have applied at the time you and your spouse married or you and your partner registered:

Incest:
incest means the spouses or registered partner are close blood relatives.
Bigamy:
bigamy means a spouse or partner was knowingly married or registered to another person at the time of marriage or at the time of registration of domestic partnership.
Underage:
underage means a spouse or partner was below age 18 years at the time of marriage or registration of domestic partnership and did not obtain parental consent or a court order permitting the marriage.
Prior Existing Marriage or Prior Existing Domestic Partnership:
prior existing marriage or prior existing domestic partnership means a spouse married or a partner registered on the mistaken belief that his or her previous marriage or partnership had ended in the death of the other spouse or partner, who in fact was still living.
Unsound Mind:
unsound mind means a spouse or partner could not and has not formed the intent to marry or registered due to a mental condition.
Fraud:
fraud means deception regarding a significant matter that led to the marriage or the partnership and continued until the breakup.
Force:
force means threats or acts of harm were used to force one spouse or partner into the marriage or domestic partnership.
Incapacity:
incapacity means a spouse or partner was and continues to be physically unable to consummate the marriage or partnership.

Jurisdiction

A dissolution action may be started in Sacramento County if one or both spouses/partners have resided in this county for at least the last 3 months and in the state of California for at least 6 months. Cases involving legal separation or nullity have less strict residency requirements. For legal separation or nullity cases, one or both spouses/partners need only be a resident of this county at the time this case is started. There is no duration of residency requirement for these types of marital actions.

In addition to the residency requirements for starting any type of marital action, there are some additional rules to consider if the other spouse resides outside California. Specifically, a spouse who lives in another state or country can object to jurisdiction by the court in California. In that event, this court may be prevented from making important orders in your case. You should seek legal advice about how to proceed if the other spouse lives outside California and is likely to object to having the case handled here.

Time Frame for Termination of Marriage

Remember that merely filing your petition and having it served does not automatically result in a judgment. There are other steps you must take before this can happen.

The minimum length of time it takes to acquire a final Judgment of Dissolution in order to be free to marry once again is six months and one day from the date the Respondent is served with the Summons and Petition, or, six months and a day from the date the Respondent files a Response or Notice of General Appearance with the court, whichever comes first. If the six-month period passes before you are able to acquire your judgment, then the effective date of your change in status from married to single is the date of entry of the judgment.

The effective date for legal separation or nullity is the day the judgment is entered, that is, the day the judge signs the judgment.

Be aware that a formal judgment signed by a judge must be entered before it is final. Any minute order from a hearing or a trial or a signed agreement without a judge's signature does not terminate the action.

How to Start a Case - Marriage

There are three types of marriage actions which include Dissolution of Marriage, Legal Separation, and Nullity. The forms used to start a case are included in the following packets:

If you have been married or in a domestic partnership for less than five years and have no children together, born or adopted, before or during marriage or domestic partnership, you may file a Joint Petition for Summary Dissolution of Marriage. For more information, you may review local instructions and go to the California Courts' Self-Help Center - external link for additional information and forms.

How to Start a Case - Domestic Partnership

There are three types of domestic partnership actions which include Dissolution of Domestic Partnership, Legal Separation, and Nullity. The forms used to start a case are included in the packet:

You will need Adobe Reader X (10) or later. Download the Adobe Reader - external link.

How to Amend Your Petition

If you would like to amend your Summons and/or Petition in your case, you are allowed to amend one time without permission from the court. For example, if you originally asked for a Legal Separation, but now you would like to change your request to a Dissolution, you will need to amend your forms.

You will need Adobe Reader X (10) or later. Download the Adobe Reader - external link.

How to Serve and File a Response

If you were served with a Dissolution, Legal Separation, Nullity, or Domestic Partnership Petition, you must file a Response within 30 days or risk the other party taking your default. If the other party takes your default, you may not be allowed to file documents or attend hearings in your case.

Financial Disclosure

Before you can get a judgment to finish your case, you must disclose to your spouse/partner the nature and extent of all marital/partnership assets and debts. This is done by completing and serving the Declaration of Disclosure, Schedule of Assets and Debts, and Income and Expense Declaration on your spouse/partner.

If you are requesting a hearing to compel the other party to complete their financial disclosures, you must make a written demand before filing your Request for Order. You may use our sample Demand Letter for this purpose.

If, after making your demand and waiting the specified period of time, your spouse still does not complete his or her financial disclosures, refer to the Completing the Request for Order Regarding Noncompliance with Financial Disclosure Requirements instructions for requesting a hearing to allow you to move forward without your spouse's financial disclosures.

Petition for Joinder (Pension)

When a party to a dissolution or legal separation case has a retirement plan through their employer and the opposing party wishes to join the plan into the case, the following forms are used:

Finalizing Your Divorce

Your marriage or domestic partnership does not automatically end six months after filing your petition. You will need to complete your dissolution action and get your judgment either by default (when the other party does not respond), by written agreement, or by trial.

The most common courses of action for various circumstances are:

  • If the other party did not respond (defaulted), then see an attorney to prepare a judgment, or check the Sacramento County Law Library - external link for self-help manuals.
  • In the event you and your spouse or partner have an agreement on all issues (uncontested) in your divorce, you can have an attorney prepare your agreement and judgment.
  • If either of the following conditions pertain to your case, then it is suggested that you consult with an attorney: 1) your spouse or partner has filed a response, there are contested issues, and you have no written agreement; or 2) your spouse filed the divorce, you responded, and your spouse or your partner refuses to finalize your divorce whether or not there are contested issues.

We highly recommend that you have a consultation with a family law attorney before finalizing your divorce. You may have important legal rights regarding spousal support, pensions or other deferred compensation, or other property rights. It is your responsibility to know your rights before you set your case for trial or you may lose those rights forever.

How to Obtain a Judgment by Default

If your spouse/partner has not served and filed a Response and more than 30 days have passed since he/she was served with the Summons and Petition, you are eligible to proceed by Default. However, a default judgment is not automatic. You must file a Request to Enter Default and proceed to judgment by attending a hearing or by preparing a declaration. To decide which method is right for you, review the following packet:

Obtaining a Judgment When You Do Not Agree

If you do not agree on all issues involved in your case, you may want to have a judge decide those issues. The judge will make a decision on the issues after considering all relevant evidence presented to the court.

When You Do Not Agree with the Memorandum to Set

If you disagree with your case being set for trial pursuant to Local Rule 5.26, you may request a hearing by serving and filing in Department 128 a Notice of Hearing on Memorandum to Set Counter Memorandum (FL/E-LP-605).

Restoring Your Former Name

To have your former name restored after you have received a Judgment of Dissolution, you may use the following packet: