Divorce in California

In a nutshell, there are two methods of obtaining a divorce (known under the California Family Code as a “dissolution of marriage,” or for purposes of this page as a “disso”) in California: 1) a joint petition for summary dissolution; and, 2) a (standard) petition for dissolution of marriage. This page focuses on the standard disso.  For information on the joint petition for summary dissolution, including the limitations to obtaining that type of divorce, please see Summary Disso.
 
Standard Dissolution of Marriage – the standard disso can take three different paths: 1) default dissolution; 2) uncontested dissolution (by the parties’ written agreement known as a “marital settlement agreement” or “stipulation for judgment” as to all issues to be determined); or, 3) contested dissolution (by trial at which the judge determines any issues the parties cannot settle by agreement).  They’re all really the same thing with different procedural methods of bringing the case to judgment.
 
[Note:  The issues to be determined by either the parties themselves or the judge in a standard disso are the following: 1) dissolving the marriage itself; 2) the date of separation; 3) division of the community property: 4) child custody and visitation (if there is a child of the relationship or a stepparent adoption by one party of a child of the other party); 5) child support to be paid by a party to the other party; 6) spousal support (alimony) to be paid by a party to the other; and, 7) payment by one party to the other as a contribution toward attorney fees and the expenses of litigation.]
For information on early adjudication of the dissolution of the marital status, i.e., a status-only judgment, separating it from the remaining issues to be determined in a divorce, see When is My Divorce Final? Bifurcating Marital Status.
 
Default Dissolution of Marriage – this route simply means that the Respondent (i.e., the spouse who received a copy of the filed Petition for Dissolution of Marriage, of the accompanying papers, and of the Summons issued by the Court from an agent of the Petitioner, i.e., the spouse who filed the lawsuit) has not filed a Response within 30 days of being served a copy of the Summons; the Petitioner has then requested in writing that the judge acknowledge the Respondent’s default; and, the judge has signed a Judgment of Dissolution of Marriage (generally prepared by the Petitioner) determining all issues.
 
There are two ways of getting the judge to sign the Judgment of Dissolution of Marriage in a default disso. First, when the Respondent’s default is requested by the Petitioner, the family court will schedule what is commonly known as a default prove-up hearing.  The Petitioner’s brief testimony will be taken at that time, and the judge will sign the judgment proposed and prepared by the Petitioner if all of the issues are addressed appropriately in it.  Or, second way is that the parties can determine all of the issues themselves in a written marital settlement agreement or written stipulation for judgment, and submit it attached to the judgment for the judge’s review and signature.  No default prove-up hearing is required under this method unless an issue to be determined has not been addressed appropriately in the written agreement. What’s more, the Respondent’s first-paper fee to the San Diego Superior Court, currently $435.00, can be avoided by a written agreement attached to the proposed judgment.  For this reason, if spouses do not qualify for a summary dissolution of marriage, but there is no dispute regarding all the issues, then it is much more advantageous in terms of the emotional and financial cost to proceed by default judgment with a written agreement.
 
The time frame between the filing of the petition for dissolution of marriage and the date of divorce depends on when the judge signs the judgment.  Generally, if the judgment is signed before six months has elapsed from the date the Respondent was served with the Summons, then the parties (with certain exceptions) will be divorced to the day six months after the date of service of the Summons.  If the judgment is signed by the judge after the six-month waiting period, then generally the parties will be divorced on the date the judge signs the judgment.
 
Uncontested Dissolution of Marriage – this path simply means that the Respondent has filed his or her Response, and the parties have reduced all of the issues to be determined to a written marital settlement agreement or a stipulation for judgment. This path to a divorce can be quick or drawn out depending on the disputed issues.  For example, disputes involving children will be diverted to Family Court Services (“FCS”) when a party requests either custody or visitation orders. Generally, family law judges cannot make custody and visitation orders prior to diversion to FCS, so that the FCS counselor can focus on the dispute and recommend a parenting plan to the judge.
 
The time frame between the filing of the petition for dissolution of marriage and the date of divorce depends on when the judge signs the judgment and thus when the parties submit the judgment with the attached written agreement.  Generally, if the judgment with the attached written agreement is submitted and signed before six months has elapsed from the date the Respondent was served with the Summons, then the parties (with certain exceptions) will be divorced to the day six months after the date of service of the Summons.  If the judgment with the attached written agreement is submitted and signed by the judge after the six-month waiting period, then generally the parties will be divorced on the date the judge signs the judgment.
 
Contested Dissolution of Marriage – this road is the same as the uncontested dissolution of marriage except that at least one of the issues that must be determined in a divorce has not been reduced to a written marital settlement agreement or written stipulation for judgment between the parties, that settlement negotiations have been exhausted, and that the judge must determine the disputed issue(s) at trial.  At any time between the time of the filing of the Petition for Dissolution of Marriage, the parties can change a perceived contested dissolution of marriage into an uncontested dissolution of marriage by simply reducing the unsettled issues to a written agreement, attaching it to the judgment and submitting it for the judge’s review and signature.
 
Trial of simple issues can be scheduled at a status conference or a Family [Case] Resolution Conference (a meeting between unrepresented parties, or if either is represented then with the party’s attorney, and the judge usually about six months from the date of filing of the Petition for Dissolution of Marriage). Theoretically, at least, a trial of simple issues might take place eight to twelve months from the date of filing of the petition.  In practice, however, because the family courts are so backlogged, a judicial determination of simple issues realistically may take up to a year to a year and a half or more before trial begins.
 
Unfortunately for litigants’ sanity and their pocketbooks, the family courts are overburdened and struggling with case management.   A trial may not occur for several years if the issues are complex and lengthy testimony will be required, if high conflict exists (meaning at least one of the parties does not want to give up the relationship for whatever reason(s)), or if a party simply wants to “win” at the expense of the other. (This latter scenario as just another example of high conflict – between family members there really is no winner in family court if you think about it.  The only people who “win” at that game are the attorneys, and by and large it is only after each party finally realizes this simple fact that a contested dissolution changes to an uncontested dissolution.)  For these reasons, the overwhelming majority of divorce cases in California settle before trial.
 
Many times, the emotional value of getting the divorce over with begs for the dissolution of the marriage before judgment on other disputed issues.  A party may file a motion to bifurcate and try the issue of the marital status, alone or in combination with any other issue (e.g., the date of separation) that might be better tried earlier rather than later in resolving the remainder of the disputed issues.  The family law judge invariably grants these motions, if appropriate, and then sets the issue of marital status for trial after the six-month waiting period has elapsed.  For information on bifurcation of the marital status, please see the “Divorced When?” page.
 
Restoration of Former Name
 
Family Code section 2080, effective January 1, 1994, requires that in a “proceeding” for dissolution of marriage (divorce) or nullity (annulment) the family court must restore the birth name or the former name of the requesting party, even if the request is not included in the petition. This lays to rest three issues:
  • Only the party requesting the name change can have his or her name changed. For example, an indignant husband cannot request that the family court change the name of the other party to a divorce proceeding , i.e., his wife, so that she stops using his last name.  She alone (or by agreement of the parties) must request that the Court restore her birth name or former name.
  • Granting the request of a party to change his or her name is mandatory, not discretionary.
  • If a party initially decides not to change his or her name and files the petition without requesting a restoration of his or her former name (e.g., when a mother is hesitant to change her name to one different from that of her children), the petition does not have to be amended to request the name change.  The request must be granted despite its absence from the petition.
Family Code section 2081, also effective January 1, 1994, specifically addresses the scenario where a family law judge denies a name change to a parent because a minor child of the parties would have a different name if the judge changed his or her parent’s name.  The family law judge cannot deny the request for that or any other reason except for fraud.
 
Surprisingly, prior to the 1994 changes, case law held that restoring a birth or former name was discretionary with the family law judge, not mandatory, and either party could request that the name of the other party be changed.   A typical scenario was one in which the family law judge refused to change a parent’s name if his or her (usually her) children would then have a different name (see Marriage of Banks (1974) 42 Cal.App.3d 631).
 
The issue remains whether a request for restoration of a birth name or former name will be granted on a post-judgment request, i.e., after the divorce and all other issues have been determined.  It appears safe to assume that the request must be granted (where no fraud exists) regardless of whether the motion is filed before or after judgment. Otherwise, the statute would have specifically addressed this issue.  More importantly, the term “proceeding” is given the same status as the term “action” under Family Code section 110.  An action is a proceeding “by which one party prosecutes another for the declaration, enforcement, or protection of a right . . .” under Code of Civil Procedure section 110.

Hence, because the family court generally always has jurisdiction to enforce a final judgment from a dissolution of marriage or annulment, with certain exceptions it must grant a party’s post-judgment request that his or her birth or former name be restored unless the request is based on fraud.