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 (traditional, for lack of a better word) petition for dissolution of marriage. This page focuses on the traditional disso. For information on the joint petition for summary dissolution, including the limitations to obtaining that type of divorce, please see Summary Disso.
(Traditional) Petition for Dissolution of Marriage
The traditional disso can take three different paths: 1) default dissolution; 2) uncontested dissolution (by the parties’ written agreement known as a “marital settlement agreement” (MSA) or a “stipulation for judgment,” essentially identical to the MSA, or 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). Each results in the same ending but with different procedural methods of bringing the case to judgment.
[Note: The seven (issues) issues to be determined by either the parties themselves (or the judge if the parties cannot settle one or more of the issues) in a traditional 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 the summons issued by the Court from an agent of the Petitioner, the spouse who filed the lawsuit) has defaulted, i.e., has not filed a Response to the Petition for Dissolution of Marriage within 30 days of being served (hand-delivered) 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 procedural methods which result in the judicial officer (whether a judge or commissioner) signing 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 required to prove-up his or her position on all the issues to be determined in a dissolution of marriage, and the judicial will sign the judgment proposed and prepared by the Petitioner if all of the issues are addressed appropriately in it.
The second way is that the parties can determine all of the seven (7) issues themselves in a written MSA or written stipulation for judgment, and submit it attached to the judgment sheet, along with other required documents for the judicial officer’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 can be avoided by a written MSA or stipulation for judgment 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 and time delay to proceed by default judgment with a written agreement.
The time frame between the filing 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 on the day which is six months after the date of service of the Summons. If the judgment is signed by the judicial officer after the six-month waiting period, then generally the parties will be divorced on the date the judicial officer 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 MSA 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 court judicial officers cannot make custody and visitation orders prior to diversion to FCS (unless a year has passed since the last diversion to FCS), so that the FCS counselor can focus on the dispute and recommend a parenting plan for the judicial officer to review.
The time frame between the filing the Petition for Dissolution of Marriage and the date of divorce depends on when the judicial officer 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 on the date which is exactly six months after the date of service of the summons. If the judgment with the attached written agreement is submitted and signed by the judicial officer after the six-month waiting period, then generally the parties will be divorced on the date the judicial officer signs the judgment.
Contested Dissolution of Marriage
This path is the same as the uncontested dissolution of marriage except that: 1) at least one if not more of the seven (7) issues is still disputed between the parties and has not been reduced to a written MSA or stipulation for judgment between the parties; 2) settlement negotiations have been exhausted; and, 3) the judicial officer 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 MSA or stipulation for judgment, attaching it to the judgment sheet, and submitting it and the other required forms for the judicial officer’s review and signature.
Unfortunately for litigants’ sanity and their pocketbooks, the family courts are overburdened and struggling with case management. There are only so many cases a judicial officer can manage in a day.
Trial of simple issues can be set at the required status conference or a Family [Case] Resolution Conference (FRC) between the parties and the judicial officer usually about six months from the date of filing of the Petition for Dissolution of Marriage. The status conference is usually rescheduled if the parties are not yet ready from trial, and typically rescheduled several times with 60 or 90 day intervals between them.
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 begs for the dissolution of the marriage before judgment on other disputed issues. A party may file a Request for Order (previously called a motion or order to show cause) to bifurcate the divorce itself 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 with the remainder of the disputed issues. The family courts invariably grant 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, see When is My Divorce Final? Bifurcating Marital Status.
Restoration of Former Name
Family Code section 2080 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 clarifies three issues:
1) 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 his spouse to a divorce proceeding, so that he or 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.
2) Granting the request of a party to change his or her name is mandatory, not discretionary. And,
3) 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.
Additionally, Family Code section 2081 specifically addresses the circumstance where a judicial officer denies a name change to a parent because a minor child of the parties would have a different name in doing so. The judicial officer cannot deny the request for any reason other than fraud.
Surprisingly, prior to the 1994 changes to the Family Code, case law held that restoring a birth or former name was discretionary on the part of the judicial officer, not mandatory, and either party could request that the name of the other party be changed. A typical scenario was one in which the judicial officer 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 Request for Order is filed before or after judgment. Surely, Family Code sections 2080-2081 would have specifically addressed this issue were this not the case.
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.
Because the family court generally always has jurisdiction to enforce a final judgment from a dissolution of marriage or annulment, with certain exceptions, it seems clear enough that no discretion exists to deny a party’s post-judgment request that his or her birth or former name be restored, unless the request is based on fraud.