Divorce

To file for divorce in California, you must be a resident of California for at least six months and a resident of the county in which you file for three months. A common misconception in California is that a divorce becomes final six months after filing. In reality, a divorce in California becomes final only when the divorce action is settled and resolved by a final judgment of the Court — which may take years.

If you are in a hurry to get divorced — so that you can get remarried, for example — there is a process in California where the Court will confirm your divorced status on or around the six-month anniversary of your initial petition for dissolution (see discussion below), leaving issues of support, child custody, and property division to be resolved at a later date.

To commence an action for divorce in California, you must file a divorce petition with the clerk of your county court, which is called a “Petition for Dissolution of Marriage or Registered Domestic Partnership. This initial petition for dissolution and its supporting documents must then be served on the other spouse, who is then given time to respond.

Once a petition for dissolution is served, automatic temporary restraining orders are imposed on both spouses. These restraining orders immediately prevent both spouses from taking any of the following actions:

• Cashing in any life insurance policy and then depositing the proceeds into a separate account
• Changing the beneficiary of any life insurance policy
• Removing your spouse or children from any health, dental, or vision insurance policy.
• Removing your spouse from your automobile insurance policy
• Incurring any extraordinary expenditures without (a) giving the other spouse at least five days’ notice prior to incurring the expense and (b) accounting to the Court the details of the expenditures.

During the discovery process, both spouses must exchange information regarding their financial and personal circumstances. This includes information about joint assets, income, debt, and all claimed separate property, income, and debt. Occasionally, there is a need for formal discovery, which could include one spouse asking formal, written questions (called interrogatories) or formal, written requests for relevant documents. A spouse may also take live testimony (called a deposition) from the other spouse or from the experts the other spouse has retained.

A Judgment for Marital or Domestic Partnership Dissolution is the legal termination of a marriage or domestic partnership and, as a result, the termination of marital rights and responsibilities. Some examples of rights or responsibilities that are terminated include:

1. The right to maintain a spouse on one’s health, dental, or vision insurance.Once divorced, an employed spouse can no longer legally maintain their former spouse on an employer-sponsored insurance plan. Although extended coverage through COBRA or CAL-COBRA is available to extend coverage to the former spouse, extended COBRA or Cal-COBRA coverage is limited. It is also very expensive. This can cause significant problems for an unemployed spouse, especially if that spouse has a pre-existing medical condition.
2. The right to use your joint credit cards.It’s not uncommon for one spouse to apply for a credit card and then, once approved, to have an additional card issued in the other spouse’s name. If the spouse who obtained the credit card applied in that spouse’s name only, then the other spouse’s right to use their additional card terminates at divorce. Therefore, Both spouses should make sure that they each have at least one credit card in their name so that they have a functioning credit card following the divorce.
3. The responsibility of owing a fiduciary duty to the other spouse.During marriage, each spouse owes a fiduciary duty to the other spouse. That means each spouse must act in good faith towards the other, treat each other fairly, and avoid taking unfair advantage of the other. A fiduciary duty is the highest duty the law knows. It starts from the time of marriage, and it ends once all of the marital assets have been accounted for, divided, and distributed.

Termination of marital status or domestic partnership may also have important implications regarding social security and retirement benefits. If a marriage has lasted ten years, then a spouse is entitled to social security benefits based on a former spouse’s earnings. Failure to pay attention to this issue could have a dramatic impact on a spouse’s income at the time of retirement. Spouses need to carefully consider the impact that a marital dissolution will have on the distribution of assets in a traditional retirement plan. For more information on this issue, see Pensions, Retirement Plans, and Deferred Compensation Plans.

Given the financial impact of divorce, so long as both spouses are willing, they might want to consider some alternatives to divorce that are available. These include:

• A post-marital agreement where the spouses remain legally married or registered domestic partners but enter into an enforceable contract that modifies their respective rights to property.
• A Judgment for Legal Separation (rather than a Judgment for Marital or Domestic Partnership Dissolution) allows the spouses to settle their property rights and financial obligations while remaining legally married or registered domestic partners.