California law entitles you to a divorce (called a dissolution) based on irreconcilable differences. Fault in causing the breakdown of the marriage is no longer relevant in California. Your spouse does not need to give you permission, or even agree with you. To file for a divorce you must have lived in the state of California for the last six months, and in the county where you file for the last three months. If you do not meet these residency requirements you may still file for a legal separation
Before you file for a dissolution, understand that a divorce:
- will legally end your marriage forever
- may divide your property and debts
- provide for child support and if requested, spousal support
- determine who will care for the children and be entitled to make decisions on their behalf.
If you’re not sure that you are ready for a divorce, you may want to seek personal or marriage counseling.
When is the legal process complete and the divorce final?
The process of getting a divorce begins once you file the initial papers. Before your dissolution is complete, all the issues must be resolved, either by default, agreement or through contested court proceedings (hearings and/or trial) and as soon as you have prepared and filed all of the necessary paperwork. Everyone’s case will take a different amount of time. The process may take several months if the case is uncontested, or it could take years if there is a lot of disagreement or complex issues. DO NOT ASSUME THAT YOU ARE DIVORCED UNTIL THERE IS A JUDGMENT FILED AND ENTERED BY THE COURT.
A person is able to remarry only after the Judgment has been entered terminating marital status. The earliest date upon which marital status can be terminated is six months and one day after the Respondent was served with the Petition and Summons for dissolution.
It is the responsibility of either or both parties to bring the case to Judgment. It is important that you seek legal advice if you have any questions.
Anyone can obtain the necessary forms from the Clerk’s office of the Superior Court of California, County of San Mateo to begin a dissolution.
The Family Law Facilitator can also review your completed paperwork, give you information on filing and service of process, and refer you to legal assistance and self-help resources.
CHILD CUSTODY AND VISITATION
The court will determine each parent’s rights and obligations toward their children if the parties cannot agree on a parenting arrangement. The court will make decisions about your children if:
- you are going through a divorce (dissolution) and cannot agree on matters affecting the children
- you and the other parent were never married but one parent has asked the court for a legal order establishing the rights and obligations of each parent
- you are seeking a domestic violence restraining order and have children with the person to be restrained
Custody refers to the responsibility of caring for the children and planning for their future. If you have children with another person, the end of that relationship usually does not mean the end of your contact with that person. Together you should try to agree on a plan that is best for your children. There are many different types of custody:
- Joint custody means that both parents share physical and legal custody.
- Sole physical custody means that a child will live with and be under the supervision of one parent. In this type of arrangement it is common for the other parent to have visitation. Visitation refers to the time that a child spends with a non-custodial parent by mutual agreement of the parents or according to a schedule.
- Joint physical custody is defined as each parent having significant periods of physical custody with the child.
- Sole legal custody means that one parent shall have the right and the responsibility to make the decisions relating to the health, education and welfare of a child.
- Joint legal custody means that both parents shall have the right and the responsibility to make the decisions relating to the health, education and welfare of a child.
If you and the other parent cannot agree on a plan, the court will decide. The official legal standard is always the child’s “best interest”. The policy favored by the courts is that arrangement which allows for frequent and continuing contact with both parents. Before the court makes these decisions, parents must go through a process with Family Court Services called child custody recommending counseling (formerly mediation).
Family Court Services (FCS) is part of the court and provides mediation and recommending counseling for families with custody and visitation disputes. A person may be referred to FCS when an action is started that involves custody or visitation. Private mediators outside of the court system can also be used.
During the FCS appointment both parents sit down with a child custody recommending counselor and try to come to an agreement concerning custody and visitation of the children. If the parents are successful at reaching an agreement, they can receive help drafting a stipulation and court order through the office of the Family Law Facilitator.
If no agreement is reached, the recommending counselor is required by law to make a recommendation to the judge.
If the court finds it to be in the best interest of the children, the court can also order visitation for grandparents, stepparents and others.
Parent Orientation Program
The court requires parents with disputed custody and visitation issues to complete the FCS Parent Orientation Program prior to their appointment.
The court strongly recommends parents with disputed custody and visitation issues to attend a parent education class prior to the court date.