The different legal options for ending a marriage in California

Summary Dissolution, Dissolution, and Separation

It is an unfortunate reality that many marriages end up in dissolution or separation, but it is a reality nonetheless. The California divorce process offers three options to couples who have determined that ending their legal relationship is in their best interests: (1) Summary Dissolution, (2) Dissolution, and (3) Legal Separation. Each of these options have their own requirements under California law, this article will briefly discuss those requirements, and the ultimate effect of each option.

California Summary Dissolution

Summary Dissolution is California’s response to marriages that were entered into hastily, and where both individuals quickly determine that marriage was not the right choice. In order to qualify for a Summary Dissolution in California, the following requirements must be met:

1. You Have Been Married Less Than Five Years

Summary Dissolution is reserved for the simplest situations. As such, the Court’s require that the individuals seeking Summary Dissolution were married for five (5) years or less. The Court stops counting individuals as married, for purposes of this rule, the moment you file your Joint Petition for Summary Dissolution of Marriage. Thus, if you are contemplating a dissolution, and have been married almost five years, it is important to file the Joint Petition quickly.

1. The Wife is Not Pregnant, and There are No Children from the Marriage

In California, and in every Court across the country, the Courts are unwilling to handle situations where a child’s well-being may be at issue in a summary fashion; the Court’s will require substantially more work to end a marriage and show that a child will be taken care of. This includes unborn children and adopted children.

1. You Do Not Own, or Have an Interest in, Any Real Property

The Courts also require that the individuals seeking Summary Dissolution do not have substantial marital assets. Further, the Courts will not treat a dissolution involving real property, belonging to the marital community, in a summary fashion. Real Property includes:(1) houses, (2) rental properties, (3) condominiums, (4) land, (5) a one-year lease, or (6) an option to buy.

1. You Do Not Owe More Than $5,000 in Debt That Was Acquired After Marriage

Debts acquired during marriage generally are debts to both individuals in a marriage. The Courts recognize that dividing debt can be a messy affair and have a significant effect on an individual’s life after a Summary Dissolution. Therefore, the Court will not provide the benefits of a quick divorce to individuals who have acquired more than $5,000 in debt after the beginning of their marriage. This requirement does not include any debt you may have acquired through a vehicle loan.

1. The Marital Community Has Not Acquired More Than $25,000 of Property

Similarly, nearly all property (real or personal) that is acquired during the marriage belong to the marital community. Where a married couple has acquired substantial assets throughout the course of their marriage, the Courts are unwilling to dissolve that marriage though the summary dissolution process. The $25,000 benchmark does not include money owed on cars or property.

1. Neither Spouse Owns More Than $25,000 in Separate Property

As a general statement, property one spouse owned prior to marriage is considered their separate property (as opposed to property of the marital community). There are numerous other forms of separate property as well as several ways of transmuting separate property to community property, but that is beyond the scope of this article. The Courts will not grant a Summary Dissolution where a party has substantial separate property. The $25,000 benchmark does not include money owed on cars or property.

1. Neither Spouse Will Receive Spousal Support

In order to qualify for a Summary Dissolution, it is necessary that both parties waive their right to spousal support from each other; for a discussion about the types of agreements married couples can enter into to ease the dissolution process, please read Various Agreements that can be Made to Lower the Cost and Reduce the Conflict in Dissolution or Separation. [Link Required]

1. Both Parties Agree to Sign the Joint Petition

This requirement simply makes clear that one party cannot unilaterally force a Summary Dissolution; both parties must agree to the dissolution. In addition to signing and filing the Joint Petition, the parties are required to pay the filing fees, but these fees can be waived by the Court based on need.

1. At Least One Party Must Have Resided in California For At Least Six (6) Months

Residence is defined as being present in California for a purpose that is not temporary or transitory. As such, if you live in California, and don’t presently intend to live outside California, you are a resident of California. If you have been in California with the intention to remain for six (6) months or more, this requirement is satisfied.

1. (10)Prior to Filing the Joint Petition for Summary Dissolution of Marriage, an Agreement Relating to the Division of Property and Debts Must Have Been Signed

Viewed through the lens that the Court will only allow parties to utilize the Summary Dissolution process where the dissolution would be simple, it makes sense that the Court requires the parties’ to be in agreement about the division of their assets and debts, notwithstanding the fact that those debts and assets are necessarily small. For a discussion of the various agreements parties can enter into in anticipation of dissolution, follow this [Same Link as Above] link.

Legal Requirements For Dissolution In California

A key distinction between Summary Dissolution (discussed above), and a Legal Dissolution, is that in the Legal Dissolution it is not necessary for both parties to agree to the dissolution (See requirement 8 for Summary Dissolution above).

This article is designed to acquaint you with the general legal requirements of filing for a dissolution in California; for an in-depth discussion of those requirements, the Courts provide a useful resource here. While the information contained in the previous link is helpful, it is best to discuss the process and strategy with one of the skilled attorneys at Maples Family Law. The following is a non-exhaustive list of the legal requirements to obtain a divorce in California.

1. At Least One Party Must Have Resided in California For At Least Six (6) Months

Residence is defined as being present in California for a purpose that is not temporary or transitory. As such, if you live in California, and don’t presently intend to live outside California, you are a resident of California. If you have been in California with the intention to remain for six (6) months or more, this requirement is satisfied.

1. Fill out the Proper Court Forms

There are several forms that must be filled out in order to begin, and complete, the dissolution process.

1. Petition for Dissolution (FL-100)
2. Summons – Family Law (FL-110)
3. Property Declaration – Family Law (FL – 160)

If there are children from the marriage:

1. Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act -UCCJEA (FL -105/GC-120)

If you want the Court to make a determination, and an order, relating to custody and visitation:

1. Child Custody and Visitation Application Attachment (FL-311)

Once these forms are filled out, filed, and served, you have up to sixty (60) days to fill out your financial disclosures. It is best to fill these documents out and exchange them with your spouse (not the Court) as early as possible:

1. Declaration of Disclosure (FL-140); and
2. Declaration Regarding Service of Declaration of Disclosure (FL-141); and
3. Schedule of Assets and Debts (FL-142); OR Property Declaration (FL-160); and
4. Income and Expense Declaration (FL-150)

This will get your legal dissolution started. It is important to fill out each of these documents fully and accurately. While the Courts have made efforts to make these forms easy to complete without the assistance of an attorney, it is important to have your forms reviewed by a competent attorney from Maples Family Law to make sure everything has been filled out properly.

1. California Divorce Waiting Period

Once everything has been filed properly, the Courts will not act on that Petition for Dissolution for a minimum of six (6) months; this is known as the California Divorce Waiting Period. This waiting period serves several purposes. Family Law Courts have very large case loads and do not want to hear a case unless it is absolutely necessary. Many couples reconcile within six months, and the Courts would like to be sure that dissolution is the route you want to go before entering a judgement enforcing that desire. As such, the will not be able to complete your dissolution in less than six months.

While the nuances of the dissolution process are complex, this article does not address the process. For an in-depth analysis of an uncontested divorce, please read this [Cross Link to Article on Uncontested Dissolution]

Legal Requirements For Separation In California

The requirements for a separation are nearly identical to those outlined in the dissolution section above. The key difference between a dissolution and separation is the actual effect of an order granting a separation. Where an Order Granting Dissolution severs the entire marital relationship, an Order Granting Legal Separation simply mandates the rights and duties of a couple while they are still married but living apart. A legal separation is the better option for a couple seeking to be apart while they determine whether they can reconcile with each other. The Legal Separation allows the couple to resume the legal marriage without going through the marriage process again. 

Maples Family Law understands that even thinking about separating from your loved one is a terrible time, but sometimes that is what is needed. The attorneys at Maples Law Firm are there to help walk you through a complicated process in your time of need, and look forward to hearing from you.