By Wallace Francis

This is Part 1 of a four-part series on how a divorce moves through the California courts. Part 1 covers the petition and the response. Part 2 covers financial disclosures. Part 3 covers motions and temporary orders. Part 4 covers the final judgment.

In California, the legal name for a divorce is a “dissolution of marriage.” The same steps apply to ending a registered domestic partnership. No two cases are the same, but most divorces follow the same basic path. One spouse files papers, the other spouse responds, both sides share financial information, the court makes temporary orders if needed, and the case ends with a judgment. This first article explains how the case gets started.

Who Can File

To file for divorce in California, at least one spouse must have lived in California for the last six months and in the county where the case is filed for the last three months. If you have not lived here long enough yet, you can file for legal separation and later change the case to a divorce once you meet the residency rule.

California is a “no fault” state. You do not have to prove that your spouse did anything wrong. In almost every case, the reason given is “irreconcilable differences,” which simply means the marriage has broken down and cannot be fixed. One spouse cannot stop a divorce by refusing to agree to it.

The Petition

The spouse who starts the case is called the Petitioner. The other spouse is called the Respondent. The Petitioner starts the case by filing a form called the Petition (form FL-100) with the Superior Court in the county where they live.

The Petition gives the court basic facts about the marriage. These include the date of marriage, the date of separation, the names and birth dates of any children, and a general list of property and debts. It also tells the court what the Petitioner is asking for, such as child custody, child support, spousal support, division of property, attorney fees, or a return to a former name.

The date of separation is more important than many people expect. In general, money earned and property bought after the date of separation belong to the spouse who earned or bought them. If the two spouses disagree about that date, it can become one of the main issues in the case.

If there are minor children, the Petitioner also files a Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (form FL-105). This form tells the court where the children have lived for the past five years. Along with the Petition, the Petitioner files a Summons (form FL-110) and pays a filing fee. A person who cannot afford the fee can ask the court for a fee waiver (form FW-001).

Automatic Restraining Orders

The back of the Summons contains a set of standard orders that apply to both spouses. They take effect for the Petitioner when the case is filed and for the Respondent when the papers are served. They stay in place until the final judgment or until the court changes them. In plain terms, these orders say that neither spouse may do the following without written agreement or a court order.

  • Take the children out of California.
  • Sell, hide, give away, borrow against, or get rid of property, except for normal living expenses and ordinary business needs.
  • Cancel, cash out, or change health, life, auto, or other insurance, including the people named as beneficiaries.
  • Create or change certain transfers that happen at death, such as a trust or a beneficiary designation.

A spouse must also give notice to the other spouse before making any unusual large expense. These orders are meant to keep things stable while the case is going on. Breaking them can lead to serious consequences.

Serving the Papers

After filing, the Petitioner must make sure the Respondent receives copies of the papers. This is called service. The Petitioner cannot hand the papers over personally. Another adult who is at least 18 and is not a party to the case must do it. This can be a friend, a relative, a professional process server, or the sheriff.

In some cases, the papers can be mailed to the Respondent with a form called a Notice and Acknowledgment of Receipt (form FL-117). Service by mail only counts if the Respondent signs and returns that form. After service, the person who served the papers fills out a Proof of Service of Summons (form FL-115), and it is filed with the court.

The Six-Month Waiting Period

California has a waiting period. The earliest date a marriage can legally end is six months after the Respondent is served or first appears in the case, whichever happens first. This is a minimum, not a deadline. Many cases take longer than six months to finish. A judgment can be signed before the six months are up, but the marriage itself does not end until the waiting period is over.

The Response

Once served, the Respondent has 30 days to file a Response (form FL-120). If there are minor children, the Respondent also files form FL-105. The Respondent pays a filing fee or asks for a fee waiver, and then has the Response served on the Petitioner. Service of the Response is usually done by mail, again by an adult who is not a party, followed by a filed proof of service.

The Response lets the Respondent give their own version of the basic facts and ask for their own orders. For example, the Respondent may list a different date of separation or claim that a certain asset is their separate property. Filing a Response does not mean the case will turn into a fight. In many cases it simply makes sure both sides have a voice in the outcome.

What Happens If There Is No Response

If the Respondent does not file a Response within 30 days, the Petitioner can ask the court to enter a default. Once a default is entered, the Respondent generally loses the right to take part in the case unless the court later agrees to set the default aside. The court can then make orders based on what the Petitioner asked for in the Petition.

Spouses who have already worked out an agreement sometimes choose to let a case go by default on purpose. That can be a sensible approach when the agreement is in writing and both sides understand it. Missing the deadline by accident is a very different situation. Spouses can agree in writing to give the Respondent more time to respond, and that is common when the two sides are talking.

What Comes Next

Once the Petition and Response are on file, the next step is the exchange of financial information. California requires both spouses to fully disclose their income, property, and debts. Part 2 of this series explains how that process works and why it matters so much.

The Full Series

This article provides general information about California divorce law. It is not legal advice, and reading it does not create an attorney-client relationship. Every case is different, and the rules and local court practices can change. If you are facing a divorce, speak with a family law attorney about your own situation.