The Process from start to finish can take several months to several years. The information on this website is not meant to substitute for the representation of a competent family law attorney. It is meant to inform and empower you as to the basic procedures and remedies that are available to you.
A Very Brief Step by Step
Step 1. START YOUR CASE by filing the paperwork.
If you are the one starting the case, and the first to file paperwork, you are the PETITIONER. You will fill out and file with the court clerk at least a SUMMONS (form FL-110) and a PETITION-MARRIAGE/DOMESTIC PARTNERSHIP (form FL-100), and if there are children of the relationship, a DECLARATION UNDER UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (form FL-105). All forms can be found at (https://www.courts.ca.gov/forms.htm)
Other documents may be needed depending on your county and circumstances. Take the completed documents and copies to the clerk. The clerk will stamp them and assign a CASE NUMBER.
Step 2. Once the initial paperwork has been filed it must be served upon the other side.
Proper service is very important. Someone 18 or older, not you, serves the RESPONDENT (spouse or domestic partner) with all of the forms from Step 1, plus a blank RESPONSE-MARRIAGE/DOMESTIC PARTNERSHIP (form FL-120), and files with the court a proof of service form, such as PROOF OF SERVICE OF SUMMONS (form FL-115). The PROOF OF SERVICE is very important. Make sure it is filled out and filed correctly.
Now, the RESPONDENT has 30 days to respond.
During this time, you should be filling out the DECLARATION OF DISCLOSURE (FL-140), INCOME AND EXPENSE DECLARATION (form FL-150), SCHEDULE OF ASSETS AND DEBTS (form FL-142) or PROPERTY DECLARATION (form FL-160). These documents are collectively referred to as PDD’s and FDD’s. (Preliminary Declaration of Disclosure and Final Declaration of Disclosure). These completed forms along with the appropriate attachments and 2 years of tax returns are served on the Respondent, the documents themselves are NOT filed with the court. You must file a DECLARATION REGARDING SERVICE OF DECLARATION OF DISCLOSURE (form FL141), with the court but not the other documents. This step must be done within 60 days of filing the Petition. The Respondent must also comply with this requirement. The timeframe for the Respondent to serve PDD’s is 60 days after the Response is filed and served.
Step 3. Finishing your case – depends on what the Respondent has done.
If Respondent does not file a response you can proceed by DEFAULT.
If Respondent has not filed a Response and there is no written agreement: You must wait at least 30 days from the date the Respondent was served, make sure your PDD’s have been served, and then prepare a proposed JUDGMENT (form FL-180) along with the other needed forms. You will need several copies and self-addressed, stamped envelopes for the clerk. Take the documents to the clerk’s office. Your dissolution/divorce is not final until you receive the signed stamped copies back from the court. You can find more information about this on https://www.courts.ca.gov/1237.htm or https://www.courts.ca.gov/8409.htm.
If Respondent has not filed a Response but you have a written agreement, you will attach the signed and notarized agreement to the proposed JUDGMENT (form FL-180) and the other need forms. You will need several copies and self-addressed stamped envelopes for the clerk. Take the documents to the clerk’s office. Your dissolution/divorce is not final until you receive the signed stamped copies back from the court. You can find more information about this on https://www.courts.ca.gov/1237.htm or https://www.courts.ca.gov/8409.htm.
If Respondent files a Response, you can proceed one of two ways.
If Respondent files a Response AND you have a written agreement: Either party must file an APPEARANCE, STIPULATIONS, AND WAIVERS (form FL-130) and the proposed JUDGMENT (form FL-180) with the written agreement attached and the other needed forms. To see what other forms you may need see www.courts.ca.gov/uncontested.
If a Response is filed but there is NO agreement: you will have to go to court for a Trial to have the Judge/Commissioner make orders to resolve the issues. See www.courts.ca.gov/contested.
Important Things to Know
The Summons contains very important Automatic Temporary Restraining Orders (ATROS). It is important to know that upon filing the Summons, you are subject to automatic temporary restraining orders listed on the back.
The ATROS reflects Family Code Section 2040 which becomes effective to the Petitioner the moment the initial documents are signed and filed. They become effective to the Respondent the moment they are served. The automatic temporary restraining orders prohibit many financial activities except those in the ordinary course of business. It is important to consult with a competent family law attorney to make sure you do not inadvertently violate ATROS which may result in a breach of fiduciary duty and subject the violator to penalties and sanctions.
It is important to file the initial documents correctly. The Petition outlines the relief you are asking for, including issues such as Custody and Support. The court has the power to make decisions and orders regarding your case based upon how the Petition is filled out. If you do not fill out the Petition correctly you could be jeopardizing your opportunity to receive spousal support or prevent the other side from receiving spouse support. It is important to consult with a competent family law attorney to make sure you have given the court the jurisdiction to make orders regarding everything you need.
It is important to realize that nothing automatically happens in your case. The filing and serving of the initial documents do not automatically result in your divorce being finished.
How long will it take for my divorce to be final?
How long your case takes depends entirely upon you and your former spouse, and the issues involved in your case. Some cases resolve fairly quickly because the parties agree to most issues. Some cases drag on for years because the parties disagree on every issue and the court is involved at each step of the process.
YOUR CASE IS NOT FINAL UNTIL A JUDGMENT IS ENTERED.
Family Code Section 2040
(a) In addition to the contents required by Section 412.20 of the Code of Civil Procedure, the summons shall contain a temporary restraining order:
(1) Restraining both parties from removing the minor child or children of the parties, if any, from the state, or from applying for a new or replacement passport for the minor child or children, without the prior written consent of the other party or an order of the court.
(2) Restraining both parties from transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life, and requiring each party to notify the other party of any proposed extraordinary expenditures at least five business days before incurring those expenditures and to account to the court for all extraordinary expenditures made after service of the summons on that party.
Notwithstanding the foregoing, nothing in the restraining order shall preclude a party from using community property, quasi-community property, or the party’s own separate property to pay reasonable attorney’s fees and costs in order to retain legal counsel in the proceeding. A party who uses community property or quasi-community property to pay his or her attorney’s retainer for fees and costs under this provision shall account to the community for the use of the property. A party who uses other property that is subsequently determined to be the separate property of the other party to pay his or her attorney’s retainer for fees and costs under this provision shall account to the other party for the use of the property.
(3) Restraining both parties from cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage, including life, health, automobile, and disability, held for the benefit of the parties and their child or children for whom support may be ordered.
(4) Restraining both parties from creating a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the disposition of property subject to the transfer, without the written consent of the other party or an order of the court.
(b) Nothing in this section restrains any of the following:
(1) Creation, modification, or revocation of a will.
(2) Revocation of a nonprobate transfer, including a revocable trust, pursuant to the instrument, provided that notice of the change is filed and served on the other party before the change takes effect.
(3) Elimination of a right of survivorship to property, provided that notice of the change is filed and served on the other party before the change takes effect.
(4) Creation of an unfunded revocable or irrevocable trust.
(5) Execution and filing of a disclaimer pursuant to Part 8 (commencing with Section 260) of Division 2 of the Probate Code.
(c) In all actions filed on and after January 1, 1995, the summons shall contain the following notice:
“WARNING: California law provides that, for purposes of division of property upon dissolution of marriage or legal separation, property acquired by the parties during marriage in joint form is presumed to be community property. If either party to this action should die before the jointly held community property is divided, the language of how title is held in the deed (i.e., joint tenancy, tenants in common, or community property) will be controlling and not the community property presumption. You should consult your attorney if you want the community property presumption to be written into the recorded title to the property.” (d) For the purposes of this section:
(d) For the purposes of this section:
(1) “Nonprobate transfer” means an instrument, other than a will, that makes a transfer of property on death, including a revocable trust, pay on death account in a financial institution, Totten trust, transfer on death registration of personal property, or other instrument of a type described in Section 5000 of the Probate Code.
(2) “Nonprobate transfer” does not include a provision for the transfer of property on death in an insurance policy or other coverage held for the benefit of the parties and their child or children for whom support may be ordered, to the extent that the provision is subject to paragraph (3) of subdivision (a).
(e) The restraining order included in the summons shall include descriptions of the notices required by paragraphs (2) and (3) of subdivision (b).