DIVORCE

California is a "no fault" divorce state. Any married person who wishes to end the marriage can do so, even if the other spouse disagrees. The purpose of a proceeding for marital dissolution is to dissolve the marriage and restore the parties to the status of single persons, divide the community estate, determine the custody of children, and settle the parties' financial responsibilities regarding spousal and child support.

No divorce can take place until six months after the divorce Petition is served. The process of dissolving the marriage and dividing assets can take longer than six months. A Court can terminate the parties' marital status - allow you to divorce - before making decisions about other matters, such as division of property.

Parties, especially those with relatively greater assets and more complicated issues, may opt to pay for a lawyer to act as a private judge. If the parties so stipulate, the lawyer then has, for the most part, all the power of a superior court judge. Hearings held before a private judge, though still open to the public, are generally much more private. At the San Jose and Sunnyvale courthouses, hearings in many different cases are often heard on the same calendar, one after the other. Parties and lawyers wait in the courtroom to have their matter called. There may therefore be many other parties and attorneys in the courtroom when your matter is heard. Working with a private judge can be less intimidating, and the case may be resolved faster and less expensively.

Where parties have been married for no more than five years and there are no children and relatively modest assets and liabilities, the parties may be eligible for a "summary dissolution." Summary dissolution is a relatively inexpensive way to divorce. No formal court hearings are required and the parties file a joint Petition for Dissolution.

A divorce begins when one spouse files and serves a petition and summons on the other. The summons has automatic restraining orders which apply to both parties. If either party violates one of these orders, they may be held in contempt of court.

The automatic restraining orders state:

  "Starting immediately, you and your spouse or domestic partner are restrained from
  
 1.removing the minor child or children of the parties, if any, from the state without the prior written consent of the other party or an order of the court;
 2.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 minor child or children;
 3.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
  4. 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. Before revocation of a nonprobate transfer can take effect or a right of survivorship to property can be eliminated, notice of the change must be filed and served on the other party.

You must notify each other of any proposed extraordinary expenditures at least five business days prior to incurring these extraordinary expenditures and account to the court for all extraordinary expenditures made after these restraining orders are effective. However, you may use community property, quasi-community property, or your own separate property to pay an attorney to help you or to pay court costs."

The divorce is complete when the Court issues a final judgment of dissolution.

If you wish to discuss the specifics of your case, please call our San Jose office to set up an appointment for a consultation. Even if you do not hire me as your attorney, whatever you communicate to me in connection with the legal matter and whatever legal advice I give you is privileged communication and therefore confidential.