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Divorce in California can be a confusing mess of procedures, rules, forms, and legalese. It’s easy to get lost in the twists and turns of this seemingly endless process. Knowing where you are going can give you peace of mind and a greater ability to make smart decisions that are best for you and your children.

While your situation is unique, there are certain steps everyone must take in order to move through the divorce process successfully. This guide is intended to be a roadmap that will give you a preview of expectations and mistakes to avoid.

Here are 10 basic steps to the divorce process:

Step 1: Preparing to File for Divorce

Is divorce right for me?

Deciding to divorce your spouse carries lifetime consequences. As such, it is a decision that requires serious consideration and contemplation. Here are some questions you may wish to ask yourself before deciding to file for divorce:

  • Have I done everything within my abilities to repair the relationship?
  • Am I really ready for a divorce, or am I reacting emotionally?
  • Why do I want a divorce?
  • Will a divorce solve the problems?
  • Have I accepted that there will be consequences to my decision to divorce?
  • Can I handle the unpleasant side effects of divorce?
  • Am I willing to take on all of the responsibilities of life as a single person?

Should I meet with an attorney?

An attorney can be a very valuable tool in the preparation for divorce, and consulting with one provides an opportunity for you to understand your rights and obligations.  The decisions you make in the beginning of the process will set the tone of your case, dictate the path, and determine the ultimate outcome.  Make sure you obtain as much information as possible about the divorce process, what to expect in your divorce, and how you protect yourself.  

Should I tell my spouse I’m thinking about filing for divorce?

Blindsiding your spouse with divorce papers usually kicks off a rocky start to an already-difficult process. It’s natural to want to avoid this painful conversation and not have to witness the combination of anger, sadness, and despair on your spouse’s face when you break the news. In most cases, telling your spouse that your marriage is over is the most compassionate choice which honors the relationship you had together.

Carefully plan out the ideal time to let your spouse know.  Make sure you won’t be interrupted and the children aren’t around.  Consider the most appropriate way your spouse would want to be told the news.  Be firm but kind, and allow your spouse to grieve. Remember that you’ve had a long time to think about  your decision, and your spouse will be at a different emotional place than you.  There is nothing you can do to speed up the grieving process, so be patient and let your spouse come to terms with the divorce.

Don’t let the conversation devolve into an argument – this is not the time to blame, accuse, or revisit history.  It’s easy to be defensive or react if your spouse verbally attacks you.  Listen quietly, and don’t interrupt.  Try to practice active listening so that your spouse knows you’re hearing what is being said, and reassure them that although the marriage is over, your relationship is not.  

If you fear for you or your children’s safety, there’s a history of domestic violence, or, if you believe your spouse will inflict self-harm, seek professional help and guidance before you decide to tell your spouse about the divorce.  

What should I do before filing for divorce?

It’s always a good idea plan for your divorce. Here are some steps we recommend you take before filing:

  1. Copy Important Documents.

    Find and make copies of all documents related to your assets, debts, income, and expenses: tax returns, bank account statements, retirement account statements, life insurance policies, mortgage statements, auto insurance policies, credit card statements, and paycheck stubs. It’s a great idea to make a digital copy of these documents and upload them to the cloud using a new random password-protected file. In addition to financial documents, you may want to consider copying family photographs, home videos, and other sentimental items.

  2. Remove Personal Items.

    Gather up your Social Security Card, medical insurance information, birth certificate, passport, and other personal documents. You will want to move these items to a safe place. Many families mix up these personal documents, and it’s easy for them to get misplaced when one or both spouses are moving out of the family home.

  3. Change Passwords.

    Protect your confidentiality by changing all of the passwords to your personal accounts. This includes passwords to your cell phone, email, computer, social media, and iCloud accounts. Make sure you select a password that your spouse cannot guess, keeping in mind that your spouse knows you better than probably anyone in the world.

  4. Inventory Household Items.

    Use your phone to record a video of the contents in your home. Slowly walk through each room and describe the items as you record. Don’t forget about the items in your home safe.

  5. Protect and Access Credit.

    It is critical to check your credit before you begin the divorce process. You need to know what debts exist and what your credit report looks like so that you can properly plan your financial future. If possible, you may want to open a new credit card solely in your name so that you can have access to emergency funds.

Meeting with an attorney before you file will provide additional tips and resources.

How should I tell our children about the divorce?

Your children will always remember the moment they learn that you and their other parent are getting a divorce. It’s a good idea to consult with a child therapist for ideas on how to share this information with your children in an age-appropriate manner. If possible, you and your spouse should tell the children together in order to present a sense of unity.

Remind your children that you love them, reassure them that the divorce is not their fault, and let them know it’s okay to feel sad or angry. Children need both of their parents to remain involved in their lives. Don’t force your children to pick sides, don’t involve them in your conflicts, and don’t use them as messengers. Allow them to be happy with the other parent.

Your children are half you and half the other parent. Every time you criticize or insult the other parent, you are criticizing and insulting your children. Don’t let your anger towards the other parent outweigh your love for your children.

Make sure you and your spouse provide consistency and stability through your actions. Children will often ask the same questions to both parents, and it can be confusing when they received mixed messages and conflicting information. Communicate regularly with the other parent and make sure you remain a united front.

For more information, please watch our video Divorce with Children.

Step 2: Filing for Divorce

How I do file for a divorce?

In order to file for divorce, you or your spouse must be a resident of the State of California and a resident of the county you intend to file. California uses standard uniform forms for the divorce process, many of which are mandatory. All divorces start with a Summons (FL-110) and Petition (FL-100). If you have minor children of your relationship, you will also need to file a declaration related to your children’s residences over the past five years, called the Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act, or UCCJEA (FL-105).

What is a Summons?

The Summons (FL-110) is a notice to your spouse that you have filed for divorce and they have 30 calendar days to respond. It also contains a set of Standard Family Law Restraining Orders, commonly referred to as the “ATROs” and provides information regarding rights and options. FL-110 is a mandatory form as part of filing for divorce.

This is a very important document for both the person filing for divorce, also known as the Petitioner, and the person responding/being served with the divorce, also known as the Respondent. Both parties are subject to the Standard Family Law Restraining Orders, which means neither can do the following:

  • Remove the minor children of the marriage from California, even for vacations.
  • Change, cancel, borrow against, or dispose of any insurance. This includes life, health, auto, disability, and all other forms of insurance that are held for the benefit of either spouse or their minor children.
  • Transfer, conceal, encumber, or dispose of any property, including both real and personal property, community or separate property except in the usual course of business or for life necessities.
  • Create a nonprobate transfer, which means a transfer of property upon death that avoids probate. This does not include the creation of a will.

For assistance on completing form FL-110, please read our step to step guide and watch our video.

What is a Petition?

A Petition (FL-100) is a request for divorce. It lists factual information that is required before a judge can grant a divorce. This includes residency information, statistical information such as the date of marriage and separation, and your general position on the divorce issues. There are five general categories of divorce issues:

  • Children of the marriage: custody, visitation, and support;
  • Spousal support;
  • Property division;
  • Debt allocation; and
  • Attorney fees.

For assistance on completing form FL-100, please read our step to step guide and watch our video.

What is the UCCJEA?

The Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act, commonly known as the UCCJEA (FL-105), is a mandatory California divorce form. It is a document that allows the judge to make sure that California has jurisdiction (authority) to make custody and visitation orders. In order for a California judge to be able to make these orders, the children must be residents of California. The pleading also clarifies whether or not there are other custody and visitation orders already in existence from another kind of case, such as a guardianship or juvenile matter.

For assistance on completing form FL-105, please see our step to step guide and watch our video.

Is there a cost to file for divorce?

There are mandatory filing fees when you first file for divorce in California. This fee is commonly referred to as a first appearance fee. If you are on disability or another form of state aid and you apply for a waiver, you will automatically qualify to have these fees waived.  If you need a payment plan or cannot pay the filing fees, you can also apply for this assistance.

Where do I file the papers?

You will need to bring your papers to your local courthouse and file them with the family law clerk’s office. Since most counties have multiple courthouses in multiple locations, make sure you look up the address of the family law courthouse. Be aware that most courthouses do not operate on a typical business hour schedule and may close as early as 1:00 pm. Additionally, be prepared to wait in long lines, as most courthouses have limited staff and resources.

For all documents you file with the court, you will need to double hole punch the original document at the top and make two copies of each pleading you want to file. The court clerk will take and file the original then stamp and return the two copies as endorsed-filed documents to you. One copy is for you, and one copy is to be served on your spouse.

It’s important to remember that the court clerks aren’t attorneys, and therefore cannot provide you with legal advice. As a result, they oftentimes cannot answer your questions on what to do in your divorce. While filing for divorce is certainly a very confusing stressful process, taking out your frustrations on the clerks is unfair. They work really hard and deserve to be treated with courtesy and respect.

Step 3: Serving the Divorce Papers

What does it meant to serve divorce papers?

Once the Petition, Summons, and, if you have minor children of the marriage, the UCCJEA have been filed, the next step is to serve your spouse with these documents. Service means to give the other party copies of the documents. Serving the initial documents gives your spouse notice that a case has been opened and that he or she is subject to the Standard Family Law Restraining Orders. Proper service is essential for moving forward with the divorce process – until service happens, the minimum waiting period of six months and a day does not begin.

Who can serve the divorce papers?

An adult (18 or older) who isn’t a part of the case can serve divorce papers on the other spouse. While you can certainly use the local sheriff’s office or a licensed process server, you can also have a friend or relative assist with this process. If you are at all uncertain about how to serve your spouse, don’t want anyone you know involved, or are concerned that your spouse may react inappropriately or violently, it’s best to use a professional. It’s never a good idea to involve your adult children in this process, and you are never allowed to serve the papers yourself.

What has to be served?

The server must serve filed copies of your Petition, Summons, and if applicable, your UCCJEA. In addition, your server must give the other side the documents needed to respond to the divorce. This includes a blank Response (FL-120), and if you filed the UCCJEA, you will also need to provide a blank copy.

How are the papers served?

The answer to this question largely depends on the type of relationship you have with your spouse and what kind of “statement” you want to make with service. Assuming there is no domestic violence and no reason to believe that your spouse will go out of his or her way to avoid being served, it may be a good idea to have a conversation with your spouse about service. In general, there are two ways of serving your spouse: personal service, and mail with notice and acknowledgment of receipt.

Personal service happens when your server personally hands your spouse the divorce papers and blank response form or forms. That doesn’t mean it has to be a surprise or done in an embarrassing manner, as the date and time of service can be scheduled. You do not have to serve your spouse in a public venue, such as their place of employment. Embarrassing your spouse or trying to inflict pain is rarely a good choice. While it may make you feel better initially, you may come to regret your decision when it causes further conflict and increased litigation. Finally, at all costs, avoid having your spouse served in front of your children.

Service can also happen by mail. This requires your spouse to sign a document acknowledging service of the divorce papers. This form is called a Notice and Acknowledgment of Receipt (FL-117) , and your spouse has 20 days after receiving the divorce papers to sign and return it to you. Remember, even if you are serving by mail, you still have to use an adult-aged third party.

Think of service as opportunity to write the first chapter of your new life. Every decision you make is another part of your story. Do you want it to be filled with conflict and regret? Or, do you want to be able to look back and feel confident that you went about this process respectfully and with dignity?

When should I serve the divorce papers?

In general, you will want to serve the divorce papers soon after filing. Your spouse will see the date you filed, and if there is a large gap between the date of filing and the date of service, this may cause your spouse to feel deceived. On a practical note, the date of service of the Petition and Summons is very important because it commences the mandatory six-month and a day waiting period to obtain a divorce in California. While a short delay to make sure service is accomplished smoothly makes sense, your case cannot move forward until your spouse has been properly served.

How does the Court know that the other side has been served?

Once the Respondent has been served, you will need to make sure that the Court has proof of service. For the initial divorce papers, this proof is given with a form called the Proof of Service of Summons (FL-115). If you have served by mail, the completed Notice and Acknowledgment of Receipt must be attached to the Proof of Service of Summons. Completing this form correctly is vital to moving your divorce forward, and missing any of the information will result in delays. You will also need to file your proof with the court. For assistance on completing form FL-115, please read our step to step guide and  watch our video.

What happens after service?

Your spouse has 30 calendar days after service to formally respond to the divorce by filing a Response (FL-120) and if applicable, the UCCJEA (FL-105). While you are waiting for your spouse to respond, we suggest that you start on your financial disclosures. For more information on how to complete your financial disclosures, please see Step 5: Temporary Orders.

Step 4: Responding to the Divorce

What happens after I have been served with divorce papers?

It’s very important for you to carefully review the documents served on you. The documents contain specific prohibitions, called Standard Family Law Restraining Orders. You are subject to these orders the minute you are served, and ignorance is not a defense to violations. For more information about these restraining orders, please review Step 1, Filing for Divorce.

Additionally, you’re on a timeline to make the decision as to whether or not to respond to the divorce. After service, you have 30 calendar days to respond. If you miss the deadline, the Petitioner has the option of moving forward with the divorce without your input.

Can I stop the divorce if I disagree with it?

California only requires one spouse to seek a divorce. By filing for a divorce, the Petitioner is making a clear statement of intent to divorce. Therefore, even if you do not agree, the Petitioner has the unilateral right to seek and obtain a divorce.

What is a Response?

Responding to the divorce does not mean you are requesting it, or that you agree with what your spouse is asking for. It does, however, allow your judge to hear your side of the story and protect your legal rights. As such, it’s important not to miss your 30-day deadline to respond.

A Response (FL-120) is the formal response to the Petitioner’s request for divorce. It lists the same factual information as the Petition, and allows the Respondent to either agree or disagree with the facts stated in the Petition. This includes the same opportunity to provide residency information, statistical information such as the date of marriage and separation, and your general position on the five basic categories of divorce issues.

Reviewing the Petition can help you complete the Response since the same questions are asked on both forms. Make sure that you are completing the form based on what you want, and what you believe is true – do not simply mimic what the Petition states if you disagree with the information provided.

If you have minor children of the marriage, you will also need to complete a Declaration Under Uniform Child Custody Enforcement Act. This educates the judge as to where your children have lived for the past five years, as well as whether or not there are any other cases that may impact the judge’s ability to issue custody or visitation orders. For more information on this form, please review Step 1, Filing for Divorce.

For assistance on completing these forms, please watch our videos.

When is the Response filed?

You have 30 calendar days after service to file your response with the court and serve the Petitioner. It’s generally a good idea to respond as soon as possible, as it’s easy to miss a deadline when you procrastinate or become burdened with day to day life.

Is there a cost to respond to the divorce?

There are mandatory filing fees when you respond to the divorce. This fee is commonly referred to as a first appearance fee. If you are on disability or another form of state aid and apply for a waiver, you will automatically qualify to have these fees waived. If you need a payment plan or cannot pay the filing fees at all, you can apply for this assistance. Even if you don’t want a divorce, protecting your legal rights by formally participating will cost the initial filing fees.

Where do I file the papers?

You will need to bring your papers to your local courthouse and file them with the family law clerk’s office. Since most counties have multiple courthouses in multiple locations, make sure you look up the address of the family law courthouse. Be aware that most courthouses do not operate on a typical business hour schedule and may close as early as 1:00 pm. Additionally, be prepared to wait in long lines, as most courthouses have limited staff and resources.

For all documents you file with the court, you will need to double hole punch the original document at the top and make two copies of each pleading you want to file. The court clerk will take and file the original then stamp and return the two copies as endorsed-filed documents to you. One copy is for you, and one copy is to be served on your spouse.

It’s important to remember that the court clerks aren’t attorneys, and therefore cannot provide you with legal advice. As a result, they oftentimes cannot answer your questions on what to do in your divorce. While filing for divorce is certainly a very confusing stressful process, taking out your frustrations on the clerks is unfair. They work really hard and deserve to be treated with courtesy and respect.

How do I serve my Response?

Since the Petitioner has already appeared in the case by filing the Petition, you can serve the Petitioner by mail without a Notice and Acknowledgment of receipt. While you certainly can personally serve the Petitioner or serve by mail with Notice and Acknowledgment of Receipt, this is a legally unnecessary step.

Regardless of whether service is personal, by mail with Notice and Acknowledgment of Receipt, or by mail, the same requirements apply. Service must be by someone at least 18 who is not part of the divorce case. That means that another adult has to mail the documents on your behalf.

Unlike a Petition, you will need to serve an unfiled copy of the Response.

How does the Court know I served the Petitioner?

You will need to file proof with the Court that the Petitioner has been served. This is done by completing and filing a Proof of Service by Mail. While there are multiple forms that will suffice, the mostly commonly used Proof of Service by Mail form is FL-335. If the Petitioner has an attorney, you will want to serve the attorney. If the Petitioner does not have an attorney, then you will want to serve the Petitioner directly.

Step 5: Temporary Orders

What are temporary orders?

Temporary orders can be requested during the divorce proceedings. California divorces take at least six months and a day after service of the initial documents before they can be finalized. For many people, that is too long to go without orders. The word temporary can be a little misleading because temporary orders do not have an automatic expiration date. Temporary orders remain in effect until superseded by other orders, including a judgment.

There are many temporary orders that can be requested during the divorce. These include, but are not limited to the following:

  • Child custody and visitation;
  • Child support;
  • Spousal support;
  • Exclusive use of property; and
  • Attorney fees.

Either party can ask for temporary orders anytime during the divorce proceedings. The orders can be by stipulation (agreement) or issued by a judge. Having a document in writing that is signed by a judge, and therefore enforceable under the law, provides numerous benefits. Many people find that having formal temporary orders reduces conflict and creates clarity.

When should I file for temporary orders?

There isn’t a right or wrong time to file for temporary orders. You can file as soon as your divorce case is open, and the key is to be very honest with yourself regarding the direction of your case. Many people hesitate to file for temporary orders because they’re afraid of going to court, or they think that it’s too expensive to do so. Fear is a terrible basis for decision-making, and the decisions you make in your divorce have very real and long-term effects on you, your children, and your family. Therefore, it’s important to make well-educated decisions that are based on what is best for your situation.

Unless your situation is a true emergency that could not have been predicted, it typically takes anywhere from 8 – 10 weeks before a judge will hear your case for temporary orders. Given these kind of timelines, it’s important for you to plan accordingly. For example, if you know you are going to run out of savings and will need support, don’t wait until your bank account is at a zero balance before filing. Plan ahead and understand that the court system is not going to automatically work on your schedule.

What do I file to get temporary orders?

To obtain temporary orders, you will need to file paperwork requesting orders called a motion. A motion will set a hearing date in front of a judge. This type of hearing is called a short cause hearing because it’s intended to be no longer than 20 minutes. The paperwork always starts with a form called a Request for Order (FL-300). This form will give you a list of typical issues brought before the judge, including: child custody, visitation, child support, spousal support, and attorney fees. There is also another catch-all category of “other,” which allows you to request orders that fall outside of those general issues. You have the option to pick as many issues as you would like to be addressed in front of the judge.

The orders you ask for may require additional documents to be filed with your Request for Order. For example, if you’re asking for orders that involve money, you will also have to file another document called an Income and Expense Declaration (FL-150). For assistance on completing form FL-150, please read our step to step guide and  watch our video.

Think of your request for orders as a dinner menu. You don’t have to order everything on the menu, but once your order is placed, you aren’t going to get something you didn’t ask for. Conversely, you know not to order something you don’t want. It’s the same concept in filing a motion. Don’t ask for child support orders if you don’t want or need them. Just because you can doesn’t mean you should. Pick what works best for your family.

In addition to choosing the issues you want the judge to hear, you will also need to clearly explain to the court what you are asking for and why you are asking for these specific orders. This explanation, or statement, is called a declaration. Your declaration needs to describe the facts of your situation and give the judge the important information needed to give you orders. Writing your story is one of the most difficult tasks to accomplish, since it’s impossible to put your life down on paper in a few pages. You want to be honest, easy to understand, and tell the judge exactly what you want.

What happens after I file?

Once you file your motion with the court, you are given a date and time for your hearing. The court clerk puts you on the judge’s calendar, and you are expected to appear in front of the judge on that day. Make sure you have your calendar available when the clerk is scheduling your hearing date in order to avoid conflicts. It’s not always easy to move the hearing date once your motion has been filed.

Like all documents you file with the court, the clerk keeps the original, double hole punched document and stamps the two copies you provided. The clerk returns the endorsed-filed copies back to you. One copy is for your records, and the other copy is for you to serve on the other spouse. It is up to you to ensure that your spouse is served on time.

What happens if I file for custody and/or visitation orders?

California requires parents to attend Child Custody Recommending Counseling (CCRC), also known as mediation, any time there is a dispute about custody and/or visitation. When you file for custody and/or visitation, in most cases, you should expect to attend CCRC. Every county has a different system and procedure for CCRC, so it’s important for you to learn as much as you can about your particular county’s CCRC services.

The purpose of CCRC is provide a neutral environment for parents to work out their parenting disputes with the assistance of a mental health professional, called a Child Custody Recommending Counselor. These counselors are typically Marriage and Family Therapists (MFT), Licensed Clinical Social Workers (LCSW), or other similar professionals. Unless there is domestic violence, parents participate together in the same room with the counselor. The goal of the recommending counselor is to facilitate an agreement between the parents and allow them the first opportunity to make decisions about their own children.

CCRC can either be “recommending” or “non-recommending.” Most counties in California are recommending counties, meaning that the CCRC has the ability to issue written recommendations to be reviewed by the judge. Most judges rely heavily on the recommending counselor’s report in making custody and/or visitation orders.

There is no set time limit on these sessions. In some counties, CCRC can be as short as 15 minutes. Other counties allot three or more hours. The amount of time given to the parents typically depends on whether mediation is conducted the day of the hearing, or at a separate appointment prior to the hearing.

How and when do I serve my request for temporary orders?

If you are filing for temporary orders along with the petition, you will need to arrange to have a third party adult personally serve your spouse. If the other side has already “appeared” in the case by filing papers, you can arrange to have a third party adult serve by mail. For more information on service, see Step 1, Filing for Divorce.

Unless given special permission by the judge, you are required by law to serve your request at least 16 court days before the hearing. If the motion is served by mail, you must add an additional 5 calendar days to your deadline. Court days do not include weekends or any of the 13 state holidays, which are as follows:

  • New Year’s Day
  • Martin Luther King, Jr. Day
  • Lincoln’s Birthday
  • President’s day
  • Cesar Chavez Day
  • Memorial Day
  • Independence Day
  • Labor Day
  • Columbus Day
  • Veterans Day
  • Thanksgiving Day
  • Day after Thanksgiving
  • Christmas

State holidays that fall on a weekend are celebrated on a weekday.

There is little strategic value in delaying to serve your spouse with your motion. The more advance notice that can be given to the other side, the greater the opportunity is to reach agreements before the hearing date. For counties that have mediation prior to the hearing date, it’s important the motion is served as soon as possible so that the parents can attend mediation. If you miss your deadline to serve, you will have to file additional paperwork and obtain a new court date. In other words, the judge can’t give you your temporary orders until the other side has notice of what orders you’re seeking from the judge.

What happens if I change my mind about going to Court?

If you and your spouse reach an agreement, you may be able to avoid going to court if you are able to write up your agreement into a formal court order. The formal name for an agreement is a stipulation. A stipulation can become an order when the judge signs and approves of your agreement. This is usually called a Stipulation and Order. As part of your agreement, you can drop (vacate) the hearing.  Reaching an agreement and turning it into a court order is usually the best of both worlds. Not only do you remain in control of your situation and make your own decisions, but you also have the benefit of an enforceable court order.

How do I respond to a request for temporary orders?

You have the opportunity to tell the judge your side of the story by filing paperwork with the court before your hearing date. The paperwork always starts with a form called a Responsive Declaration to Request for Orders (FL-320). This form will give you a list of typical issues brought before the judge, including: child custody, visitation, child support, spousal support, and attorney fees. There is also another catch-all category of “other,” which allows you to request orders that fall outside of those general issues. Your job is to respond only to the issues addressed in the Request for Orders.

For example, if your spouse requests child custody and visitation orders, you need to tell the judge if you agree or disagree with the requested orders. If you disagree, you should state what you would like the judge to order. A Responsive Declaration is not the right paperwork for asking the judge for orders that are not part of the Request for Orders. Therefore, if your spouse asks for custody and visitation orders, you should not be responding by asking the judge for spousal support.

When should I file my Responsive Declaration?

The deadline to file a Responsive Declaration is usually 9 court days before your hearing date, unless the Request for Order states otherwise. Court days do not include weekends or any of the 13 state holidays. For a list of court holidays, please see above.

It is very important that you file your response in a timely manner. If you file your paperwork late, there is a good chance that your judge won’t be able to review it thoroughly before your court date. If your judge doesn’t get a chance to read your side of the story, it only harms you and gives your spouse an unfair advantage. Make sure that you provide a copy of your responsive declaration to your spouse by serving your spouse or your spouse’s attorney. If you don’t do so, your court date will be delayed and you risk a lecture by the judge.

What happens if I’m not ready for the hearing?

There are many reasons why you may not be ready for a hearing. Some of these typical reasons are as follows:

  • You were served a copy of the motion late;
  • You are very close to reaching an agreement and just need a little more time;
  • You want to be able to hire an attorney;
  • You were not able to attend CCRC (mediation) before the hearing date; and
  • You aren’t available due to a reason such as jury duty or a medical emergency.

Moving the hearing date is commonly referred to as a continuance. You can always ask the other side to agree to a continuance. This saves both of you time and money, although you may be required to pay a $20 fee to move your hearing date.

If the other side does not consent to continuing the hearing date, you can always ask the judge. Assuming you have a very good reason for not being prepared for your hearing, judges are often willing to give you a new court date. It’s very important that you be very clear in explaining to the judge why you need a continuance.

What happens if there is an emergency?

An emergency Request for Orders is called an Ex Parte. When an Ex Parte is filed, the judge is being asked to issue temporary emergency orders in a very short window of time. In order to make Ex Parte orders, the judge has to be convinced that there is a true emergency.

An emergency is defined on a case by case basis, but in general, most judges find the following to be emergencies that would warrant the filing of an Ex Parte

  • Domestic violence
  • Parental kidnapping
  • Other immediate harm to a child or children of the marriage
  • Imminent loss of a community property asset

Conversely, there are many issues that typically do not constitute an emergency, including but not limited to support, attorney fees, or a desire to “cut in line.”

Ex Partes require a great deal of detail and adherence to strict procedural requirements. It is always a good idea to use an attorney’s assistance in drafting and serving an Ex Parte Request for Orders. There are a lot of very specific state rules, local county rules, and statutory requirements that must be followed for an Ex Parte to be granted. It is very difficult for people who aren’t experienced family law attorneys to know where to look up these procedural rules and follow them.

What happens at the hearing?

Your judge will make orders regarding the issues listed in the Request for Order. Assuming all of the papers were filed on time, your judge will have reviewed both your position and your spouse’s position. You should be prepared to provide the judge with additional information as requested. Based on the documents filed with the court and what each of you says at the hearing, your judge will make oral orders. These orders need to be formally memorialized in writing with a form called a Findings and Order After Hearing. Depending on the issues, you may need to complete a number of other forms.

It is very important that the orders be written up accurately and filed with the Court. Your Findings and Order After Hearing will provide both you and your spouse with clarity on what the judge ordered. You are required to obey what the judge ordered, and failure to do so may result in fines, community service, or even jail time.

Step 6: Financial Disclosures

What is a financial disclosure?

A financial disclosure consists of four forms: FL-140, FL-141, FL-142 (or FL-160), and FL-150. It is a specific way of listing out all assets, debts, income, and expenses. In addition, you will state who owns or owes each asset or debt, when the property or debt was acquired, and provide a rough value of each item. As part of the divorce process, you will be dividing property, including debts, as well as determining support. It’s therefore very important that both you and your spouse know what exists.

Financial disclosures can be very tricky and tedious to complete. You are required to provide a substantial amount of documentation, including but not limited to the following:

  • Paycheck stubs
  • Federal and State income tax returns
  • Mortgage statements
  • Pink slips to vehicles
  • Real property deeds
  • Bank account statements
  • Retirement statements
  • Credit card statements
  • Life insurance policy statements

All of these documents need to be formatted in a very specific way. You will then need to serve all of your financial disclosures on the other side; however, you will only file FL-141 and FL-150 with the court.

There are two sets of financial disclosures required during the divorce process. The first disclosure is called the preliminary declaration of disclosure. The second disclosure is called the final declaration of disclosure. While many people choose to waive the final declaration of disclosure, you do not have the option to waive the preliminary declaration of disclosure.

For assistance on completing this form, please watch our California Divorce form completion video series.

Why do I have to do a financial disclosure?

California law states that you and your spouse have a fiduciary (financial) duty to the other. That means that there is a very high duty of loyalty. As part of that fiduciary duty, you are required to be an open book and allow your spouse to see all of your financial information and assets, even if you owned the asset prior to your marriage.

On a practical basis, accurate financial disclosures help spouses, their attorneys, and the court to identify the estate. Identifying the estate makes settlement negotiations easier because there is clarity on what exists and what is owed. You can’t divide what you don’t know exists. Accurate financial disclosures allow both parties to obtain a fair outcome with confidence.

When do I have to file my financial disclosure?

The law states that each party must file a financial disclosure within 60 days of filing his or her initial paperwork. Specifically, the Petitioner must file within 60 days of filing the Petition, and the Respondent must file within 60 days of filing the Response. Final disclosures are required to be filed no later than 45 days before trial. The goal of drafting, filing, and serving the financial disclosures early on in the case is to provide clarity and transparency.

How do I avoid having to do a financial disclosure?

In short, you cannot avoid having to do at least one financial disclosure, called the preliminary declaration of disclosure. It is required by law, period.

Is there any way I can get out of doing a financial disclosure?

No. Many people believe that their situation is unique and that there is some kind of exception to the law based on their circumstances. Common situations include the following:

  • We have a full agreement
  • Neither of us wants to do a disclosure
  • I don’t own anything of value
  • My spouse doesn’t own anything
  • We kept all of our assets and debts separate
  • I don’t have time
  • We both agreed to not do a disclosure
  • I don’t care about my spouse’s information
  • We already know what assets and debts we have
  • I don’t want support
  • My spouse doesn’t want support
  • We agreed that each of us will take our own assets and debts

In every one of the above-mentioned scenarios, the answer remains the same: you are required to complete your financial disclosure before moving forward with your divorce.

What happens if I don’t do my financial disclosure?

You will not be able to obtain a divorce without completing your financial disclosures. You may be subject to sanctions (fines), and may even lose the assets you refuse to disclose.

What happens if my spouse refuses to do his or her financial disclosure?

Unfortunately, assuming your spouse is participating in the case, you will not be able to obtain a divorce until your spouse completes his or her financial disclosure. You can ask the court to order your spouse to complete a financial disclosure, and in extreme situations, a judge may allow you to waive your right to your spouse’s financial disclosures in order to move forward with your case. The court can sanction (fine) your spouse and prohibit your spouse from producing evidence about his or her assets and debts if a financial disclosure has not been provided.

What happens if my spouse’s disclosure is inaccurate?

You will first want to identify the areas in which the disclosure is incomplete or inaccurate. The next step is to ask your spouse to supplement the disclosure and provide the correct and/or missing information. If your spouse still refuses to accurately disclose assets, you have a number of other options, including formal discovery and seeking court orders. Serving discovery is discussed further in Step 8.

How do I waive the final financial disclosure?

In order to waive your final financial disclosures, you and your spouse will need a mutual agreement to do so. You will both sign a document, called a Stipulation and Waiver of Final Declaration of Disclosure (FL-144) that affirms the following:

  • You have already completed and exchanged your preliminary declarations of disclosure;
  • You have completed and exchanged a current Income and Expense Declaration;
  • You have fully complied with the law and augmented your preliminary declarations of disclosure, including the disclosure of all material facts and information on the characterization of all assets and liabilities, the valuation of all assets that are community property or in which the community has an interest, and the amounts of all community debts and obligations;
  • You are entering into this waiver knowingly, intelligently, and voluntarily;
  • You understand that the waiver does not limit your legal disclosure obligations; and
  • Failure to complying with your disclosure obligations will result in your judgment being set aside.

While many people like the idea of waiving the requirement to file a final declaration of disclosure, it’s important to make the decision based on what is best for you. Saving yourself time now may hurt you in the future.

Step 7: Discovery

What is discovery?

Discovery is the formal method of obtaining relevant information from your spouse. During divorce proceedings, you are permitted to obtain discovery up until 60 days before trial. You can serve discovery directly on your spouse using the following general categories:

  1. Request for Production of Documents.

This is a formal legal request for documents, electronically stored information, or other records. It is a very useful tool to obtaining documents such as bank records, medical records, paycheck stubs, and tax returns.

  1. Interrogatories.

These are written questions that must be answered under penalty of perjury. There are two types of interrogatories in family law matters: Form Interrogatories and Special Interrogatories. Form Interrogatories are standard questions that are commonly asked in divorce cases. Special Interrogatories are questions that are specifically tailored to your situation and spouse.

  1. Requests for Admissions.

This requires your spouse to admit or deny the truth of a statement under penalty of perjury. If your spouse admits a statement it is considered to be a fact that can be used at trial. Requests for Admissions are generally unhelpful without being used in conjunction with interrogatories.

  1. Deposition.

A deposition is an out of court proceeding during which your spouse’s oral testimony is taken under penalty of perjury in front of a court reporter (stenographer). Your spouse is required to answer a series of questions, and the proceeding is memorialized in a written transcript.

You also have the option of serving discovery on third parties through something called a subpoena. Subpoenas can require the third party to provide documents, much like a Request for Production of Documents, or to testify in a deposition. Subpoenas can be very good tools for obtaining employment records, medical records, bank records, and other records that your spouse may not have in his or her possession.

Do I have to serve discovery?

Discovery is one of the many tools you have at your disposal during the divorce proceedings. It is 100% your choice as to whether or not you want to serve discovery. At its core, discovery is a process of information gathering. Every case is different, and as such, you need to determine whether or not discovery is the right strategy for your situation.

What are the benefits to serving discovery?

Discovery allows you to gain more knowledge and become better educated regarding the assets and debts of the marital estate, your spouse’s income, and the evidence your spouse intends to present at trial. The key to protecting your rights in a divorce is to make sure that you know what exists, including the good, bad, and ugly. You cannot fully protect yourself without knowing what is out there.

What are the disadvantages to serving discovery?

In general, discovery is one of the most expensive investments in a divorce. Not only does it cost money to prepare and serve discovery, but it also takes a substantial amount of time to review the documents and other answers to the discovery. If you subpoena records, you will likely have to pay the third party’s time and cost for providing the documents to you.

In addition to cost, discovery is often considered to be an act of war. Whenever you serve discovery, you should be prepared for your spouse to retaliate with the same requests and interrogatories. This may ultimately increase the conflict and tension.

Finally, discovery can be abused. Some people can use this tool as a weapon, and so long as it is masked under a guise of being relevant, you will have little protection from the law.

When are discovery responses due?

Discovery responses are generally due 30 calendar days after service. If the discovery was served by mail, you have an additional 5 calendar days, changing your deadline to 35 days after service.

What happens if I don’t respond to discovery? What happens if my spouse doesn’t respond to the discovery I serve?

If you or your spouse miss the deadline to respond to discovery, any objections to responding are automatically waived. As such, it’s very important to respond in a timely manner. If you need more time, you should ask for an extension. Discovery extensions are fairly common, and obtaining a written agreement for an extension that also preserves your ability to object to the discovery will protect you and your rights.

If a person fails to respond to discovery, or the answers are incomplete, the party seeking the discovery may file a motion with the court to compel answers or the production of documents. It is generally a good idea for both parties to discuss the outstanding discovery before going to the time and expense of filing a formal motion. If there was a response, this conversation, called a “meet and confer,” must happen before filing a motion to compel. If there was no response, the meet and confer is a suggestion but not a requirement.

Once all reasonable and good faith attempts have been made to resolve the issue, commonly known as a discovery dispute, then the motion to compel will likely be filed. A motion to compel must include the following:

  1. Request for Order;
  2. Declaration stating facts showing that a good faith and reasonable effort was made to resolve the discovery dispute;
  3. A separate statement that identifies what the request or interrogatory was, what was in the response, and how the response was deficient;
  4. Memorandum of Points and Authorities, which is the legal argument as to why the other side should be compelled (ordered) by the judge to produce the documents and/or information; and
  5. An Income and Expense Declaration (if requesting attorney fees).

The court can issue sanctions for failure to comply with the discovery process. These sanctions include the following:

  1. Monetary.

    Under the California Code of Civil Procedure, the “prevailing party” (winner) must be awarded attorney fees in a discovery dispute. While the code does not specifically state the amount of attorney fees, the goal is to encourage both sides to be transparent and comply with the discovery process.

  2. Nonmonetary.

    If a party continues to fail to respond to discovery, a judge can issue a number of various nonmonetary sanctions.

    1. Issue Sanctions. This is an order that designates certain facts are automatically “taken as established,” which means that they are presumed to be true.
    2. Evidentiary Sanctions. This prohibits a non-complying party from introducing certain evidence.
    3. Terminating Sanctions. This allows a judge to strike pleadings, including the initial divorce paperwork, and move forward in the divorce without the offending party.

A motion to compel must be filed no later than 45 days after the response to the discovery was filed. If a person does not respond at all to discovery, he or she can be served with a motion to compel at any time. In the event that a trial date has been set, a hearing on a motion to compel must be scheduled at least 15 court days before trial.

Step 8: Settlement

How do I settle my case?

A complete settlement involves a full resolution of all issues related to the divorce. Settlement is a two-way street, meaning that it truly has to be an agreement between you and your spouse. Your final judgment, or divorce decree, will recite the terms of your agreement. That means that you must explain what your agreement is on every divorce issue, even if you don’t believe that it’s important. Divorce issues include the following:

  • Child Custody
  • Visitation
  • Child Support
  • Spousal Support
  • Property Division
  • Debt Allocation/Reimbursement Claims
  • Attorney Fees
  • Marital Status

A full agreement will be detailed enough so that both of you understand the terms and conditions. It will also need to be written down in a proper legal format that can be approved by your judge. Even if you can’t reach an agreement on all issues, you should still try to resolve as many issues as possible.

By definition, settlement is technically a “lose-lose” resolution, which naturally does not sound positive. In order to settle, both of you will need to compromise. Neither spouse is going to get everything on his or her wish list. At the same time, a good settlement will be one that both of you can live with.

When can I begin settling my case?

It makes sense to begin discussing financial settlement as soon as both spouses have exchanged their preliminary declaration of disclosure (Step 5). As for the other issues, there is no automatic timeline for when settlement can begin. Your specific situation will dictate the best time to begin discussing settlement.

Keep in mind that you may not be in a position to settle your case for a long time, and there is nothing wrong with waiting. The saying “you didn’t get married to get divorced” is very applicable here. Your family is going through an enormous amount of change, and it can take time to get settled in. Your children may need to adjust to living in separate residences before you can determine whether or not the visitation schedule is best for them. You may realize that your holiday schedule isn’t working.

As for the issue of support, it can be very daunting to try and determine what amount is reasonable. Divorce is a time of upheaval, and many people have to move to new residences and even new cities. Monthly budgets change, some spouses are looking to enter the workforce, and both spouses are recovering from the financial impact of divorce. In other words, rushing to resolve the issue of support can be financially detrimental to one or both spouses. Take your time.

What are the advantages to settling my divorce?

While settlement for the sake of settlement is rarely a good idea, there are many advantages to reaching a resolution with your spouse. Settling your case with your spouse allows the two of you to retain control over your own lives. You and your spouse are in the best position to determine what is best for you and your children. No matter how compassionate your judge is, that person is still not going to have to live with the consequences. You and your spouse will live with the decisions that are made in your divorce. It is your choice as to whether or not you want to be the ones making the decision, or if you want to give that power to a third party who will never really know you as people.

Settlement allows for greater creativity in the divorce process. California divorce laws are intended to be a blanket, “one-size-fits-all” approach that is generally presumed to be fair. By settling, you and your spouse have the opportunity to do better than what the law gives you. You can come up with unique and creative solutions to your problems. While a judge is limited by the law, you and your spouse are only limited by your creativity and willingness to work together.

In addition, settling your divorce is very empowering and teaches you important tools to working together in the future. Divorce changes your relationship, but in most situations, it does not end the relationship. Between mutual friends, children, family, and finances, it’s highly likely you will continue to be tied together for years after your divorce, if not forever. It is your choice as to whether you want your future relationship to be cordial and friendly, or contentious and bitter. Learning how to communicate effectively during the divorce is proof positive that you’ll be able to do so in the future. Once your divorce is done, you want it to really be done. Don’t be one of those cases that are in and out of court decades after the divorce judgment.

Can my judge help settle my case?

A judge can help you with your case through something called a Settlement Conference. A Settlement Conference is a court hearing where a judge assists parties with resolving their differences. Judges assist with the settlement process by listening to both sides and suggesting compromises. Some judges will provide input as to their thoughts on the legal aspects of the issues or give insight as to how they might rule if the issues were presented at trial. Settlement Conferences, if used correctly, can be an effective and positive method to resolving divorce cases.

How do we write up a final settlement agreement?

A final settlement agreement is documented in a divorce Judgment. If it is an agreed-upon judgment, it is called a stipulated judgment. The Judgment contains the legal terms and provisions as related to your agreements. Every county has its own specific procedural requirements for a divorce judgment, but in general, you will be required to use form FL-180 and cover the following issues:

  1. Child Custody.

    There are two types of child custody, legal and physical. Your agreement should state whether you will share joint custody, or if one parent will have sole custody.

  2. Visitation.

    You should have a clear parenting schedule that defines when your children are with each parent. Detailed visitation agreements will also contain provisions related to holidays and vacations.

  3. Child Support.

    The amount of child support payable from one parent to the other should be stated. If you are choosing an amount of child support that deviates from what a judge would order under the state guidelines, you should be clear as to why you are choosing to do something different. Child support agreements should also clarify which parent is claiming the children as dependents on tax returns, how uninsured medical expenses, child care, extracurricular activity, and other child-related expenses are divided, and who will be providing health insurance.

  4. Spousal Support.

    The amount and duration should be specified as to each spouse, as well as the tax consequences.

  5. Property Division.

    You should be prepared to clearly state what you and your spouse each receive in the divorce. This includes everything from the household items to the retirement accounts.

  6. Debt Allocation/Reimbursement Claims.

    It is very important to clarify which spouse is responsible for what debt in order to avoid missed payments and credit damage. If one spouse owes the other spouse money, the payment schedule and/or due date should be listed.

  7. Attorney Fees.

    Even if each of you will be paying your own attorney fees, you should say so in the Judgment. If one spouse is contributing towards the other spouse’s attorney fees, you will want to state the amount and the payment schedule and/or due date for the fees.

  8. Marital Status.

    You have the option to pick the date you become single again, although you generally cannot pick a date before you actually submit your judgment or before the mandatory six month waiting period. If you do not have a preference, the date will be selected on your behalf.

Step 9: Trial

When is a divorce case set for trial?

When a case can’t be resolved through settlement, a trial will be set in order finalize the divorce. Trial dates are typically only scheduled after all other settlement options have failed, including a Settlement Conference. Trials can be requested by one or both of the spouses, but there are times when the judge will set a trial, even if neither party asks for a trial date.

In some situations, bifurcating (separating) certain divorce issues from the rest of the case can actually aid in settlement. One of the most common bifurcated issues is regarding the date of separation. Once a judge makes a ruling on the date of separation, it can be easier for spouses to resolve their property and debt issues. Bifurcating certain issues can save time and money, and if you fall into that category of cases, you may wish to consider asking your judge for a bifurcated trial.

What happens if I don’t want to go to trial?

Unless you can settle your case, the only way you can finish your case is through a trial. While you may be able to temporarily delay your case being set for trial, you will not be able to do so forever. At some point in time, the judge will set a trial date.

How long will my trial last?

One of the questions the judge will ask is for a trial time estimate. What that means is that the judge wants to know each spouse’s estimate as to the length of trial in. Trial days are very different than business days. A half day is considered to be somewhere between two and three hours, and a full day is about six hours. You will need to tell the judge how many days you think your trial will take.

When giving the judge a trial time estimate, it’s important to take a number of points into consideration, including the following:

  • The judge will take breaks throughout the day, even for a half day trial;
  • How many witnesses you intend to have testify at trial;
  • The complexity of your disputed issues; and
  • How many exhibits you want the judge to review

It’s generally better to err on the side of caution and overestimate (within reason), rather than underestimate the amount of time for trial. If you underestimate and aren’t able to finish within your allotted time, the judge can declare a mistrial, which would result in the trial having to start all over again. Alternatively, the judge can also give you another trial date, which may be many months later.

Is there a jury?

Almost all divorce trials are decided by a judge, not a jury. This is called a bench trial.

What kind of witnesses testify?

There are three big groups of witnesses who can testify at trial:

  1. Party Witnesses.

    Both spouses will have to testify at trial. Although the spouses are also lay witnesses, unlike most lay witnesses, they are allowed to hear all of the other witnesses’ testimony.

  2. Lay Witnesses.

    These witnesses testify about their personal knowledge of the facts in your case. They tell the judge what they’ve personally observed. These witnesses need to provide relevant information regarding the disputed issues in your case.

  3. Expert Witnesses.

    These witnesses testify based on their special knowledge and proficiency in a particular field. The judge can consider the witness’ opinion about the evidence or about facts within the expert’s opinion. There are two types of expert witnesses, those appointed by the court, and those who have been privately retained by one of the parties. Court-appointed experts, also called “730 Experts,” are appointed under Evidence Code §730. These experts are considered neutral, and their job is to report their expert opinions to the judge. Privately retained expert witnesses are professionals who provide support for a party’s position.

What kind of preparation is involved in a California divorce trial?

Each county has its own unique set of specific pre-trial orders. These orders need to be carefully followed, and failing to do so may result in you not being able to present your evidence. Most counties will require you to prepare, exchange, submit, and/or file the following:

  • Exhibit List.

    You need to provide the other side and the court with a summary of all of the documentary evidence you intend to present at trial.

  • Exhibits.

    Exhibits are anything other than testimony that can be perceived by the senses and include things such as records, photographs, charts, tangible objects, and letters.

  • Witness List.

    This is a list of all of the people you intend to call as witnesses at trial. Many times you will need to provide a brief description of the testimony, as well as the witness’ contact information.

  • Trial Brief.

    A trial brief is a roadmap of your case. It summarizes the issues, facts, and law in support of your trial position.

What should I expect at trial?

Trials generally follow the same organizational pattern. The Petitioner puts on his or her case first, followed by the Respondent. This is neither a good nor bad thing – someone has to go first.

  1. Procedural Issues.

    The judge will confirm that both parties are ready to proceed with trial. This includes reviewing a number of details such as ensuring that both sides have all of the exhibits, paid their trial fees, and discussed the case.

  2. Opening Statement.

    You have the option to provide an opening statement at trial. Many family law judges prefer to skip this step; however, it is an opportunity to provide the judge with an oral roadmap and present a factual summary of the case.

  3. Testimony.

    Each witness is called up to the stand to testify. This initial testimony is called direct testimony. Direct testimony is usually presented with open-ended questions that start with who, what, where, when, how, and why. Once direct examination is done, the other side has a chance to ask questions by cross-examinations. Cross exam questions typically are framed in a way where the witness must answer either “yes” or “no.” Witnesses answer questions regarding exhibits and provide testimony in support of or against an exhibit.

  4. Closing Argument.

    Once all of the evidence has been presented and all witnesses have been questioned, each side has the opportunity to provide a closing argument. A good closing argument puts all of the pieces of the puzzle together to create a clear picture of the desired outcome. It explains how all of the facts, law, and evidence work together in your favor.

Step 10: Post-Judgment Issues

How do I know when my divorce is final?

You will receive your filed Judgment back from the court with a judge’s signature on it. In addition, you will also receive a separately filed Notice of Entry of Judgment. Once you receive these documents back, you will know that your divorce is final.

How long does it take to get my judgment back from the court?

After you submit your proposed Judgment to the court, it can take weeks and even months before your judge is able to review and approve it. Until it is filed, you are technically not done with your case. This waiting period can be extremely frustrating and stressful, since there is little you can do to speed up the process without hiring a private judge. If you choose to hire a private judge, your judge will be able to review and sign off on your judgment must faster than a public judge.

What should I do when I get my divorce decree back?

You will first and foremost want to review your judgment to make sure you are in full compliance with the orders. It’s easy to forget some of the steps you need to take, especially when it’s been months since you originally submitted your judgment to the court. Common examples of what you may need to do after the divorce include the following:

  • Execute a quit claim deed to transfer title of real property
  • Refinance property
  • Change vehicle titles
  • Obtain your own auto insurance
  • Obtain your own health insurance or sign up for COBRA benefits
  • Close or separate joint bank accounts
  • Cancel joint credit cards or remove your spouse as an authorized user from cards under your own name

It may be a good idea to create a checklist in order to avoid missing any important action items. You may also want to consider performing a credit check to ensure that you have fully separated your credit from your former spouse’s credit.

When can I change my name?

If you requested the restoration of a former name in your divorce judgment, you can begin changing your name once you receive your filed judgment back from the court. You will need to start with filling out an application for a new Social Security card with your restored name. Once that happens, go to your local DMV to get a new driver’s license. Armed with your new Social Security card and driver’s license, you can then change all of the other accounts in your name, including bank and credit card accounts. You will also need to provide your new name to your employer to change your payroll and Human Resource records.

What should I do with my estate plan?

  1. Change your will.

    Revoke your will and draft a new one if you have not already done so. If you don’t have a will, now is the time to make one. While California law states that a divorce revokes any bequests that your will made to your former spouse, you should still update it. That way, you can clarify where the property that previously would have gone to your former spouse would go to instead.

  2. Name an executor.

    If you had an estate plan prior to your divorce, it’s likely that you had listed your spouse as your executor. You will want to consider changing executors.

  3. Name a guardian for your minor children.

    In the event that both you and your spouse die, you will want to ensure that your children are cared for by an individual or individuals that you trust.

  4. Update beneficiary designations.

    You will want to review all assets that may not be part of your will. These assets include retirement accounts, life insurance policies, and bank accounts.

  5. Make new powers of attorney.

    These documents give someone authority to act for you if you are somehow incapacitated. This typically includes an Advance Healthcare Directive, which allows another person to make medical decisions on your behalf. During marriage, this person is typically your spouse. As such, you will want to consider designating someone else to make these important decisions about your life.

  6. Consider a living trust.

    A living trust is a written document that is a partial substitute for a will. Your assets are put into a trust, administered for your benefit during your lifetime, and ultimately transferred to your beneficiaries upon your death. If you own property and have minor children, a living trust is typically a good idea.

When are the retirement accounts divided?

Many divorce judgments contain orders that the retirement accounts need to be divided. The division of retirement accounts such as 401(k) plans and pensions must be done with a separately drafted order, called a Qualified Domestic Relations Order (QDRO) or Domestic Relations Order (DRO). These orders create and recognize the existence of a spouse’s right to receive all or a portion of the retirement benefits in the other spouse’s name. You should not delay in preparing the QDROs. Dividing retirement accounts can be very complicated and is often mishandled. As such, you will want to start the process as quickly as possible.

Dividing an IRA does not require a QDRO or DRO. It can be done by a transfer or a rollover by the IRA custodian. You will want to make sure that you do not divide the IRA before there is an established order to do so, and you do not want to delay once there is a valid order. If you transfer too soon or take too long, there may be negative tax implications.

The key to remember with retirement division is that it is not something that automatically occurs. A divorce judgment is not enough. It is up to you and your former spouse to take these last steps and ensure that your rights are protected.

FINAL THOUGHTS:

No two divorces are the same. Some of the steps listed in this guide will not be taken by all divorcing couples. Other steps are required, and it is vital that you take the right steps for you and your family in order to ensure a fair outcome. We hope that you take care of yourself during this difficult time in your life. In order to better understand the divorce process and how it relates to you, please take the next step by contacting us.

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