Newport Beach, CA
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Divorce Process FAQs
- How long does a divorce take?
- What are the grounds for divorce in my area?
- How soon will I be divorced? How can I shorten the process?
- What is the difference between a contested divorce and an uncontested divorce?
- I have been told that we live in a no-fault state. What does this mean? My spouse had an affair, so isn’t he at fault for breaking up our marriage?
- Do we both file for divorce?
- Can one lawyer represent both my spouse and me? I think it would save us both time and money.
- Can I dispute the amount of fees charged by my lawyer? I feel I’m being ripped off.
- If I move out of our home during our divorce, will I lose my rights to it?
- What if I don’t agree with my lawyer’s tactics and strategies? Can I get a second legal opinion without firing my lawyer?
- I need to discuss certain aspects of my case. Can I call my spouse’s lawyer if mine is out of town?
- Should I tell my lawyer the whole truth? There are things I would like to keep to myself.
The length of time it takes to get a divorce depends on how well the parties cooperate and work together to reach an agreement. Parties to a divorce case can reach a full, written agreement resolving all issues in their divorce case any time. An agreement can be filed with the court after the parties have exchanged their Preliminary Declaration of Disclosure (i.e. financial documents). An agreement could occur at the outset of the case. The parties’ agreement can be filed and can become an Order when signed by the judge. All parties to divorce have to wait a minimum of six months and one day from the date the court obtained jurisdiction over the parties before the divorce can be “final” in terms of severing the marital status. Cases can take much longer when parties do not cooperate and cannot agree on settlement.
What are the grounds for divorce in my area?
There are 2 grounds for Marital Dissolution in California:
Irreconcilable differences; and
Permanent legal incapacity to make decisions
How soon will I be divorced? How can I shorten the process?
In California, a party cannot be divorced any sooner than six months and one day after the other party is served with the Summons and Petition for Dissolution of Marriage.
That does not mean that a party is automatically divorced on that magical date. It merely reflects a “waiting period” that dictates that the final divorce cannot be accomplished any sooner than that date.
Many other factors dictate how long or how short the divorce can take from beginning to end. Assuming both parties can agree on terms and meet other procedural requirements, the divorce could theoretically be final after that initial waiting period. However, often it takes longer due to the exchange of information (formal discovery) and due to the lack of cooperation by either party in providing mandatory Declarations of Disclosure regarding the parties’ assets, liabilities, income and expenses.
The level of contentiousness can also serve to delay the conclusion of the divorce. To the extent that family law litigants can cooperate and agree on the issues in their matter, the less time it will take to complete the divorce. Being organized and producing documents and information in a timely manner will also aid in “shortening” the time it takes to conclude the divorce.
In California, it is possible to “bifurcate” the issue of marital status from the remaining issues in the case and to obtain a divorce before the other issues such as support, custody and property division are resolved. This too requires that Declarations of Disclosure have been exchanged. The parties may stipulate to the termination of marital status, or one party may file a motion with the Court; such motions are routinely granted such that stipulations are more often utilized. It is wise to consider two of the primary effects of terminating marital status: the inability to file joint tax returns and the impact on health insurance, once the parties are no longer legally married.
A party should consult with his or her attorney if considering an early termination of marital status.
What is the difference between a contested divorce and an uncontested divorce?
A contested divorce is one in which the parties are not able to come to an agreement to resolve the issues. A contested matter is litigated in court in front of a judge and the judge will ultimately make a decision (a ruling) on each issue presented.
An uncontested divorce is one in which the parties are successful in negotiating a resolution to all of the issues relating to the divorce including: custody of the children, support, division of property and attorney’s fees. An uncontested divorce can be accomplished by preparing the required paperwork and filing it with the Court. If a party so chooses, he or she never needs to step foot in a courtroom to complete the divorce process.
I have been told that we live in a no-fault state. What does this mean? My spouse had an affair, so isn’t he at fault for breaking up our marriage?
No. The reason the marital relationship broke down is of no consequence with regard to how the marital estate is divided and the assets are distributed between the parties. No fault means that the court will attempt to divide the marital community property assets and obligations equally between the parties irrespective of the reasons for the divorce.
No. The first party to file is called the “Petitioner”. Once the other party is served with the Petition for Marital Dissolution, the party served has 30 days in which to file a Response to the Petition. That party filing the Response is called the “Respondent”.
Can one lawyer represent both my spouse and me? I think it would save us both time and money.
No. An attorney can only represent and advocate for one of the parties. It would be a conflict of interest for one attorney to represent both parties in a marital dissolution action. However, one attorney can act as a “Mediator” for both parties. In the “mediator” capacity, the attorney is not the advocate for either party, but serves in a neutral capacity to help guide the parties to a resolution of the issues in their case.
Can I dispute the amount of fees charged by my lawyer? I feel I’m being ripped off.
Yes. The Orange County Bar Association provides a service for the resolution of attorney-client fee disputes. Additionally, a civil suit can be filed by the client in the Superior Court.
If I move out of our home during our divorce, will I lose my rights to it?
No. However, you may lose the ability to continue to reside in the home if the issue goes to court. Leaving the marital residence may also prejudice your rights with respect to issues of custody if the children are residing in the residence. Before moving out of the residence (absent a legitimate fear of your safety), you should first consult with an attorney to evaluate the particular facts of your case.
What if I don’t agree with my lawyer’s tactics and strategies? Can I get a second legal opinion without firing my lawyer?
Yes. However, trust and confidence in your attorney is the mainstay of the relationship, and if you have second thoughts or have lost confidence in your attorney, it is probably best to consider hiring different counsel.
I need to discuss certain aspects of my case. Can I call my spouse’s lawyer if mine is out of town?
No. Your spouse’s lawyer under the California Rules of Professional Conduct is precluded from having any direct communication with you unless your attorney has given your spouse’s attorney express written consent to the communication.
Should I tell my lawyer the whole truth? There are things I would like to keep to myself.
Yes, your lawyer needs to know the whole truth in order to effectively and competently represent your interests. Remember, whatever you tell your attorney is strictly protected by the attorney- client privilege and cannot and will not be revealed to anyone.
