Divorce and Separation

Parties in California can legally separate or end their marriage in three ways: dissolution (divorce), legal separation, and nullity. In short, a dissolution of marriage divides marital property and settles support and parenting arrangements for children. Legal separation similarly divides property and makes orders for support and parenting, but the parties remain married. A nullity declares a marriage void or voidable and restores the couple to their prior status.

Dissolution of Marriage

The process of dissolution begins when one spouse (the so-called petitioner) files the Petition (FL-100) and Summons (FL-110) forms with the Family Law Division of the Superior Court. The petitioner must also ensure that copies of the Petition and Summons, stamped by the clerk of the court, together with a blank Response (FL-120) form are served on the other spouse (the respondent).

If you’re the petitioner, you cannot personally serve these papers on the respond-
ent. Service must be instead performed by the county Sheriff’s Department, by a private process server, by any other person who is neither a minor nor a party to the dissolution proceedings. Service may also be performed via mail. Following service, the server completes the Proof of Service of Summons (FL-115), which the petitioner files with the court.

The respondent has thirty days from service to respond by filing and serving the Response. Timely completion of this form — which is almost identical to the Petition (FL-100) — ensures that the respondent can participate fully and equally in the dissolution process. Hereafter, the course of a dissolution will differ greatly depending on whether the parties settle issues of property division, support, and child custody through litigation or mediation.

Litigation is inherently adversarial. Indeed, divorce litigation is among the most painful and damaging experiences that a person will ever encounter. It’s also an extraordinarily expensive way to end a marriage, sometimes depleting the parties’ life savings in professional fees.

Mediation is an altogether different approach to marital settlement. Instead of framing the effects of marriage — property, debts, and children — as spoils to contest, it reframes the divorce as a set of problems to be solved. For example, How should the property and debts be divided? How would you like to arrange the care of your children? How will you share in the cost of raising your children?

Legal Separation

Identical in procedure to a dissolution of marriage, a legal separation culminates in a division of property and orders for support and parenting of any children. Also like dissolution, the parties to a legal separation may reach settlement terms via litigation or mediation. The most common reasons to file for legal separation are the following:

• Religious and moral beliefs. Couples whose beliefs discourage divorce can legally separate and live apart while remaining married.
• Financial expediency. Benefits such as participation in a spouse’s health insurance plan or entitlement to a spouse’s Social Security that might otherwise terminate with a dissolution of marriage may remain payable to a legally separated spouse.
• Speed. Either party to a dissolution in California must have resided in the state for six months and in the county of filing for three months prior to filing the Petition. Couples who don’t meet these requirements but who want a speedy divorce can begin an action for legal separation — which has no residency requirements — and later amend that action to a dissolution of marriage.

Nullity

In rare instances, a spouse can obtain a nullity judgment i.e. a judgment that the marriage has no legal standing. A marriage may be voidable under the following circumstances as detailed in California Family Code §2210: one of the parties was a minor at the time of marriage and did not subsequently consent to cohabit as husband and wife; a party is of unsound mind; one party is physically incapable of consummating the marriage; or the marriage was obtained by fraud or force. A marriage may also be determined void from the outset — and likewise subject to a nullity judgment — in cases of bigamy, polygamy, and incest (§2200–2201).