General California Divorce Rights in Santa Clara
The Law Offices of Don Glass, Esq, in Santa Clara specializes in fast low cost uncontested divorce and legal separation.
There are 3 main ways to end a marriage or registered domestic partnership in California: divorce, legal separation, and annulment. It is not necessary for both spouses or domestic partners to agree to end the marriage. Either spouse or partner can decide to end the marriage, and the other spouse/partner, even if he or she does not want to get a divorce, cannot stop the process by refusing to participate in the case.
If a spouse or domestic partner does not participate in the divorce case, the other spouse/partner will still be able to get a “default” judgment and the divorce will go through in Santa Clara.
California is a “no fault” divorce state, which means that the spouse or domestic partner that is asking for the divorce does not have to prove that the other spouse or domestic partner did something wrong. To get a no fault divorce, 1 spouse or domestic partner has to state that the couple cannot get along. Legally, this is called “irreconcilable differences.”
After you decide how you want to end your marriage or domestic partnership, you need to plan your case ahead of time. Think about how you are going to handle your case. Planning before you start and talking to a lawyer can save you time and money as you go through the court process. And keep in mind that, normally, it does not matter who is the first to file the divorce or separation case. The court does not give any preference to the first person to file or a disadvantage to the person who responds to the case.
If you want to end a registered domestic partnership, domestic partners must also file for dissolution (divorce), legal separation, or annulment to end their relationship. There is a limited exception where domestic partners can end their relationship in a summary process through the Secretary of State if they have been registered for less than five years and they have no children, no real property, very few assets or debts, and a written agreement on dividing their property, in addition to other restrictions in Santa Clara.
Federal law does not recognize domestic partnerships for most purposes, such as Medicare, immigration law, veterans’ benefits, and federal tax laws. Domestic partners may be recognized for some federal purposes, such as Social Security. In addition, domestic partners may not have the same rights if they leave California because other states may not recognize domestic partnerships. Talk to a lawyer if you are ending a domestic partnership and any of these issues may apply to you. You may also want to talk to an accountant who is knowledgeable about these issues.
Prepare for Filing Your Case in Santa Clara
Once you know that you are ready to file for divorce or legal separation and do not qualify for a summary dissolution, the rest of this section will help you with the steps required to get your case started. And keep in mind that if you are in both a same-sex marriage and a domestic partnership with the same person, you can dissolve both at the same time.
Remember, to file for divorce of a marriage in California, either you or your spouse must have lived in California for 6 months and in the county where you are filing your case for at least 3 months. If you do not meet these requirements, you can file for legal separation, then file an amended petition for divorce in the county in which you live once their residency requirements are met.
EXCEPTION: Same-sex married couples who got married in California but do not live in California and live in a state (or states) that will not dissolve a same-sex marriage, can file to end their same-sex marriage in California, regardless of these residency requirements. You must file in whichever county you were married. Keep in mind that if neither of you lives in California, the court may not be able to make orders about other issues like property and debt, partner support, or your children. If this is your situation, talk to a lawyer with experience in same-sex marriage laws.
If you want to end a domestic partnership registered in California, either through a divorce or a legal separation, neither you nor your partner needs to live in California. Read the California residency requirements in the Basics section for more detail about whether you can file for divorce or legal separation in California. The divorce or legal separation court process can get very complicated, especially if you want to include support orders, child custody orders, and orders dividing your property.
Filing for Divorce or Separation in Santa Clara
Once you are ready to start your divorce or legal separation case for your marriage or domestic partnership, and know which county to file your case in, you are ready to start your court case. Keep in mind that there are many forms to fill out throughout the court process, and it can get very complicated, especially if you want to include support orders, child custody orders, and orders dividing your property.
To file for divorce or legal separation, you have to fill out the same forms. If you want specific legal advice about how to fill out your court forms, talk to a lawyer. What you write on your court papers can be very important and can affect the outcome of the case. It is very important to be accurate and complete, and a lawyer can help you figure out how to fill out the forms so that they accurately reflect your position. This is especially important if you think you and your spouse or domestic partner are likely to have disagreements about the issues that the court forms ask you about.
File Your Forms with the Court Clerk
Turn in your forms (the originals AND copies) to the court clerk. If there are no obvious errors, the clerk will take the original of each form and return the copies to you, stamped “Filed.”
You will have to pay a filing fee. Keep in mind you are filing your first papers, a petition (often called a “first appearance”). If you want the judge to make temporary orders for child or spousal support, bill payment, protection from domestic violence, or other issues, you must fill out and file other forms.
Serve Your First Set of Court Forms
The law says your spouse or domestic partner must be told that you have started the legal process for a divorce, legal separation, or annulment. To do this, you must “serve” your spouse or domestic partner with copies of all your court papers. The judge CANNOT make any orders or judgments in your divorce or legal separation case until your spouse or domestic partner has been properly “served.”
How the papers must be served in Santa Clara
The papers can be served in 1 of 2 ways:
This means that your “server” hand-delivers a copy of all the papers (and the blank forms) to your spouse or domestic partner. In most cases, you will have to do personal service for your initial divorce or legal separation papers.
Service by mail with a Notice and Acknowledgment of Receipt
If you and your spouse or domestic partner are cooperating on your family law case, and your spouse or domestic partner agrees to accept service by mail, this can be an easy and less expensive way to serve the papers.
Someone 18 or older (NOT you) that is not involved in the case must mail copies of each of the forms you filed with the court, the blank forms listed above, and 2 copies of the Notice and Acknowledgment of Receipt (Family Law).
File your proof of service in Santa Clara
Once you serve your spouse or domestic partner with copies of your papers, you must show the court that you completed this step. To do this, your “server” has to fill out a proof of service form telling the judge when and how he or she served the papers on your spouse/domestic partner.
After you serve your forms
Wait 30 days for the other party to respond
Your spouse or domestic partner (the respondent) has 30 days from the date he or she was served with the petition to file a response with the court. Depending on whether the respondent responds within those 30 days or not, your next steps will vary.
Responding to Divorce or Separation in Santa Clara
Either spouse in a marriage or partner in a registered domestic partnership can ask the court to end their legal relationship.
If you have been served with a petition and summons for dissolution (divorce) or legal separation, your spouse or domestic partner is asking the court to end your relationship. In California, as long as 1 person wants to end the marriage or domestic partnership, the court can end it, even if the other spouse or domestic partner does not agree or want to get divorced or legally separated.
A married couple or registered domestic partners can end their marital status in California 6 months after the first papers are filed at the courthouse and copies of these papers are served on you, the respondent.
Once you are served, you have several options:
You can do nothing — which means that whatever your spouse or domestic partner is asking for in the Petition will probably be granted. The judge will base his or her decision about property, support, and custody and visitation (if you have children together) only on what your spouse or domestic partner has requested in the Petition.
This situation is called a “true default” because you are “defaulting” by not responding and are not involved at all.
In a “true default” you are giving up your right to participate in the case.
You can do nothing because you have a written notarized agreement with your spouse or domestic partner where you both agree to end your marriage or domestic partnership. And you agree about other things like the division of your property and your debt, spousal or partner support, and, if you have children together, child support and custody and visitation orders.
- In this case, you also “default” because you are not filing a response.
- BUT you are having a say in the final outcome because you are reaching a written agreement with your spouse or domestic partner. So this is a “default with agreement” case.
You file a response with the court but also reach an agreement with your spouse or domestic partner about all the issues.
- If you choose this option, it is considered an “uncontested” case because you and your spouse or domestic partner are not fighting over the issues. You are agreeing to the terms of your divorce or legal separation.
You file a response with the court in which you disagree with what your spouse or domestic partner is asking for.
- This situation is considered a “contested” case since you and your spouse or domestic partner do not have an agreement and will need the court to make decisions in your case.
If you decide to file a response, you have 30 days from the date you were served with the Summons and Petition to respond.
Working Out an Agreement with Your Spouse or Domestic Partner
Whether you choose to respond or not to your spouse’s or domestic partner’s petition for divorce or legal separation, you can still work out an agreement.
In your agreement, you can both agree to end your marriage or domestic partnership. You can also agree about:
How to divide your property and your debt,
Whether anyone will pay the other spousal or partner support, and
What child support and custody and visitation orders you will need, if you have children together.
You may be able to reach an agreement on all of these issues, or only some of them. When you sign the agreement, make sure that you understand everything you are agreeing to. For some issues, like child support, when you have an agreement you have to meet certain legal requirements, so make sure you follow the rules.
If you are not sure if you and your spouse/partner will be able to work out an agreement, but you want to make sure you have a say in how the case proceeds, then file a response.
If You Decide to File a Response (and Have, or Want to Work Out, an Agreement)
You can file a Response and still work out an agreement with your spouse or domestic partner. Make sure you file your Response within 30 days of being served with the Petition. This is considered an “uncontested” case.
Completing Divorce or Separation in Santa Clara
The forms and instructions you use to finish your case depend on whether:
The respondent in the case filed a response,
You and your spouse or domestic partner have an agreement about:
Ending your marriage,
Child custody and visitation,
Support issues (including child, spousal, and partner support), and
How to divide your property and debt.
There are many forms to fill out, and it can get very complicated if you want to include child support and child custody orders.
Over 70% of divorce or legal separation cases are rejected at the Judgment Stage even for “simple” cases because the forms were completed Improperly.
The Law Offices of Don Glass, Esq, in Santa Clara specializes in fast low cost uncontested divorce and legal separation.