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Divorce &
Legal Separation
All divorces in the State of California
start with determining the proper county (for example, "Orange
County") to file the petition for divorce. Residence is the
most important factor. So long as one of the spouses has been a
"resident" of California for six months AND of Orange County for
three months immediately preceding the filing of the divorce
petition, the divorce may be filed in Orange County. This
"six-months/three-month" residence requirement applies only to
marriage dissolution (divorce) actions. There is no residency
requirement for filing a nullity (annulment) or legal separation
petition.
Let us discuss the difference between a
divorce and legal separation: A legal separation judgment does
not end either spouse's marital status. Therefore, it is not a
"divorce" and for some an attractive option when, for religious
or personal reasons, they do not wish to be divorced in the
legal sense. Legal separation is also helpful when a divorce
would cause either spouse to lose their eligibility for medical
insurance.
Legal separation however has to be agreed
upon by both spouses. If one party wants a divorce, the court
will issue a divorce and not a legal separation.
Many also use the legal separation process
to avoid the six-months/three-month residence requirements.
There is no residency requirement to file a petition for legal
separation. Thus, either spouse can file a legal separation
action and then, when that spouse has met the residency
requirement, he or she can change the legal separation
proceeding to a divorce.
So, how does it all start? A divorce
action starts with filing a "petition for dissolution of
marriage". After the petition has been filed and personally
served on the other spouse, the spouse served with the petition
has 30 calendar days to respond. Failure to respond means that
a request for entry of default can be filed against the spouse
served with the petition. The default process can be complex
and there are legal ways to set aside a default. We encourage
you to contact us if you have taken a default or one has been
taken against you so we can guide you through this process as
time is very much of the essence.
Assuming the petition is served and a
response to the petition is filed, most divorce cases that
involve disputed issues go through a "discovery" process.
Discovery is the sharing of information and documentation. It
includes interrogatories (written questions) under oath,
producing documents under oath, admitting to certain facts under
oath and conducting oral examinations under oath (called
depositions).
If the spouses have a dispute regarding the
ability of one spouse to work, one spouse may seek a vocational
evaluation of the other spouse. The vocational evaluator is
essentially an expert witness that will conduct an evaluation
and give a report to the court as to the spouse's ability to
work, or ability to earn more than what he or she is earning.
Most divorces at some point get to
mediation. Mediation is a formal method of trying to settle a
case. In Orange County, mediation of child custody issues is
mandatory and is part of the court process. The parties in an
Orange County divorce (without the presence of the lawyers) go
through a mediation process. Other issues such as property
disputes, spousal support, etc. can also be mediated but that
mediation is a "private" mediation, paid for by the parties and
generally in front of a retired judge that attempts to settle
the issues. Your lawyer and the lawyer of your spouse are
present and an integral part of the private mediation.
If a divorce cannot be settled, then it
must at some point proceed to a formal trial. Divorce cases in
Orange County (or any county) do not involve a jury but only a
judge. Divorce trials can last from hours to days depending on
the complexity of the issues.
After the divorce case settles or trial is
concluded, a judgment or order is entered. That judgment states
the terms of the final resolution or the judge's decision.
DIVORCE AND
LEGAL SEPARATION ARTICLES
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