Most clients of our law firm are first-generation immigrants from China. In China, couples go to the same office for marriage certificates as well as divorce papers. However, that is not the case in the United States. A bewildered client once asked me: “To get married here, I need to go to the county’s office, but I cannot get a divorce at the same office?” In the U.S., if a couple wants a divorce, they must go to the court pursuant to the Family Code of each state.
Divorce is also called legal dissolution. In the U.S., it is easy to dissolve the marriage status of two people; however, the real issues lie in property division, child visitation, child custody, etc. at the time or long after the dissolution of the status. In reality, divorce can be difficult for a wide range of reasons. That’s why we lawyers recommend that anyone contemplating a divorce discuss the above issues with an experienced family law attorney even before making the decision to proceed. The benefit of an upfront legal consultation is well worth the price. It is a standard approach at our law firm for the attorneys to provide the key information regarding these issues with every new client.
I often heard people say, “if both parties agree on all issues related to property and children, they will just go to the court, fill out the necessary paperwork, and get a divorce; how hard can that be?” To answer the question, we need to have a firm understanding of the formal divorce procedure in the state where an individual resides. In this series, we refer to the California law.
This situation mentioned in the question is known as an uncontested divorce, my focus of this article. In an uncontested divorce, a couple agree on all their marital issues and choose to obtain a divorce from the court without outside legal assistance. However, they will find themselves immediately confronted with the task of handling voluminous legal papers and unfamiliar procedural requirements on their own. Inevitably such a scenario is not in the couple’s best interest. Throughout the years, I have been involved in many cases where an attorney’s service is called upon after the couple’s do-it-yourself attempt failed. Extra time, energy, and money must be invested to undo the damage and right the course. I am hoping that our potential clients will read this article and become better informed.
1. Filing for a Divorce
If you are the party who initiates the divorce, your first step is to choose the right court to file your case. As prerequisites, divorce residency requirements must be met: 1) either you or your spouse must have lived in California for the last six months, and 2) you must have lived a minimum of three months in the county where you plan to file the divorce. [What if I cannot meet this standard? Talk with an experienced lawyer and see if she can help you.]
After you have chosen the right county, you need to fill out a divorce application called petition. You can get a physical copy of the form at the county superior court or download from the court website. Upon completion, you need to submit, or file, the petition to the court; you become the petitioner in the case while your spouse becomes the respondent. Courts in different counties may also require their own local forms to be completed. After you successfully file the documents and pay the filing fees, the court will sign and seal the relevant documents.
2. Service Process
Next you must provide, legally called serve, your spouse the entire set of the filed documents including a summons addressed to your spouse. Service can be done in many ways. Our law firm generally recommends hiring a licensed professional server for the job. Possible disputes over the service process likely complicate the divorce and lead to subsequent litigation.
The proper service process does not require your spouse, the respondent, to sign any document, but does require you, the petitioner, to file a document called Proof of Service (POS) with the court. Sometimes, a respondent chooses not to cooperate at all and evade the service by running away before being served. A professional process server will know how to deal with the situation and accomplish the task. When a professional server cannot be used under certain circumstances, our law firm through years of experience has formulated strategies to achieve the goal.
Please note that only after a successful service can the court formally acquire jurisdiction over your case and the divorce process enter the substantive stage. That is, the court now has the authority to make rulings on your case. As long as the service is successful, even if your spouse has no intention to divorce, we will be able to help you dissolve the marriage by requesting the court to grant judgment, divorce papers.
Now, let’s switch roles and suppose you are the respondent whose spouse initiates the divorce. After the documents are served on you, you have the choice to respond or not. If you decide to respond, the law requires you to file a response with the court within 30 days and serve it to your spouse. You can choose to not reply at your own risk. We will discuss the possible consequences in a later chapter. Simply keep in mind: do not be lazy in your divorce.
4. Financial Disclosure
Within 60 days of filing a petition or response, both you and your spouse must file a financial disclosure to the court and deliver these documents to the other party. The financial disclosure should include income, expenditure, asset and debt information, etc. Both parties need to disclose all the information known to them. Particular attention should be paid to the content and procedures of financial disclosure. In a divorce, regardless of how many documents you have filed, the judges will always look at these disclosure documents and many judgments are largely based on the numbers on these forms.
In my opinion, this is the most important step in the divorce in California because a large number of CA residents have Restricted Stock Units (RSUs) and Stock options. Take as an example, if one party, the wife, with her lawyer’s help, manages to persuade the judge that the husband has concealed assets by failing to disclose a certain amount of RSUs or stock options, the wife can be awarded part, or in the best case, 100%, of those assets. Meanwhile, the husband has to pay attorney fees on behalf of the wife. It is important to know that when the wife’s lawyer finds out the hidden assets and persuades the judge to rule in her favor, the attorney fees could well be in the vicinity of tens of thousands of dollars.
Furthermore, not disclosing one’s assets truthfully is considered committing fraud. As you probably know, most lawsuits must be filed within a designated period of time. The deadline for filing a lawsuit based on someone else’s wrongdoings is called the statute of limitations. In general, once the deadline passes, i.e., the statute of limitations on a case “runs out,” the wronged person loses the right to sue. As to fraud, the statute of limitations is relatively long which allows lawyers for the defrauded party more time and opportunities to develop successful strategies against the party who committed fraud.
So be diligent and make sure the information you provide is accurate and complete. In our numerous representations of clients on both sides, our law firm has always carefully reviewed the clients’ financial disclosure statements while scrutinizing the opponents’ documents to catch and attack their vulnerabilities.
Following the above steps, you and your spouse will draft an agreement together, the marital settlement agreement. For the purpose of a written agreement, based on the stages of the marriage, decisions need to be made about property division, child custody, child visitation, spouse alimony, attorney fee, etc. Then you and your spouse need to fill out the required final forms and file them along with the agreement with the court to procure the judgment.
6. Cooling-off Period
Clients regularly ask me: in the most ideal situation, how long does a formal divorce take starting from filing a petition?
Under Section 2339(a) of the California Family Code, spouses cannot finalize their divorce until six months after, “the date of service of a copy of [the] summons and petition or the date of appearance of the respondent, whichever occurs first.” This 6-month period is the legendary cooling-off period. Please keep in mind that the 6-month period does not start from the time you separated in reality, nor from the time you filed the petition. This is a common misconception. In an uncontested divorce, once the cooling period is over, the divorce becomes final.
The divorce process described above is a simple walkthrough when both parties can reach an agreement without a lawyer’s assistance.
The American legal system is not designed for people who have no expertise in law. Going through a divorce on your own is rarely a good idea due to the complexity of the process. Even when the parties have nothing to dispute, dozens of documents are involved. If you have children and/or own diverse marriage assets (especially RSU), your interest will be best protected with an experienced family law attorney at your side.
To make things worse, nowadays courts are very slow in issuing divorce judgments. Many couples have to wait for more than six months before their matters are reviewed. In case there is an error, the filed documents will be kicked back by the court. The divorcing parties have to fix the error and resubmit them. Inexperienced couples often cannot get a final judgment after hanging for two or three years. Our law firm is here to make sure that this will not happen to you.
It has always been my intention to share family law tips with readers like you, especially now in the thick of the Covid-19 pandemic, divorce cases have sharply increased. If you don’t possess the means or desire to procure an attorney, I hope my writings will assist you and other local Chinese in understanding and avoiding pitfalls in the divorce process in California. You are more than welcome to contact our San Jose law firm at (408) 289-9688. Our strong legal team will guide you in whichever way we can to make the transition easier.
PS: Today I chatted with a well-known pastor in the Bay Area. He affirmed to me that it is a misunderstanding that the Bible teaches Christians not to divorce and we, as divorce lawyers, are doing an important job in helping many of his Christian fellows go through the process. I appreciate his kind words.