Should I File First for A Divorce in California?

Should I File First for A Divorce in California?

The decision to file for divorce can be one of the most difficult a person makes. Whether the divorce is amicable and both parties agree to the dissolution of marriage or it’s less agreeable, knowing what to do after can be equally confusing. If you are considering divorce, you likely have questions about how to file for it and whether it matters who files first.

How Does Divorce Work in California?

A common law marriage or domestic partnership can be legally ended through a divorce. A divorce completely splits you and your spouse apart, together with your assets and finances, in contrast to a legal separation or annulment. California is a “no-fault divorce” state because you can apply for divorce there without providing any supporting evidence, such as proof of adultery. Per California law, one party may also request a divorce without the consent of the other, which is advantageous in the instance of domestic violence.

You or your spouse must have resided in your present county for three months to file for divorce, and you or your spouse must have been a resident of California for at least six months. California law stipulates that you can file for a divorce in the county where you previously resided if you move to a different county and decide to get a divorce before the three months. Having said that, you can apply for divorce in the county where you’re now dwelling if you and your spouse have been living apart and in separate counties for longer than three months.

Three Common Types of Divorce Proceedings

Determining the type of divorce hearing that is ideal for you is essential because every divorce hearing is unique. Depending on your marriage, avoiding court proceedings may be a possibility, but if you and your spouse are at odds and unable to agree, going to court may be your last chance to obtain a just divorce. After filing for a divorce, the three common ways you can expect your proceedings to go are as follows:

  • Mediation: A mediator serves as an impartial third party between you and your spouse during a particular type of divorce case. The mediator collaborates with each party to develop a written agreement that specifies your duties as a result of your separation, much like a contract negotiation. This style of divorce discussion is typically presented to couples that get along well and are skilled at diplomatically negotiating issues like property distribution, child custody, etc.
  • Collaborative Divorce: The alternative to litigation and mediation is collaborative divorce. The details of the divorce are discussed and agreed upon with full disclosure from both sides after each party chooses a lawyer experienced in collaborative divorce proceedings to work with. Although the collaborative divorce process might be challenging, it can be made simpler with the appropriate legal team.
  • Litigation: The most typical divorce procedure involves litigation, which calls for both parties to get counsel and submit their case in court. Litigation helps to settle any divorce-related matters that are still hotly contested between you and your spouse and is frequently selected by couples who have reached the point where they are unable to discuss the terms of their divorce.

Being the one to file for divorce has little to no impact on your subsequent proceedings; however, understanding how these systems work is crucial for a smooth, less stressful separation process. As a petitioner, you know why you filed for divorce and what this separation means to you, and as a respondent, it is your responsibility to acknowledge the petitioner’s filing and act accordingly.

Frequently Asked Questions on the Divorce Process

Q: Is There an Advantage to Filing for Divorce First in California?

A: Being the Petitioner or the Respondent has no advantage throughout the pending divorce process. Given that California is a no-fault divorce state and the court does not favor the party who submits the petition first, most legal experts think there is little advantage to filing first. If you do file for divorce first, and your spouse does not respond in thirty days, you do have the advantage of asking the court to grant the divorce without your spouse’s input.

Q: Is it Better to File for Divorce First?

A: Although there is no advantage to filing first, if you do file and do not hear back from your spouse within thirty days of serving them divorce papers, you can ask the court to default your case and decide without hearing from your spouse. If you are on the receiving end of a divorce filing, it is in your best interest to respond to these filings to ensure that your wishes are represented during your separation.

Q: What Is the First Step in Getting a Divorce in California?

A: According to California law, at least one member of the marriage must have lived in the state for at least six months before applying for divorce to be eligible for a California divorce. Additionally, one spouse must have spent a minimum of three months residing in the county where the court filing was made. If you want to end a domestic partnership, you must follow the same residency requirements.

Q: Do You Have to File for Separation Before Divorce in California?

A: There is no waiting period necessary in California before filing for divorce. This implies that you can decide to divorce and then file for divorce on the same day. Depending on if and when your spouse responds to your divorce filing, your divorce may be settled rather quickly. There is no requirement that you and your spouse live apart before or after you file for divorce.

How To Start the Divorce Process

Whether you are the respondent or the petitioner, beginning the divorce process requires much thought and a confident handle on your situation. With the help of a top-tier legal team like Khalaf Law Group, you can be sure that your divorce case will move smoothly. For more information on our services, including a list of our other practice areas, visit our website and contact us today.

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