Frequently Asked Questions About Family Law in California

Do I Need a Spouse’s Consent to Obtain a Divorce?

No. The spouse must be served and given a chance to respond, but the other party does not have to agree to the divorce. The other party does not need to sign anything.


What if I Can’t Find the Other Party?

 If the Litigant has made every effort to located the other party and the other party is truly missing, she may qualify for service by Posting or by Publication if the Litigant has sufficient financial resources.


Will I Have to go in Front of a Judge?

Maybe. Litigants whose family law matter proceeds by default may not need to appear in front of a judge.


What If the Other Party Contests The Case?

 The Litigant will have to go to trial where a judge will make decisions. If the case involves minor children, the Litigant will also have to attend mediation.


Can I Obtain an Order That The Other Parent Cannot Visit the Kids?

 Maybe, but likely there will be some type of visitation order unless there are extreme circumstances that warrant a no visitation order, such as the other parent is abusive to the children.


The Other Party Does Not Pay Any Child Support. Does S/He Still Have the Right to See My Kids?

 Yes.


If I Move Out of Our House, Will I Lose Custody of the Children? Will I be Charged With Abandonment?

 No, California is a “no-fault” state, so you cannot be charged with abandonment. However, if you leave the children with the spouse for a long period of time, s/he could end up getting custody of the children.


 

Does it Matter Who Files for Divorce First?

 

Usually, no. Whoever files first will be known as the Petitioner, and the responding party is known as the respondent. However, regardless of whoever files first, both parties will be required to pay the first appearance fee and filing fees. Both parties can seek out a temporary order. The only real advantage to filing for divorce first is the party who files first presents their case first if it proceeds to trial.


 


Can I File for Divorce in California?

 

In California, you are required to file for divorce in the county that you have resided in for the last three months. To file for divorce, you must have been a resident of the state of California for six months. If you do not meet these residency requirements, you may file for a legal separation. Then, once you have reached the requirements, you and your spouse can amend the divorce petition.

 



Can I File for Divorce in San Diego?

 

In order for San Diego to have jurisdiction over the divorce, at least one of the partied must have lived in California for at least six months AND lived in the county for three months. (FC §2320). 

 



How Long Does a Divorce Take?

 

There is a six-month waiting period in California before partying to a dissolution of marriage can be restored to a single person’s status. The six months begins to run on the date the respondent was served, OR the respondent appears in action. (FC §2339(a)). The California six-month “waiting period” cannot be waived by a judge or either party.




What’s the Difference Between a Dissolution and Legal Separation?

 

A legal separation is almost identical to dissolution, except the parties do not get restored to single persons’ status. Both dissolution and legal separation allow married parties to obtain orders for custody, support, property division, etc.. One main difference is that the legal separation has no residency requirements, whereas a dissolution required residing in the county for at least three months.




What’s the Difference between Legal and Physical Custody?

 

Physical custody refers to where the children physically live. Legal custody refers to the authority to make decisions for a child, such as: Where a child should attend school. Sole legal custody is when one parent has the right and the responsibility to make decisions relating to the child’s health, education, and welfare. (FC § 3066) However, courts have a preference for joint legal custody, allowing both parents to be able to collectively make these decisions with the exception of victims of domestic violence have the right to sole legal custody until the perpetrator has proven to the court that they’ve been rehabilitated. 

(FC § 3044)


Sole physical custody occurs when the child resides with and is under the supervision of one parent, subject to the court’s power to order visitation. In comparison, joint physical custody is where each of the parents has significant periods of physical custody. It’s shared by the parents in such a way to assure a child of frequent and continuing contact with both parties. Similar to legal custody, the court has a preference for joint physical custody.