Filing for Divorce: The Process

Divorce and annulment are not the same. There is a difference between the two. While divorce is a legal termination of the marriage or domestic partnership, annulment is like the marriage or domestic partnership never happened. In case of a divorce, a spouse is entitled to child support and alimony, there is no provisions for alimony in case of an annulment.

Court

Annulment and divorce petitions are generally heard by family courts. In some states these courts are known as divorce courts.

Residency Requirements

Most states have residency requirements for filing a divorce or annulment petition. InCaliforniathe residency requirement for filing a divorce petition is 6 months. This means that the spouse applying for divorce have been residing in California for at least 6 months prior to the filing of the divorce petition out of which at least 3 months must have been in the county where the divorce petition is being filed. For annulment, there is no minimum residency requirement. As long as the filing spouse is living inCalifornia, he or she can file for annulment of the marriage in California. In case of a domestic partnership, there is no residency requirement. The filing spouse need not be living in California to be eligible to file the petition.

Annulment

Once a marriage or domestic partnership is annulled, it is like the spouses were never married. A marriage or domestic partnership can be annulled on many grounds. These grounds are more or the less the same in all state but may vary slightly according to state law. In California, the grounds for annulment include:

  • The spouses are in an incestuous relationship or are close blood relatives
  • One or both spouses are already married or in a domestic partnership with someone else. Even when the prior spouse was absent for 5 years and generally considered to be dead turns up after the marriage or domestic partnership, the new spouse can file for annulment.
  • Under age – The spouse seeking annulment was under 18 years of age at the time of the marriage
  • Either party was of unsound mind or was unable to understand the consequence of the marriage or domestic partnership
  • Fraud or Force – The consent of either party was obtained by fraud or force.
  • Non-consummation of the marriage – Either spouse is physically incapable of consummating the marriage or domestic partnership.

Divorce

Like annulment, divorce is also regulated by state law. State law specifies the various grounds on which a divorce can be granted. These include cruelty, impotency, adultery, etc. The spouse filing for divorce on these grounds must demonstrate the grounds in order to get a divorce decree. Even if the other spouse does not oppose the divorce petition, the divorce decree will not be granted after 6 months from the date of service of the petition on the other spouse.

No Fault Divorce

Many states including California allow no fault divorce. A no fault divorce is one where the spouse filing for divorce need not prove fault. All that he or she has to do is to state irreconcilable difference.

Forms

The petition for annulment or divorce of a marriage must be made on Form FL 100. In case of a domestic partnership, the petition must be made on Form FL 103. The original form must be submitted to the court along with the summons on Form FL 110. The court clerk will make the necessary entries in the court records and return the original summons to you. The summons will list your case number and also the time frame within which a response to the petition must be filed in the court. You must serve the original summons along with a copy of your petition to your spouse. Retain a copy of the summons and the petition for your records. You may have to pay a filing fee depending on the court. You can request a filing fee waiver if you are unable to pay the fee.

Service

You can serve your spouse in person or by mail. You must serve the original summons, copy of the petition and a blank Form 120 which is the form for filing a response to a divorce or annulment petition. The service must be done by someone other than you. The server must be 18 years or older. After the service is completed, the server must complete the proof of service on Form FL 115 (personal service) or Form 117 (service by mail) and submit it to the court.

Child Custody

If you and your spouse have children under the age of 18, then you must submit Form FL105/GC120 which is basically a declaration under the UCCJEA. You can also submit a child custody and visitation application on Form FL 311.

Procedure

After the respondent spouse files the response to the petition, the court will schedule a hearing and then decide the petition. In case of contested divorce, the proceedings can go on for a long time – in some case it can go on for years.

How to serve divorce papers

In California you must file a petition for divorce on Form FL 100. If you have minor children from the marriage you must file also file Form FL 105 which is a child custody declaration. If you are seeking property distribution, you must submit Form FL 160.  You can obtain these forms from the court office. Take two copies of these forms before you submit them to the court – one for your records and one to serve your spouse. Submit the original along with Form FL 110 to the court. When you submit the completed forms to the court, the court clerk will assign a case number and return the Form FL 110 to you after stamping it with the seal of the court. You should serve this original Form FL 110 along with a copy of the other forms on your spouse.

Your spouse can be served either personally, i.e. handing over the papers and the summons to your spouse or by mail. However you cannot be the person who serves your spouse. It must be someone other than you. The law requires the person to be over 18 years of age and should not be connected to your divorce petition in any manner. Along with the original form FL 110 and copies of the other forms, your spouse must also be served with a blank Form 123. Form 123 is the form for filing a response to a divorce petition in California.

If your spouse is being served by mail, besides the forms specified above, the person serving the papers must also mail two Form FL 117.

After your spouse is served, the person serving the papers must submit the proof of service it to the court. The proof of service must be submitted on Form FL 115. If the service was done through mail, along with the Form FL 115, you must also submit the Form FL 117.

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