Understanding the Divorce, Legal Separation and Process to Dissolve Domestic Partnerships. Whether you’re ending a marriage, legally separating from your spouse or ending a registered domestic partnership, the process is substantially similar and all start with the filing of a Petition – Marriage / Domestic Partnership form, also known as the FL-100. Other forms must also be filed at the same time, including a Summons (FL-110).
Once the petition is filed with the court, several restrictions and deadlines are immediately imposed on the couple ending their relationship. The person who files the initial request is known as the Petitioner and the other person is called the Respondent.
The first restriction is found on the second page of the Summons and is known as the Automatic Temporary Restraining Orders (“ATRO”), which are found in Family Code § 2040. These restrictions are imposed on both spouses or domestic partners and remain in effect until the petition is “dismissed, a judgment is entered, or the court makes further orders.”
A few of the ATRO restrictions prohibit parents from removing children from the state, or applying for a passport for the children, “cashing, borrowing against, cancelling, transferring, disposing of, or changing the beneficiaries of insurance, including life, health, automobile and disability” insurance. The ATROs also prohibit the “transferring, encumbering, …, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life”. You must also “notify each other of any proposed extraordinary expenditures at least five business days prior to incurring these extraordinary expenditures and account to the court for all extraordinary expenditures”. These restrictions are designed to maintain the status quo while the relationship is being dissolved and there are significant penalties for violation of these restraining orders, including the potential loss of 100% of any asset disposed of in violation of the ATRO.
Deadlines that are immediately imposed including a requirement that the Petition, Summons and other documents be personally served (in most cases) on the other party within 60 calendar days and that the other party, once served, then file a response within 30 calendar days.
The next set of deadlines pertain to the disclosure of assets and debts, so that each side understands the full nature of the finances of the partnership. In fact, the Court will treat both sides as if they were running a business partnership, and the fiduciary duties owed to the other partner come straight out of California Corporations Code §§ 16403 and 16404. Fiduciary duties owed to the other partner are among the most serious obligations imposed by the Court and include things like a duty of loyalty to the other partner regarding dealings with community assets and debts, providing the other party with access to financial records, notice of changes to the assets and debts, and providing a complete accounting of all partnership assets. Violations of these obligations are known as breaches of fiduciary duty and can be punished severely by the Court, including the loss of 100% of the asset and the imposition of significant attorney fees, which often run into thousands of dollars.
There are two sets of financial disclosures that must be made by each side, which are discussed in Family Code §§ 704 and 705. These disclosures are the Preliminary and Final Declarations of disclosure and require that you provide a significant amount of backup documentation relating to real property, vehicles, checking and savings accounts, investments, and debts to name a few categories. You much also serve an Income and Expense Declaration (FL-150) on the other party, setting forth your income, assets and living expenses. The Preliminary Declaration of Disclosure must be exchanged within 60 calendar days of the filing of the Petition and the Response. For more information on these disclosures, please click this link.
Until the Preliminary Declaration of Disclosure is exchanged and notice is filed with the Court, the Court does not have the legal power to dissolve the relationship or change the marital status. Depending on the circumstances of your case, you may decide to request additional information from your Ex, from their employer, or banks and other financial institutions before deciding on how to divvy up the assets and debts of the relationship, which can be done by mutual agreement or following a trial before the court.
There are also several other decisions that may need to be made in the interim, like obtaining child custody / visitation orders or financial support orders. For information on those kinds of orders, please click this link.