5. Uncontested Divorce – What if we both agree to the divorce?

The phrase “uncontested divorce” means one of two things in California. Either the parties qualify for a summary dissolution, or a petition was filed and there was no response filed within 30 days, and the other spouse is in default. Unlike some states, California does not have a joint petition for dissolution of marriage.

The first type of uncontested divorce is a summary dissolution (Cal. Fam. Code § 2400) which means that the parties agree on the terms of a divorce and the following facts are true:

  1. One spouse has lived in California for six months and the county where the matter is being filed for three months;

  2. The grounds for divorce are irreconcilable differences;

  3. There are no minor children and wife is not pregnant;

  4. The total length of the marriage is not more than five years;

  5. Neither party owns any real property and any lease between the parties is less than a year;

  6. Other than a car loan, there is no debt in excess of $6,000;

  7. The community property does not exceed $38,000 excluding vehicles;

  8. Each spouse has read the summary dissolution information booklet and signed a settlement agreement that covers all issues;

  9. The assets and debts have been divided; and

  10. Neither party is seeking spousal support.

If the facts of a case fit into the summary dissolution criteria, then the summary dissolution forms are submitted to the family law court with the required filing fee. A judge will review and sign a judgment after six months have elapsed from the date of filing the summary dissolution (Cal. Fam. Code 2403), and the parties don’t ever have to go to court. Either party may revoke the filing of a summary dissolution prior to the time the judge signs off on a summary dissolution (Cal. Fam. Code § 2402).

All other divorces are initiated by filing a petition, whether the basis is dissolution, annulment, or legal separation. Once the other spouse is personally served with the petition, the other spouse, called the respondent, has 30 days in which to file a written response or motion. If the respondent doesn’t file a written response or motion, he or she is in default. The petitioner may then file for a notice of entry of default and later a default judgment. The default judgment may only contain matters that were requested in the petition. This means that the petition must be crafted very carefully so that the petitioner receives a judgment with exactly what he or she wanted. Note, a default judgment may be set aside by the respondent for various reasons and within certain time limits (Cal. Code Civ. Proc. § 473 and Cal. Fam. Code § 2122).

On the other hand, there may also be a default judgment by agreement. This means that the parties have come to a written agreement on all issues. In this scenario, a default judgment by agreement will be submitted to the court after the parties have spelled out everything that they agree to in the divorce.

For example, Patricia and Reggie were married 12 years and have one minor child. Patricia is the bread winner earning $6,000 per month while Reggie has raised their child and worked odd jobs earning a few hundred dollars a month. Patricia hires and attorney who files for divorce, and Reggie agrees with almost everything in the divorce petition except that he wants some spousal support until he get back on his feet and Reggie wants more time with their minor child as he has been the primary caretaker of their child. Reggie cannot afford an attorney and calls up Patricia’s attorney for guidance. Patricia’s attorney cannot represent any of Reggie’s interests, but can prepare a settlement agreement (see In re Marriage of Deffner (4th Dist. 2006) 143 Cal. App. 4th 662 (settlement set aside after lawyer indicated he represented both parties)). Reggie successfully negotiates spousal support and a time sharing arrangement with the child. Patricia and Reggie meet in Patricia’s attorney’s office and sign a settlement agreement by way of a default so that Reggie does not have to pay attorney fees or the court’s filing fee (currently in San Diego is $435; see Gov. Code §§ 70670(b); 70602.5 & 70602.6).

If a response is filed, then the matter is contested, at least initially, by the respondent. There are many situations in which the matter is initially contested, but the parties are able to sit down and reach a settlement agreement. Such an agreement can be reached by the parties themselves, or with the assistance of their attorneys, or occasionally through a private mediator. San Diego County is a mandatory mediation county when it comes to custody issues (Cal. Fam. Code § 3160). A court appointed mediator will meet with parents to try and come to an agreement for the benefit of the parties and their children. San Diego County Superior Courts also have a variety of ways to help settle all or some of the issues in a case including scheduling a Family Resolution Conference (S.D. Cty. Local Rule 5.2.2) and Alternative Dispute Resolution (S.D. Cty. Local Rule 5.3.3).

Prior to a settlement agreement being filed in a contested matter, preliminary declarations of disclosure must be exchanged by the parties (Cal. Fam. Code §§ 2102 & 2104). This ensures that the parties have an accurate picture of one another’s income, expenses, assets, and debts prior to reaching an agreement.

In the same example above, Patricia and Reggie are still getting divorced, but Patricia, through her attorney, does not agree to pay any spousal support and doesn’t want Reggie to have any time with their minor child. Reggie manages to file a response within the 30 day time limit and the matter is now contested. The court appoints a mediator to work out child custody issues, and the parties reach a child custody agreement. Reggie also files a Request for Order for temporary spousal support. Patricia’s attorney explains to Patricia that the court will grant Reggie some spousal support given the large disparity of income and that temporary spousal support is calculated pursuant to an algebraic formula. She further explains to Patricia that permanent spousal support could potentially be for life in a long-term marriage, and a marriage over ten years is presumed to be long term (Cal. Fam. Code §§ 4320 & 4336). Patricia, rather than spend the time, money, and energy, offers Reggie spousal support for six years in an amount that allows Reggie to move out of the home and become self-supporting. Patricia’s lawyer, versed in all the steps to complete the mandatory disclosures and settlement agreement, fills out the necessary paperwork and files it with the court. Both parties achieved their goals without ever having set foot in court.

Some may call Patricia and Reggie’s divorce uncontested, but really it was contested for a brief time. Many divorces follow this pattern, and whether contested or not, it’s important to have an attorney that can either effectively negotiate or go to court and successfully argue at a hearing or trial.