Filing initial divorce petition and other initial documents with the court clerk:
- Petition (FL-100)
The Petition is the first form filed with the court. The Petition must be filed in order to start a divorce case in California. In the Petition you will notify the court if you are asking for spousal support, attorney’s fees and other orders. The petition lays out a road map for the court about your marriage and the type of orders you are requesting.
The Petition will describe statistical facts about the marriage such as:
- Date of marriage
- Date of separation
- Information about minor children
- Basic information about separate property and debts of the filing party
- Separate property and debts are defined on the property division page
If unknown or unsure, the filing party should state the following, “The nature and extent of separate property assets and debts are unknown to Petitioner at this time; Petitioner asks leave of court to amend this when same is ascertained.”
Basic information about community property of the filing party.
Community Property and debts are defined on the property division page.
If unknown or unsure, the filing party should state the following, “The nature and extent of community property assets and debts are unknown to Petitioner at this time; Petitioner asks leave of court to amend this when same is ascertained.”
A summons is issued by the clerk which orders the opposing party to file a response within 30 days of service of the initial paperwork.
When the summons is issued by the court, automatic restraining orders are placed on each party. These restraining orders restrain the parties, unless there is a court order or written consent from the other party, from:
- Removing children under 18 from the state
- Applying for or replacing passports for children under 18;
- Cashing, borrowing against, cancelling, transferring, disposing of, or changing the beneficiaries of any insurance, or other coverage, including life, health, automobile, and disability, held for the benefit of the parties and their minor children;
- Transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether 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; and
- Creating a non-probate transfer or modifying a non-probate transfer in a manner that affects the disposition of property subject to the transfer, without the written consent of the other party or an order of the court. Before revocation of a non-probate transfer can take effect or a right of survivorship to property can be eliminated, notice of the change must be filed and served on the party.
The summons also requires each party to notify each other within five business days before incurring any “extraordinary expenditures” made after these restraining orders are effective.
Despite the above, you can use community property, quasi-community property or separate property to pay court costs and attorney fees in your divorce action.
When you are served with the summons, contact an attorney. An attorney can negotiate stipulations with the other party to relieve you from the burden of the automatic restraining order. For example, a business owner may need a stipulation to buy or sell property for business purposes. These transactions may be a violation of the automatic restraining order. But, each party can agree to the transactions and transfers if a stipulation is signed by both parties.
Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (FL105)
If you have minor children with the other party, you must file a Declaration Under Uniform Child Custody Enforcement ACT (UCCJEA). This document will provide the court with information about each child. You must give each child’s: name, date of birth, place of birth, sex, age and list each address of the child for the last five years.
The UCCJEA will also require you to provide any known related cases. For example, if a court in another state or county has previously made a ruling concerning the parties in a family, guardianship, juvenile dependency, adoption, or domestic violence case, you must give the court information regarding that case. The purpose of requiring this information is to notify the court of a prior court case and prior court orders regarding the children. The above list of cases will give the court relevant information about if each parent will be a suitable candidate for custody and or visitation of the child.