If divorcing with minor children, do the parents have to appear before a judge or can it all be done through attorneys?

Question Details:

Parents want to divoce and have a 16 and 15 year old. Can a divorce occur without parents having to appear before a judge if the parents agree on custody? Also the family is out of the country for much of the time as parents work for US Embassy in Asia and they return to CA (where they were married) for a short time each year. Can divorce proceedings begin by contacting an attorney in CA while the family is still out of country?

Asked 1/23/2010 under Divorce, Marriage, Alimony | 201 View(s) | More Legal Topics

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Divorce, Marriage, Alimony Law Answers

Timothy McCormick / Libris Solutions Answered 2 years ago | Contributor with 0 answers This attorney is licensed in California

Well, for a New York lawyer, MTG got an amazing amount of it right, but not all.  First off, if the parties are in complete agreement on all terms, they can use a single attorney in California. As a mediator, I often am the only attorney involved in helping people complete their divorces.  If they can agree on everything without my medaition services, then it's just all the simpler and less expensive.  There is the residency requirement, for both the parties and the minor children.  As U.S. citizens deployed overseas, I presume you maintain a legal residence in the U.S., and that is in California.  If not, you cannot get a divorce in California, but if so, you do not need to be present in the state to commence the process.  Lastly, if the parties can agree on everything, either immediately or through negotiation, not only can the process be completed without the parties appearing in court, the attorney(s) usually will not even have to appear.  It can all be done on paper.  If the parties agree on everything up-front, the process is even simpler, because it can be done as a default, where one party files the petition, the other party simply accepts it and never files a response.  Then six months later (statutory minimum time from filing to getting a divorce judgment) the petitioner requests entry of a default judgment of divorce.  No hearing needed.  If you would like assistance with this, please feel free to contact my office.

In order to bring an action for divorce in California you have to start with the residency requirement. A judgment of dissolution of marriage may not be entered unless one of the parties to the marriage has been a resident of this state for six months and of the county in which the proceeding is filed for three months next preceding the filing of the petition. So your legal residence her will matter.

Dissolution of the marriage may be based on either of the following grounds; (1) Irreconcilable differences, which have caused the irremediable breakdown of the marriage. (2) Incurable insanity.

In California the term "irreconcilable differences" describes No-Fault divorce. It means that "irreconcilable differences have caused an irremediable breakdown of the marriage." Divorce is also granted on grounds of incurable insanity.

In California, as in other states, divorces may be either contested or uncontested, but uncontested, No-Fault divorces move through the courts more quickly and less expensively. Agreeing on issues such as property distribution, child custody and support will move the matter along as long as they comply with the law. 

You can contact the attorney at any time and should as soon as possible to begin the process.  But you should each be advised by separate counsel who can prepare the paperwork and submit it to the court.  You may have to appear at some time but can possibly "schedule" the appearance for the time that you are back.

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