SECTIONS 2330-2348 - California Statutes

FAMILY.CODE

SECTION 2330-2348

2330. (a) A proceeding for dissolution of marriage or for legal
separation of the parties is commenced by filing a petition entitled
"In re the marriage of ____ and ____" which shall state whether it is
a petition for dissolution of the marriage or for legal separation
of the parties.
(b) In a proceeding for dissolution of marriage or for legal
separation of the parties, the petition shall set forth among other
matters, as nearly as can be ascertained, the following facts:
(1) The date of marriage.
(2) The date of separation.
(3) The number of years from marriage to separation.
(4) The number of children of the marriage, if any, and if none a
statement of that fact.
(5) The age and birth date of each minor child of the marriage.

2330.1. In any proceeding for dissolution of marriage, for legal
separation of the parties, or for the support of children, the
petition or complaint may list children born before the marriage to
the same parties and, pursuant to the terms of the Uniform Parentage
Act, a determination of paternity may be made in the action. In
addition, a supplemental complaint may be filed, in any of those
proceedings, pursuant to Section 464 of the Code of Civil Procedure,
seeking a judgment or order of paternity or support for a child of
the mother and father of the child whose paternity and support are
already in issue before the court. A supplemental complaint for
paternity or support of children may be filed without leave of court
either before or after final judgment in the underlying action.
Service of the supplemental summons and complaint shall be made in
the manner provided for the initial service of a summons by this
code.

2330.3. (a) All dissolution actions, to the greatest extent
possible, shall be assigned to the same superior court department for
all purposes, in order that all decisions in a case through final
judgment shall be made by the same judicial officer. However, if the
assignment will result in a significant delay of any family law
matter, the dissolution action need not be assigned to the same
superior court department for all purposes, unless the parties
stipulate otherwise.
(b) The Judicial Council shall adopt a standard of judicial
administration prescribing a minimum length of assignment of a
judicial officer to a family law assignment.
(c) This section shall be operative on July 1, 1997.

2330.5. Notwithstanding any other provision of law, if no demand
for money, property, costs, or attorney's fees is contained in the
petition and the judgment of dissolution of marriage is entered by
default, the filing of income and expense declarations and property
declarations in connection therewith shall not be required.

2331. A copy of the petition, together with a copy of a summons, in
form and content approved by the Judicial Council shall be served
upon the other party to the marriage in the same manner as service of
papers in civil actions generally.

2332. (a) If the petition for dissolution of the marriage is based
on the ground of incurable insanity and the insane spouse has a
guardian or conservator, other than the spouse filing the petition,
the petition and summons shall be served upon the insane spouse and
the guardian or conservator. The guardian or conservator shall defend
and protect the interests of the insane spouse.
(b) If the insane spouse has no guardian or conservator, or if the
spouse filing the petition is the guardian or conservator of the
insane spouse, the court shall appoint a guardian ad litem, who may
be the district attorney or the county counsel, if any, to defend and
protect the interests of the insane spouse. If a district attorney
or county counsel is appointed guardian ad litem pursuant to this
subdivision, the successor in the office of district attorney or
county counsel, as the case may be, succeeds as guardian ad litem,
without further action by the court or parties.
(c) "Guardian or conservator" as used in this section means:
(1) With respect to the issue of the dissolution of the marriage
relationship, the guardian or conservator of the person.
(2) With respect to support and property division issues, the
guardian or conservator of the estate.

2333. Subject to Section 2334, if from the evidence at the hearing
the court finds that there are irreconcilable differences which have
caused the irremediable breakdown of the marriage, the court shall
order the dissolution of the marriage or a legal separation of the
parties.

2334. (a) If it appears that there is a reasonable possibility of
reconciliation, the court shall continue the proceeding for the
dissolution of the marriage or for a legal separation of the parties
for a period not to exceed 30 days.
(b) During the period of the continuance, the court may make
orders for the support and maintenance of the parties, the custody of
the minor children of the marriage, the support of children for whom
support may be ordered, attorney's fees, and for the preservation of
the property of the parties.
(c) At any time after the termination of the period of the
continuance, either party may move for the dissolution of the
marriage or a legal separation of the parties, and the court may
enter a judgment of dissolution of the marriage or legal separation
of the parties.

2335. Except as otherwise provided by statute, in a pleading or
proceeding for dissolution of marriage or legal separation of the
parties, including depositions and discovery proceedings, evidence of
specific acts of misconduct is improper and inadmissible.

2335.5. In a proceeding for dissolution of marriage or legal
separation of the parties, where the judgment is to be entered by
default, the petitioner shall provide the court clerk with a stamped
envelope bearing sufficient postage addressed to the spouse who has
defaulted, with the address of the court clerk as the return address,
and the court clerk shall mail a copy of the request to enter
default to that spouse in the envelope provided. A judgment of
dissolution or legal separation, including relief requested in the
petition, shall not be denied solely on the basis that the request to
enter default was returned unopened to the court. The court clerk
shall maintain any such document returned by the post office as part
of the court file in the case.

2336. (a) No judgment of dissolution or of legal separation of the
parties may be granted upon the default of one of the parties or upon
a statement or finding of fact made by a referee; but the court
shall, in addition to the statement or finding of the referee,
require proof of the grounds alleged, and the proof, if not taken
before the court, shall be by affidavit. In all cases where there are
minor children of the parties, each affidavit or offer of proof
shall include an estimate by the declarant or affiant of the monthly
gross income of each party. If the declarant or affiant has no
knowledge of the estimated monthly income of a party, the declarant
or affiant shall state why he or she has no knowledge. In all cases
where there is a community estate, each affidavit or offer of proof
shall include an estimate of the value of the assets and the debts
the declarant or affiant proposes to be distributed to each party,
unless the declarant or affiant has filed, or concurrently files, a
complete and accurate property declaration with the court.
(b) If the proof is by affidavit, the personal appearance of the
affiant is required only when it appears to the court that any of the
following circumstances exist:
(1) Reconciliation of the parties is reasonably possible.
(2) A proposed child custody order is not in the best interest of
the child.
(3) A proposed child support order is less than a noncustodial
parent is capable of paying.
(4) A personal appearance of a party or interested person would be
in the best interests of justice.
(c) An affidavit submitted pursuant to this section shall contain
a stipulation by the affiant that the affiant understands that proof
will be by affidavit and that the affiant will not appear before the
court unless so ordered by the court.

2337. (a) In a proceeding for dissolution of marriage, the court,
upon noticed motion, may sever and grant an early and separate trial
on the issue of the dissolution of the status of the marriage apart
from other issues.
(b) A preliminary declaration of disclosure with a completed
schedule of assets and debts shall be served on the nonmoving party
with the noticed motion unless it has been served previously, or
unless the parties stipulate in writing to defer service of the
preliminary declaration of disclosure until a later time.
(c) The court may impose upon a party any of the following
conditions on granting a severance of the issue of the dissolution of
the status of the marriage, and in case of that party's death, an
order of any of the following conditions continues to be binding upon
that party's estate:
(1) The party shall indemnify and hold the other party harmless
from any taxes, reassessments, interest, and penalties payable by the
other party in connection with the division of the community estate
that would not have been payable if the parties were still married at
the time the division was made.
(2) Until judgment has been entered on all remaining issues and
has become final, the party shall maintain all existing health and
medical insurance coverage for the other party and any minor children
as named dependents, so long as the party is eligible to do so. If
at any time during this period the party is not eligible to maintain
that coverage, the party shall, at the party's sole expense, provide
and maintain health and medical insurance coverage that is comparable
to the existing health and medical insurance coverage to the extent
it is available. To the extent that coverage is not available, the
party shall be responsible to pay, and shall demonstrate to the court'
s satisfaction the ability to pay, for the health and medical care
for the other party and the minor children, to the extent that care
would have been covered by the existing insurance coverage but for
the dissolution of marital status, and shall otherwise indemnify and
hold the other party harmless from any adverse consequences resulting
from the loss or reduction of the existing coverage. For purposes of
this subdivision, "health and medical insurance coverage" includes
any coverage for which the parties are eligible under any group or
individual health or other medical plan, fund, policy, or program.
(3) Until judgment has been entered on all remaining issues and
has become final, the party shall indemnify and hold the other party
harmless from any adverse consequences to the other party if the
bifurcation results in a termination of the other party's right to a
probate homestead in the residence in which the other party resides
at the time the severance is granted.
(4) Until judgment has been entered on all remaining issues and
has become final, the party shall indemnify and hold the other party
harmless from any adverse consequences to the other party if the
bifurcation results in the loss of the rights of the other party to a
probate family allowance as the surviving spouse of the party.
(5) Until judgment has been entered on all remaining issues and
has become final, the party shall indemnify and hold the other party
harmless from any adverse consequences to the other party if the
bifurcation results in the loss of the other party's rights with
respect to any retirement, survivor, or deferred compensation
benefits under any plan, fund, or arrangement, or to any elections or
options associated therewith, to the extent that the other party
would have been entitled to those benefits or elections as the spouse
or surviving spouse of the party.
(6) The party shall indemnify and hold the other party harmless
from any adverse consequences if the bifurcation results in the loss
of rights to social security benefits or elections to the extent the
other party would have been entitled to those benefits or elections
as the surviving spouse of the party.
(7) (A) The court may make an order pursuant to paragraph (3) of
subdivision (b) of Section 5600 of the Probate Code, if appropriate,
that a party maintain a beneficiary designation for a nonprobate
transfer, as described in Section 5000 of the Probate Code, for a
spouse or domestic partner for up to one-half of or, upon a showing
of good cause, for all of a nonprobate transfer asset until judgment
has been entered with respect to the community ownership of that
asset, and until the other party's interest therein has been
distributed to him or her.
(B) Except upon a showing of good cause, this paragraph does not
apply to any of the following:
(i) A nonprobate transfer described in Section 5000 of the Probate
Code that was not created by either party or that was acquired by
either party by gift, descent, or devise.
(ii) An irrevocable trust.
(iii) A trust of which neither party is the grantor.
(iv) Powers of appointment under a trust instrument that was not
created by either party or of which neither party is a grantor.
(v) The execution and filing of a disclaimer pursuant to Part 8
(commencing with Section 260) of Division 2 of the Probate Code.
(vi) The appointment of a party as a trustee.
(8) In order to preserve the ability of the party to defer the
distribution of the Individual Retirement Account or annuity (IRA)
established under Section 408 or 408A of the Internal Revenue Code of
1986, as amended, (IRC) upon the death of the other party, the court
may require that one-half, or all upon a showing of good cause, of
the community interest in any IRA, by or for the benefit of the
party, be assigned and transferred to the other party pursuant to
Section 408(d)(6) of the Internal Revenue Code. This paragraph does
not limit the power granted pursuant to subdivision (g).
(9) Upon a showing that circumstances exist that would place a
substantial burden of enforcement upon either party's community
property rights or would eliminate the ability of the surviving party
to enforce his or her community property rights if the other party
died before the division and distribution or compliance with any
court-ordered payment of any community property interest therein,
including, but not limited to, a situation in which preemption under
federal law applies to an asset of a party, or purchase by a bona
fide purchaser has occurred, the court may order a specific security
interest designed to reduce or eliminate the likelihood that a
postmortem enforcement proceeding would be ineffective or unduly
burdensome to the surviving party. For this purpose, those orders may
include, but are not limited to, any of the following:
(A) An order that the party provide an undertaking.
(B) An order to provide a security interest by Qualified Domestic
Relations Order from that party's share of a retirement plan or
plans.
(C) An order for the creation of a trust as defined in paragraph
(2) of subdivision (a) of Section 82 of the Probate Code.
(D) An order for other arrangements as may be reasonably necessary
and feasible to provide appropriate security in the event of the
party's death before judgment has been entered with respect to the
community ownership of that asset, and until the other party's
interest therein has been distributed to him or her.
(E) If a retirement plan is not subject to an enforceable court
order for the payment of spousal survivor benefits to the other
party, an interim order requiring the party to pay or cause to be
paid, and to post adequate security for the payment of, any survivor
benefit that would have been payable to the other party on the death
of the party but for the judgment granting a dissolution of the
status of the marriage, pending entry of judgment on all remaining
issues.
(10) Any other condition the court determines is just and
equitable.
(d) Prior to, or simultaneously with, entry of judgment granting
dissolution of the status of the marriage, all of the following shall
occur:
(1) The party's retirement or pension plan shall be joined as a
party to the proceeding for dissolution, unless joinder is precluded
or made unnecessary by Title 1 of the federal Employee Retirement
Income Security Act of 1974 (29 U.S.C. Sec. 1001 et seq.), as amended
(ERISA), or any other applicable law.
(2) To preserve the claims of each spouse in all retirement plan
benefits upon entry of judgment granting a dissolution of the status
of the marriage, the court shall enter one of the following in
connection with the judgment for each retirement plan in which either
party is a participant:
(A) An order pursuant to Section 2610 disposing of each party's
interest in retirement plan benefits, including survivor and death
benefits.
(B) An interim order preserving the nonemployee party's right to
retirement plan benefits, including survivor and death benefits,
pending entry of judgment on all remaining issues.
(C) An attachment to the judgment granting a dissolution of the
status of the marriage, as follows:

EACH PARTY (insert names and addresses) IS PROVISIONALLY AWARDED
WITHOUT PREJUDICE AND SUBJECT TO ADJUSTMENT BY A SUBSEQUENT DOMESTIC
RELATIONS ORDER, A SEPARATE INTEREST EQUAL TO ONE-HALF OF ALL
BENEFITS ACCRUED OR TO BE ACCRUED UNDER THE PLAN (name each plan
individually) AS A RESULT OF EMPLOYMENT OF THE OTHER PARTY DURING THE
MARRIAGE OR DOMESTIC PARTNERSHIP AND PRIOR TO THE DATE OF
SEPARATION. IN ADDITION, PENDING FURTHER NOTICE, THE PLAN SHALL, AS
ALLOWED BY LAW, OR IN THE CASE OF A GOVERNMENTAL PLAN, AS ALLOWED BY
THE TERMS OF THE PLAN, CONTINUE TO TREAT THE PARTIES AS MARRIED OR
DOMESTIC PARTNERS FOR PURPOSES OF ANY SURVIVOR RIGHTS OR BENEFITS
AVAILABLE UNDER THE PLAN TO THE EXTENT NECESSARY TO PROVIDE FOR
PAYMENT OF AN AMOUNT EQUAL TO THAT SEPARATE INTEREST OR FOR ALL OF
THE SURVIVOR BENEFIT IF AT THE TIME OF THE DEATH OF THE PARTICIPANT,
THERE IS NO OTHER ELIGIBLE RECIPIENT OF THE SURVIVOR BENEFIT.

(e) The moving party shall promptly serve a copy of any order,
interim order, or attachment entered pursuant to paragraph (2) of
subdivision (d), and a copy of the judgment granting a dissolution of
the status of the marriage, on the retirement or pension plan
administrator.
(f) A judgment granting a dissolution of the status of the
marriage shall expressly reserve jurisdiction for later determination
of all other pending issues.
(g) If the party dies after the entry of judgment granting a
dissolution of marriage, any obligation imposed by this section shall
be enforceable against any asset, including the proceeds thereof,
against which these obligations would have been enforceable prior to
the person's death.

2338. (a) In a proceeding for dissolution of the marriage or legal
separation of the parties, the court shall file its decision and any
statement of decision as in other cases.
(b) If the court determines that no dissolution should be granted,
a judgment to that effect only shall be entered.
(c) If the court determines that a dissolution should be granted,
a judgment of dissolution of marriage shall be entered. After the
entry of the judgment and before it becomes final, neither party has
the right to dismiss the proceeding without the consent of the other.

2338.5. Where a judgment of dissolution or nullity of marriage or
legal separation of the parties is to be granted upon the default of
one of the parties:
(a) The signature of the spouse who has defaulted on any marital
settlement agreement or on any stipulated judgment shall be
notarized.
(b) The court clerk shall give notice of entry of judgment of
dissolution of marriage, nullity of marriage, or legal separation to
the attorney for each party or to the party, if unrepresented.
(c) For the purpose of mailing the notice of entry of judgment,
the party submitting the judgment shall provide the court clerk with
a stamped envelope bearing sufficient postage addressed to the
attorney for the other party or to the party, if unrepresented, with
the address of the court clerk as the return address. The court clerk
shall maintain any such document returned by the post office as part
of the court file in the case.

2339. (a) Subject to subdivision (b) and to Sections 2340 to 2344,
inclusive, no judgment of dissolution is final for the purpose of
terminating the marriage relationship of the parties until six months
have expired from the date of service of a copy of summons and
petition or the date of appearance of the respondent, whichever
occurs first.
(b) The court may extend the six-month period described in
subdivision (a) for good cause shown.

2340. A judgment of dissolution of marriage shall specify the date
on which the judgment becomes finally effective for the purpose of
terminating the marriage relationship of the parties.

2341. (a) Notwithstanding Section 2340, if an appeal is taken from
the judgment or a motion for a new trial is made, the dissolution of
marriage does not become final until the motion or appeal has been
finally disposed of, nor then, if the motion has been granted or
judgment reversed.
(b) Notwithstanding any other provision of law, the filing of an
appeal or of a motion for a new trial does not stay the effect of a
judgment insofar as it relates to the dissolution of the marriage
status and restoring the parties to the status of unmarried persons,
unless the appealing or moving party specifies in the notice of
appeal or motion for new trial an objection to the termination of the
marriage status. No party may make such an objection to the
termination of the marriage status unless such an objection was also
made at the time of trial.

2342. Where a joint petition under Chapter 5 (commencing with
Section 2400) is thereafter revoked and either party commences a
proceeding pursuant to Section 2330 within 90 days from the date of
the filing of the revocation, the date the judgment becomes a final
judgment under Section 2339 shall be calculated by deducting the
period of time which has elapsed from the date of filing the joint
petition to the date of filing the revocation.

2343. The court may, upon notice and for good cause shown, or on
stipulation of the parties, retain jurisdiction over the date of
termination of the marital status, or may order that the marital
status be terminated at a future specified date. On the date of
termination of the marital status, the parties are restored to the
status of unmarried persons.

2344. (a) The death of either party after entry of the judgment
does not prevent the judgment from becoming a final judgment under
Sections 2339 to 2343, inclusive.
(b) Subdivision (a) does not validate a marriage by either party
before the judgment becomes final, nor does it constitute a defense
in a criminal prosecution against either party.

2345. The court may not render a judgment of the legal separation
of the parties without the consent of both parties unless one party
has not made a general appearance and the petition is one for legal
separation.

2346. (a) If the court determines that a judgment of dissolution of
the marriage should be granted, but by mistake, negligence, or
inadvertence, the judgment has not been signed, filed, and entered,
the court may cause the judgment to be signed, dated, filed, and
entered in the proceeding as of the date when the judgment could have
been signed, dated, filed, and entered originally, if it appears to
the satisfaction of the court that no appeal is to be taken in the
proceeding or motion made for a new trial, to annul or set aside the
judgment, or for relief under Chapter 8 (commencing with Section 469)
of Title 6 of Part 2 of the Code of Civil Procedure.
(b) The court may act under subdivision (a) on its own motion or
upon the motion of either party to the proceeding. In contested
cases, the motion of a party shall be with notice to the other party.
(c) The court may cause the judgment to be entered nunc pro tunc
as provided in this section, even though the judgment may have been
previously entered, where through mistake, negligence, or
inadvertence the judgment was not entered as soon as it could have
been entered under the law if applied for.
(d) The court shall not cause a judgment to be entered nunc pro
tunc as provided in this section as of a date before trial in the
matter, before the date of an uncontested judgment hearing in the
matter, or before the date of submission to the court of an
application for judgment on affidavit pursuant to Section 2336. Upon
the entry of the judgment, the parties have the same rights with
regard to the dissolution of marriage becoming final on the date that
it would have become final had the judgment been entered upon the
date when it could have been originally entered.

2347. A judgment of legal separation of the parties does not bar a
subsequent judgment of dissolution of the marriage granted pursuant
to a petition for dissolution filed by either party.

2348. (a) In addition to the requirements of Section 103200 of the
Health and Safety Code, the clerk of the superior court of each
county shall report annually to the Judicial Council the number of
judgments entered in the county during the preceding calendar year or
other 12-month period as required by the Judicial Council for each
of the following:
(1) Dissolution of marriage.
(2) Legal separation of the parties.
(3) Nullity of marriage.
(b) After the Judicial Branch Statistical Information System
(JBSIS) is operational statewide, the clerk of the superior court of
each county shall also report annually to the Judicial Council the
number of each of those judgments specified in paragraphs (1), (2),
and (3) of subdivision (a), entered in the county during the
preceding calendar year or other 12-month period as required by the
Judicial Council, that include orders relating to child custody,
visitation, or support.
(c) The Judicial Council shall include in its annual report to the
Legislature on court statistics the number of each of the types of
judgments entered in the state reported pursuant to subdivisions (a)
and (b).
(d) The Judicial Council shall establish the applicable 12-month
reporting period, the due date, and forms to be used, for submission
of data pursuant to subdivisions (a) and (b). Until the Judicial
Branch Statistical Information System (JBSIS) is operational
statewide, the clerk of the superior court may report the data
described in subdivision (a) using existing data collection systems,
according to current Judicial Council statistical reporting
regulations.