California Divorce Law

Divorce and Legal Separation in California


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Divorce and Legal Separation in California

California Divorce Basics

Divorce in California is called a Dissolution of Marriage.

Residency Requirement:

In order to file for divorce in California, at least one of the parties must have resided in California for at least six months prior to filing, and in the county where he/she plans to file for the divorce, for the prior three months.

Filing:

A Petition for Dissolution of Marriage and Summons may be filed with the Superior Court in the county where one of the spouses has resided for the past three months. The Petitioner, spouse who is filing, must serve the Respondent, other spouse, with copies of the Petition and other paperwork.

After filing for divorce, there is a mandatory six month waiting period before the divorce may become final.

Summary Dissolution:

Summary Dissolution is a streamlined process for obtaining a divorce. To qualify for this process, the following requirements must be met.

  • The residency requirement is met;
  • The couple has been married no more than five years on the date the Joint Petition for Summary Dissolution of Marriage is filed;
  • There are no children, either adopted or born before or during the marriage and the wife is not currently pregnant;
  • Neither the couple, nor either spouse owns or has an interest in any real estate;
  • The couple does not owe more than $6,000 for debts acquired since the date of the marriage, excluding auto loans;
  • There is no community property worth more than $38,000, excluding vehicles;
  • Neither spouse has separate property worth more than $38,000, excluding debts on the property or auto loans;
  • Both spouses agree that neither spouse will ever get spousal support; and
  • Both spouses have signed an agreement that divides their property and debts.
With a summary dissolution, there is no trial or hearing and after obtaining a divorce through this process, neither party can ask for a new trial, or appeal the judgment to a higher court.

Spouse’s Name:

I an action for dissolution of marriage and/or annulment, if a party requests it, the court will restore the birth name or former name of the requesting party, whether or not the request was made in the original Petition.

California Domestic Partnership

Domestic partnerships are established by California law when two partners of the same sex choose to share one another’s lives in an intimate and committed relationship of mutual caring. The partners may enter into a registered domestic partnership by filing a Declaration of Domestic Partnership with the California Secretary of State.

Registered domestic partners have the same rights, protections, and benefits and are subject to the same responsibilities, obligations, and duties under law as are granted to and imposed upon married spouses.

Residency Requirements for Dissolution:

Residency requirements to file for dissolution of domestic partnership are somewhat different from those for married couples. If the domestic partners registered in California, they have already agreed to the jurisdiction of the California courts to end the domestic partnership, even if they move away or had never lived in California. However, if they registered a domestic partnership in a different state, a dissolution of domestic partnership can only be filed if one of the parties lives in California. Additionally, one of the parties must have lived in California for at least six months prior to filing and in the county where the dissolution will be filed for at least three months prior.

Filing:

A Petition for Dissolution for Domestic Partnership and a Summons may be filed with the Superior Court in a county where one of the parties resides. The Petitioner, domestic partner who is filing, must serve the Respondent, other partner, with copies of the Petition and other paperwork.

Summary Dissolution for Domestic Partnerships:

Domestic partnerships are also eligible for summary dissolution, if the partners meet the following requirements:

  • The residency requirement is met;
  • The couple has been in a registered domestic partnership no more than five years on the date the Notice of Termination of Domestic Partnership is filed;
  • There are no children, either adopted or born before or during the partnership and neither partner is currently pregnant;
  • Neither the couple, nor either partner owns or has an interest in any real estate;
  • The couple does not owe more than $6,000 for debts acquired since the date of the domestic partnership, excluding auto loans;
  • There is no community property worth more than $38,000, excluding vehicles;
  • Neither partner has separate property worth more than $38,000, excluding debts on the property or auto loans;
  • Both partners agree that neither one will ever get domestic partner support; and
  • Both partners have signed an agreement that divides their property and debts.
If these qualifications are met, the couple may file a Notice of Termination of Domestic Partnership with the Secretary of State rather than appear in court. Either partner may revoke the termination within six months from the date the Notice is filed for any reason, by filing a Notice of Revocation of Termination of Domestic Partnership with the Secretary of State. A copy must be sent to the other partner by first-class mail.

If this does not occur, the domestic partnership will automatically end six months after the date the Notice of Termination of Domestic Partnership is filed with the California Secretary of State. With a Summary Dissolution, there is no trial or hearing and couples who use this method to terminate their domestic partnership do not the right to ask for a new trial or the right to appeal the case to a higher court.

California Legal Grounds for Divorce

Under California law, there are only two grounds for divorce:
  • Irreconcilable differences, which have caused the irremediable breakdown of the marriage; and
  • Incurable insanity, only with proof, which includes competent medical or psychiatric testimony that the spouse was incurably insane when the petition was filed, and remains so.

California Annulment

In an annulment, the court determines that a marriage or domestic partnership is not legally valid. The following conditions or situations render a marriage or domestic partnership invalid, void or voidable.

  • Incestuous unions;
  • Bigamy;
  • Unions created by force, fraud, physical or mental incapacity; or
  • One spouse was legally too young to marry or enter a domestic partnership.
To file for an annulment, one party must reside in the county where the papers are filed at the time the case is started. There is no required length of residency. To obtain an annulment, you must request a hearing with a judge.

Support, custody, property division and other related orders are available in annulment cases.

 

California Property Division

California is a community property state. Unless there exists a written agreement or an oral stipulation in open court between the parties, the court shall divide the community property of the parties 50/50. Separate property will not be included in the property allocation.

Separate property typically includes all property owned by the spouse or domestic partner prior to marriage or domestic partnership; all property acquired during the marriage by gift or inheritance; and all rents, issues and profits derived from the separate property.

California Spousal and Partner Support

When a couple separates or divorces, the court may order spousal or partner support. The judge reviews certain criteria when determining this support, including the following:

  • The length of the marriage or domestic partnership;
  • The needs of each partner or spouse;
  • The age and health of each party;
  • How much income each one can earn and the earning capacity of each party;
  • Whether one party’s career was affected by unemployment, or by taking care of the children at home;
  • Whether one spouse or partner helped the other get an education, training, career or professional license;
  • Whether there was domestic violence in the marriage or domestic partnership;
  • Debts and property;
  • Whether there are minor children at home and if working outside the home would make it too hard to care for them;
  • The history of the way the couple handled money during the marriage or domestic partnership; and
  • The tax impact of spousal support (federal and state tax law does not recognize domestic partnerships.)

Spousal and domestic partner support typically ends when the court order or judgment decrees; when one of the parties dies; or then the receiving spouse or partner remarries or registers a new domestic partnership.

California Child Custody and Support

Custody:

Either party may be awarded custody. The court may award joint legal custody, joint physical custody, or sole custody, with no preference for any arrangement. The decision will be based on the best interests of the child. When deciding on custody, the court will consider the following criteria.

    1. The health, safety and welfare of the child(ren);

    2. Any history of abuse by one parent or any person seeking custody who has a blood relationship, or close affinity with the child(ren); the other parent; or a parent, current spouse, or cohabitant of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship;

    3. The nature and amount of contact with both parents;

    4. The habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol by either parent (with independent corroboration of these allegations);
Other factors which influence custody decisions include:
  • Which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent;
  • If custody is not to be awarded to either parent, then to the person(s) in whose home the child(ren) has been living in a wholesome and stable environment; and
  • The person(s) deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child.
If a party is absent or moves from the family home, the court will not consider this for purposes of determining custody or visitation if the following is true.
  • The absence is for a short period of time and during this absence the party has shown an interest in maintaining custody or visitation, the party maintains or reasonably attempts to maintain regular contact with the child(ren), and the party’s behavior demonstrates no intent to abandon the child(ren); or
  • The party has left because of an act or act of actual or threatened domestic or family violence by the other party.
The court may also consider attempts by one party to interfere with other party’s regular contact with child (with the exception of instances of restraining or protective orders against one party or abandonment).

Support:

California uses the Income Shares Model for calculating child support. If the parents are unable to agree on child support, the judge will make a determination based on a statewide formula. The guideline calculation depends on the following criteria:
  • How much money the parents earn or can earn;
  • How much other income each parent receives;
  • How many children these parents have together;
  • How much time each parent spends with their child(ren);
  • The actual tax filing status of each parent;
  • Support of children from other relationships;
  • Health insurance expenses;
  • Mandatory union dues;
  • Mandatory retirement contributions;
  • The cost of sharing daycare and uninsured health-care costs; and
  • Other relevant factors.
Special needs expenses, such as traveling for visitation from one parent to the other and educational expenses may be included in child support payments.
  • Parents may agree on a different support amount if they meet the following requirements.
  • They fully know their child support rights;
  • They know the guideline child support amount;
  • They are not pressured or forced to agree to this child support amount;
  • They are not receiving, nor have they applied for public assistance;
  • They believe that the child support amount is in the best interest of the child(ren); and
  • A judge approves the agreed upon amount of child support payments.
Court-ordered child support typically ends when the child marries or registers a domestic partnership; dies; is emancipated; turns 18 and is not a full-time high school student; or turns 19.

The court may order that both parents continue to support a disabled adult child who is unable to be self-sufficient.

California Legal Separation

Legal separations are valid in California. The grounds are the same as those for divorce. To file for legal separation, one party must reside in the county where the papers are filed at the time the case is started. There is no required length of residency.

If both spouses or domestic partners want to legally separate and agree on issues of property, debt, custody, support and any other pertinent issues, the case can be handled rather simply; in most cases, by mail and with little to no contact with a judge.

If a couple later decided to seek a divorce, they can file an Amended Petition and ask the court for Dissolution.

Links to California State Resources


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