Divorce in California
Divorce in California
A divorce in California is the legal dissolution of a marriage by a competent authority, usually a court, that terminates the union. Typically, the divorce process results in the termination or rearrangement of the legal responsibilities and duties of persons in a marital union or registered domestic partnership. A divorce is one of the three means of ending a legal union in California; the other two are annulment and legal separation. Upon the completion of the divorce process, both parties become single again and can legally remarry or enter another domestic partnership.
In California, either spouse or partner can choose to obtain a divorce without the consent of the other spouse or partner. Divorces are carried out by the courts in California, and their objective is to help the separating persons make an equitable restructuring of their lives, assets, and liabilities. To obtain a divorce in California, either spouse or partner in the union must have been resident in California for the past 6 months. Also, they must be residents in the county of filing for the last 3 months. If both persons have been California residents for the past 6 months but for at least 3 months have lived in different counties, the divorce can be filed in either county. California divorce records are typically maintained in the judicial district where the case was filed, and they may be available to eligible requestors.
Divorce Laws in California
In the California Code, a divorce is referred to as the dissolution of a marriage. Division 6 of the California Code covers Nullities, Dissolutions, and Legal Separations. California divorce laws designate the state as a no-fault divorce state. This implies that there is no guilty party in the opinion of the court, and there is no need to prove any misdeed on either spouse’s part to dissolve a marriage. Either or both spouses may cite irreconcilable differences as the cause of an irrevocable breakdown of the union. Any married person in California can choose to end their marriage union, even if the other spouse does not want to do so.
The California Code also allows the dissolution of a marriage if one of the spouses is permanently legally incapable of making decisions. However, there must be competent medical or psychiatric evidence provided at the time of filing that proves the spouse’s current and continuing incapacity.
Separation vs. Annulment vs. Divorce
A legal separation is a process that can be undertaken by persons in a marital union instead of a divorce. It legally establishes a separation of affairs of the couple even though the marriage is not technically ended. Persons who are legally separated can not remarry or enter into another domestic partnership without first obtaining a divorce. A married couple may file for legal separation instead of divorce for numerous reasons, but the most common ones are:
- The couple does not want a divorce but wants to live separately
- Religious beliefs
- Personal reasons
- The residency status of the couple does not meet the requirements to file for a divorce in California
- Financial consequences
A legal separation is a mandate, ordered by a court, that defines the rights, duties, and liabilities of a married couple that have decided to live apart. A legal separation does not terminate a marriage, and neither spouse can enter another marital union without obtaining a divorce.
An annulment is a legal process wherein a marriage or domestic partnership is declared legally invalid by a court. This process is referred to as a “nullity of marriage,” and it invalidates the legality of a marriage, making it so the marriage never legally occurred. Consequently, all parties in the marriage are released from any statutory obligations associated with the union. Possible reasons for annulling a marriage are:
- If the union was incestuous
- If one of the persons involved in the marriage was underage (under 18 years) at the time of initiating the union
- If either spouse is already in a valid marriage
- If force or fraud was used to coerce one party into the marriage
- If the marriage occurred when one party was physically or mentally incapacitated.
To obtain an annulment, the petitioner must provide evidence of any of the above to the court.
Divorce and Property in California
Property is anything that can be bought and sold or has value. This includes houses, cars, furniture, clothes, bank accounts, cash, pension plans, 401(k) plans, life insurance, businesses, patents, stocks, and shares. California law establishes itself as a “community property” state. Therefore, any property acquired over the course of a marriage is the joint property of both parties in the marriage. In California, the individuals in a marriage are regarded as one “legal community”. Consequently, any property that was acquired with money earned during the tenure of the marriage qualifies as community property. In California, community property is equally owned by both persons in a marriage or domestic partnership. If the property was acquired by either person in the marriage or partnership while living in another state, it is considered quasi-community property, and the law still applies.
Property that was owned or acquired by any of the persons in a marriage or domestic partnership prior to the marriage or partnership is considered separate property. Separate property belongs solely to the spouse or partner who owns it. Separate property also includes gifts and inheritances to either party during the marriage. Also, earnings received from properties determined to be separate are considered separate property in the state. This also applies to a property that was acquired with the funds that are considered separate property. Any property obtained by either spouse after the date of separation in a divorce or legal separation is also considered separate property.
In California, the courts render the decision on property division if the property was acquired during the marriage, i.e., community property. Even if both parties have reached an agreement on the division of property, a court must sign off and issue a formal order to validate it.
California Divorce Attorney
A California divorce attorney is a lawyer that practices family law in California and specializes in the dissolution of marriage cases. A divorce attorney’s job is to protect the rights of their client in divorce proceedings and handle all custody and financial matters that arise.
How to File for Divorce in California
After making the decision to dissolve a marriage, the party intending to file for a divorce in California starts by obtaining and completing the required forms. It is important that the forms are accurately completed. Petitioners can have their forms reviewed by experienced divorce lawyers or seek assistance from the county self-help center or family law facilitator. The party filing for a divorce is required to fill out the following forms:
- Summons - This is a document notifying the spouse of a court appearance and will include information about property division and custody rights
- Petition - This is a document that provides information about the marriage and makes specific requests of the court on behalf of the petitioner
- Child custody and visitation application - This document is required only if there are minor children involved. It contains information about visitation and holiday schedules
File forms with the Clerk of the Court. In California, divorce cases are heard in the Superior Court in the county where the couple has resided for up to 3 months. If there is a need for a temporary court order, then additional forms must be filed as well. Petitioners can file for temporary court orders to cover:
- Domestic violence protections through a Temporary Order for Protection
- Child support
- Spousal support
- Bill payments
Serve copies of documents to the spouse. California law requires that a person be informed at the initiation of divorce proceedings by their spouse. This involves the delivery of copies of the documents filed in the Court to the person by their spouse. In California, delivery of these documents can be done by mail service or by personal service. Persons residing outside of California can be served by certified mail; make sure to obtain return receipts. Persons filing for divorce can not serve their spouses themselves and must designate a third party who is older than 18 years. Proof of service must be obtained from the party that served the documents and this will be provided to the court as a record of the process.
Spousal response - The law allows 30 days for a spouse to file a response to a divorce petition in California. The respondent can choose to:
- File a response and have a written agreement with the petitioner
- File a response and choose to contest the petition
- Do nothing. In this case, the spouse is considered to have defaulted, and the case will proceed without them
Give the other party in the divorce your financial disclosure documents. The law requires the disclosure and exchange of property information between spouses within 60 days of the filing of a divorce petition. Again, the party filing for the divorce can not serve their spouse themselves and must designate a third party for service. Instructions for completing financial disclosure forms are available from the court service.
Finalization - Generally, how a divorce will be finalized will depend on the response of the spouse to the divorce petition. If the respondent chooses to not contest the divorce and agrees to all the terms presented by the petitioner, then the divorce can proceed. Document all the agreed terms, complete the forms and submit them to the court to receive the final judgment. In a situation where the divorce is not contested, but there is no agreement on the terms, complete the forms and request a judgment from the court. If the respondent chooses to contest the divorce, there is the option of using a court-appointed mediator to reach an agreement between both parties. If this is not possible, then the court will assign a trial date, and a judge will settle the terms of the dissolution of the marriage.
Alimony in California establishes a legal obligation to provide financial support to a spouse following the dissolution of their union. It is court-defined maintenance awarded to a spouse during a separation (temporary) or after a divorce (permanent). Once awarded, spousal support payments must be made until:
- The payments are ended by a court order or judgment
- One party dies
- The receiver remarries or registers a new domestic partnership
When deciding on the terms for spousal support, the Court reviews certain criteria, including:
- Marriage duration
- Individual needs of either spouse
- Age and health statuses
- Present income and earning capacity of the individuals
- Effects of being a homemaker on career prospects (if applicable)
- Contributions to spouse’s education, training, certifications, and career
- Domestic violence history (if applicable)
- Minor children and their requirements
- Couple’s financial history
- Tax consequences
- Efforts to make supported spouse self-supporting in a reasonable time
- Any other factors deemed just and equitable by the Court
To receive spousal support, the spouse that is eligible for support must make the request for spousal support to the court when filing their divorce papers. A temporary order for spousal support may be issued while awaiting the final divorce judgment. To receive such an order, the eligible party must request a court date where the request will be heard. A temporary order will stay in effect until the final judgment is approved.
Persons served with spousal support request papers must respond to the Court on the date listed in the summons. Failure to respond to a court summons may result in a default judgment being issued against that spouse. Either spouse can change the terms of a spousal support order if they are able to establish that a “change in circumstances” has occurred since the order was made. If the spouses are able to reach an agreement on the changes, it may be written out and presented to a judge for approval. If this is not possible, the requesting spouse must file a court motion asking to modify the terms of the original spousal support agreement. Spousal support will be paid as monthly installments commencing on the date ordered by the Court.
California Child Custody
Where there are minor children in the marriage, California child custody and visitation arrangements must be made as part of the divorce proceedings. Basically, there are two types of child custody:
- Physical custody - determines where the child resides
- Legal custody - determines the right to make major decisions for the child
Either parent can have physical and legal custody of a minor child, or both parents can have shared custody. Courts in California tend to award shared custody to parents to encourage the involvement of both of them in decisions about the child and ensure significant contact. A judge will make the final pronouncements on custody and visitation rights but will usually approve any arrangements agreed upon by both parents. If an agreement cannot be reached by both parents, a judge will make the decisions in the best interest of the child. When making the decision on child custody, the judge will consider the following:
- Health, safety, and welfare of the child
- Any child abuse or domestic violence history
- Drug or alcohol abuse issues
- Type and amount of parental contact
- Any other pertinent details
California Child Support
California child support refers to maintenance fees instituted by a court order that is paid by one or both parents for the support of a child. Child support payments cover all the expenses of the child, including living, clothing, feeding, health, education, and recreation. A spouse may file a request for a child support order when filing their divorce papers with the Court. Copies of this request must be served to the other parent, who, upon receiving the request, must appear in Court to have an input in the final outcome.
California Divorce Forms
There are several forms, provided by the California Court System, that are used for divorce or separation proceedings in the state. The divorce forms required by the petitioner or respondent are dependent on the circumstances and intentions of the persons involved.