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California Divorce Laws

What is Divorce Laws in California

Divorce in California, also referred to as dissolution of marriage, is the state-approved termination of a registered marital union or domestic partnership. In California, the process of obtaining a divorce is regulated by Division 6 of the California Family Code. Divorce laws in California define the procedures for dissolving a marriage in the state, as established by the California Legislature. The regulations established by the California Code also define property sharing, support, and custody implications of marriage dissolutions. California divorce laws establish:

  • That California is a "no-fault" state.
  • Residential requirements to obtain a divorce in the state.
  • The difference between community property and separate property.

California's status as a "no-fault" state implies that there is no guilty party in the eyes of the law in a divorce case. As such, there is no need to establish any wrongdoing on anyone's part to dissolve the marriage. The California Code also prescribes a residency requirement for persons filing for divorce in the state. To be able to file for a divorce in California, either or both spouses must have been resident in the state for at least 6 months. Also, they must have been residents in the county where the petition will be filed for at least 3 months. For same-sex spouses, it is possible to obtain a divorce judgment if neither spouse is resident in California, provided:

  • The marriage was registered in California. The divorce petition must be filed in a Superior Court in the county where the marriage was registered.
  • The state of current residence of the couple will not dissolve their marriage (usually this is because the state does not recognize same-sex marriage).

California does not recognize common-law marriage and persons involved in such unions may not receive statutory protections afforded married couples in the state.

California Divorce Requirements or Grounds for Divorce in California

California divorce laws stipulate the grounds for the dissolution of marriages in the state. Under the California Family Code, the following reasons are established as grounds under which a spouse could file for a divorce in the state:

  1. Irreconcilable differences, which have caused an irrevocable breakdown of the marriage. Irreconcilable differences are grounds established by the court to constitute enough reason to discontinue the marriage and dissolve the union.
  2. Permanent legal incapacity with regards to the decision-making capabilities of the spouse. There must be evidence of this condition provided by a competent medical or psychiatric professional in the state. The evidence must assert that at the time of the filing of the divorce petition, the spouse was legally incapable of making decisions.

California Marital Property Laws or Property Division Law in California

California marital property laws establish the division of property owned by the couple during the process of dissolving a marriage. Property, in this case, refers to anything that can be purchased, retailed, or has value, such as land, houses, cars, furniture, stocks and shares, bank accounts and cash, insurance, businesses, and patents.

The California Code distinguishes between property acquired by either spouse before their marriage and property acquired during the marriage. Property acquired by either spouse during the marriage is referred to as community property; this is because the state recognizes a married couple as one legal community. Hence, any property acquired by this community during the period of marriage is jointly owned by the members of the community. Any property acquired with money that was earned during a marriage is also considered community property. If the property was acquired by either spouse while living in another state, it would be considered quasi-community property, but the same rules would apply.

Any property that was owned or acquired by either spouse prior to the marital union is considered separate property. Separate property also includes any inheritances or gifts that one spouse may have received during the duration of the marriage. All earnings and profits received from separate property are also considered separate property in California. Any property acquired by either spouse after the date of separation is also considered as separate property.

California Alimony Laws

California alimony laws and regulations are described in Division 9 of the California Family Code. Alimony is an arrangement (as part of a divorce agreement) wherein the divorcing party with the higher wage couple agrees to pay regular amounts to their ex-spouse. The Articles of Spousal Support make provisions that enable a divorced party to agree (in writing) to make installment payments for the upkeep of their ex-spouse. It is an Order of Court which shall be imposed by the law and provides the terms of agreement and conditions under which it may be terminated or revoked.

Spousal support payments in California exist in two forms:

  • Temporary (Pende Lite) Spousal Support - This refers to spousal support that is applicable during litigation i.e. while the divorce judgment is pending and before the final agreement is reached.
  • Permanent Spousal Support - This is the post-divorce judgment that serves as the long-term agreement between two ex-spouses on alimony and serves as the final resolution. California does recognize that the circumstances of either or both parties may change and as such orders may also change.

The determination of the amount of alimony to be paid is done by the court based on a number of factors enumerated in Section 4320 of Division 9 of the Family Code. Typically, if the marriage lasted less than 10 years, the rule of thumb suggests support payments will last for half the number of years of the marriage. If the marriage lasted more than 10 years, then there is no prescribed limit of the number of years spousal support payments can last. The payer of spousal support will need to prove the receiver's circumstances have changed and no longer require financial support to end payments. It is possible for spouses to opt for lump-sum payments instead of periodic payments for spousal support if they are able to reach such an agreement.

It is required under California law that the receiver of spousal payments make a good faith effort to become self-supporting in time. However, it will also recognize any circumstances, responsibilities, or limitations that may impact the receiver's ability to become self-supporting.

Alimony vs Spousal Support in California

In California, technically, there is no difference between alimony and spousal support, however, all California statutes and regulations refer to alimony as spousal support. Spousal support is the generally accepted term to describe payments from one spouse to another as part of a divorce judgment in the state. Alimony is a term that is rarely used in the Californian court system.

Child Support Laws in California

California child support laws are contained under Article 2 of Division 9 of the Family Code. Child support regulations establish that:

  • The provisions of an agreement for child support between parents are separate and severable from any other agreements.
  • Child support payments can be combined with spousal support payments.
  • The court can approve and enforce any stipulated agreement for child support between parents.

Child support payments ordered by the court end when the child turns 18 years if they graduate from high school. If the child is still in high school at age 18, child support will end when the child graduates or turns 19, whichever comes first. Child support payments may also end when the child marries (or registers a domestic partnership), becomes emancipated, joins the military, or dies.

Child Custody Laws in California

Child custody laws establish the rights and responsibilities of both parents for the care of minor children in California. The provisions for the custody of children in California are enumerated in Division 8 of the California Family Code. The legislation sets the guidelines regarding the custody of a minor child in the state, especially after a separation or marriage dissolution. It entitles both parents with equal rights to custody of a minor child; however, full custody rights shall revert to the other parent if one parent is dead, has refused custody of, or abandoned the child.

Public policy in California prioritizes the "health, safety, and welfare" of the child when deciding about the custody of a minor. To ascertain the child's best interests, the court determining custody will consider certain criteria including:

  • Age
  • Health status
  • Emotional ties
  • Any history of violence or abuse
  • A parent's ability to provide
  • Child's ties to home, school, or community

Child custody in California is of two types:

  1. Legal custody - this refers to the authority to make life decisions for the child.
  2. Physical custody - this refers to where the child physically resides.

Custody can be held jointly: wherein both parents have legal and/or physical custody of the child; or solely: wherein one parent retains legal/physical custody. Parents with legal custody of a child are authorized to make decisions for the child on education (school), childcare, religion, health and medical, travel, and residence.

Visitation rights are typically awarded to parents who do not have physical custody of their children. Depending on the parent's situation and taking into consideration the child's best interests, the court can approve any of the following visitation orders:

  • Scheduled visitation - This order is based on a structured and detailed plan that was agreed to by both parents.
  • Reasonable visitation - This order is open-ended and allows for more flexibility enabling parents to work it out between themselves.
  • Supervised visitation - with this order, the parent's visitation with the child must be supervised by the other custodial parent, another adult, or an authorized entity.

Alternatively, the court can decide to issue a no visitation order if it considers not having contact with a parent is in the child's best interest.

Annulment in California

An annulment is referred to in the California Family Code as a nullity of marriage. This implies that the marriage which had occurred was considered illegal and has been invalidated. As a result, it is as if the marriage had never occurred and all statutory obligations are released. To obtain an annulment in California, the law states that the spouse seeking the annulment must establish one of the following:

  • Incest
  • Bigamy
  • One of the spouses was underage (under 18)
  • One of the spouses was a victim of fraud or force
  • One of the spouses has an incurable physical or mental incapacity

The reason for seeking to nullify a marriage will also determine the statute of limitations for filing for the annulment order. If the annulment request is filed for incestuous reasons, the spouse can file the request anytime in their lifetime. This also applies if the annulment is requested on the grounds of mental incapacity. If the annulment was requested on the grounds of bigamy, it can be filed by either spouse while the spouse from the first marriage is still alive. If the request for the annulment is filed on the grounds that one spouse was underage, the request must be filed within 4 years of the spouse turning 18 years. If the ground for the annulment is duress or physical incapacity, then the annulment must be requested within 4 years of the commencement of the marriage. If the annulment is requested because one spouse perpetrated a fraud, then it must be filed within 4 years of discovering the fraud.

Legal Separation in California

A legal separation in California is a process that finalizes the rights, duties, and liabilities of a couple that no longer want to live together. The entire process of legal separation is similar to the divorce process; the difference is that the couple are still married after a legal separation. Legal separations in California are regulated by Division 6 of the California Family Code. A couple in California that files for legal separation will undergo the exact same processes as with a divorce to decide on property division, spousal support, child custody, and support. If the couple is unable to reach an agreement by themselves, then the judge will reach a decision for them, which is legally binding to both parties.

To petition for a legal separation, either spouse must cite irreconcilable differences or incurable mental or physical incapacity as the reason for the separation. For the sake of community property division, the date of separation will be set as the date the spouse explicitly expressed their intent to leave the marriage. This could be by way of a verbal utterance or a physical action, such as moving out of their mutual residence. There are numerous reasons a couple would opt for a legal separation in California, instead of divorce; these include:

  • Religious reasons
  • Personal beliefs
  • Social stigmatization
  • Care for minor children from the union
  • Financial reasons
  • Inability to meet California residency requirements for a divorce