Divorce in California can have far-reaching consequences regarding property division, child custody, child support, spousal support and many other rights and obligations. Understanding divorce law in California can help individuals navigate this complex web of laws.
GROUNDS FOR DIVORCE
Unlike many other states that have several at-fault grounds for divorce, California only has two grounds for divorce. The first one is irreconcilable differences. This is the no-fault grounds for divorce and is the most commonly filed reason for divorce. It simply means that the parties have certain differences between them that cannot be remedied. The other ground for divorce is incurable sanity. If the petitioner alleges this reason for divorce, he or she must provide medical proof of insanity and that the condition remains incurable. This is very rare.
Before either spouse can file for divorce, one of the spouses must be able to meet the residency requirement. One of the spouses must have lived in California for at last six months and in the county where the divorce petition is filed for at least three months.
BEGINNING THE DIVORCE PROCESS
The divorce process is initiated when one spouse files a Petition for Dissolution of Marriage and a Summons. The petition includes information about the couple’s property, debts, children, child support and other matters. The Summons officially notifies the other spouse that his or her spouse is filing for divorce and must file a Response. These court documents are filed with the Superior Court in the county where one of the spouses lives. The other spouse must be legally served with these documents pursuant to the California Rules of Civil Procedure. The other spouse has 30 days from the date of being served with the Petition for Dissolution of Marriage and the Summons to file a Response. The Response may object to certain requests made in the Petition, such as an award of sole custody or spousal support. Others papers are filed with the court throughout the divorce process, including financial statements. After the spouse files the divorce petition, there is a mandatory six-month waiting period before the divorce becomes final.
TEMPORARY RESTRAINING ORDERS
After the petition for divorce is filed, automatic temporary restraining orders go into effect. These are standard court orders that instruct the spouses not to do certain things. California’s temporary restraining orders include:
- A prohibition on taking any minor children out of the state without the other parent’s written permission
- A prohibition on changing the beneficiary of an insurance policy while the divorce is pending
- A prohibition on transferring property
- A mandate to notify a spouse of any out-of-the-ordinary purchase that may have to be explained to the family judge
These restraining orders are included on the Summons.
In California, there are two types of property: separate and community. Separate property includes such property as:
- Property owned before the marriage
- Property obtained through a separate gift or inheritance
- Rents, income and profits derived from separate property
- Property owned pursuant to a prenuptial or post-nuptial agreement
- Property acquired after the date of separation
Community property is that property which was acquired during the marriage through the labors of either spouse. Even if property acquired during the marriage is in one spouse’s name or if only one spouse worked during the marriage, this property can still be considered community property. Community property interests may arise in account funds, tangible property, real property, stock options, pension plans, retirement accounts, profit-sharing benefits and retirement benefits. Spouses may also be entitled to a portion of any increase in the value of separate property that is due to their contributions.
Debts are often community debts as well. Debts that arose before the marriage and student loans are considered separate debts. Community debt may arise even if the debt was taken in only one spouse’s name. The spouse’s may be able to reach their own agreement regarding property and debt. If they cannot, then the judge is empowered to make the decision. The court may divide community property 50/50.
The court may order or the parties may agree for one spouse to provide spousal support to the other. The relevant factors that the court may consider include:
- The duration of the marriage
- The needs of each spouse
- The age and health of each spouse.
- The employment, work history and earning capacity of each spouse
- The career sacrifices that a party made and his or her contribution to the household
- The presence of any domestic violence in the marriage
- The separate and community property and debts of each party
- The presence of any minor children and whether they require care
If the court determines spousal support is appropriate, it also determines the amount of spousal support that should be paid and for how long. Support typically remains in place until the time it expires pursuant to the divorce decree, when one of the spouses dies or when the recipient spouse remarries.
Generally, the spouses must complete disclosure declarations that provide information about each spouse’s income, expenses, assets and debts. This allows both spouses to know about the financial aspects of the divorce and what is at stake.
MATTERS RELATING TO CHILDREN
If the couple has minor children, there may be a number of issues to be decided about them. This includes child custody and child visitation. In California, physical custody refers to the parent with whom the child primarily resides. Legal custody is the ability for a parent to make important decisions regarding the child, such as where he or she lives, goes to school, the type of medical treatment that he or she receives and how he or she will be brought up religiously. The court may order sole or joint custody regarding either type of custody. For example, the parents may both be given equal legal custody to make decisions regarding the children but give sole custody to one parent and visitation to the other parent. The court can also order child support. The parents may reach their own agreement regarding these matters or may have a hearing in front of a judge to determine what is in the child’s best interests.
In California, either spouse may request a hearing in front of a judge for a temporary order. This may include an order regarding temporary child custody, visitation with the children, support while the divorce is pending or a request for payment of attorney fees.
DIVORCE PROCESS OPTIONS
Divorcing spouses have options regarding how they handle their divorce. These options include:
- Full attorney representation – An attorney can represent the spouse in divorce. This may include uncontested divorce, divorce that is settled through litigation or a contested divorce.
- Limited attorney representation – This option has an attorney review a settlement offer or assist with only limited aspects of the case.
- Pro se divorce – This type of arrangement means that the spouse will act as his or her own attorney.
- Mediation – This strategy allows the spouses to work out a settlement of their case with a third-party neutral in a non-adversarial setting.
- Collaborative divorce – This option typically involves each spouse having his or her own attorney but who work together to try to come up with the best strategy for all participants. Other experts like child custody specialists, therapists or financial advisors may assist. If the parties cannot settle their case, the attorneys are usually required to withdraw from further representation.
Each of these options has certain advantages and disadvantages. The best course of action depends on a number of factors, including the relationship between the parties, the cost, the impact the process will have on the children, the time involved and the desire of the parties to make their own choices. It is important to have a lawyer review any potential settlement.
California offers a streamlined process that allows the parties to get divorced in an easier fashion. This process is called summary dissolution. It allows the parties to get divorced without appearing in court and requires them to file less paperwork. This process is available when the parties have agreed in writing to a division of their assets and debts and when the following conditions are present:
- The couple has been married for five years or less.
- They have no children from the relationship.
- They do not own any real estate.
- The total value of their community property is less than $25,000, excluding automobiles.
- The value of each spouse’s share of separate property is less than $25,000.
- The amount of debt the couple owns is $4,000 or less, excluding an auto loan.
- Both spouses waive spousal support.