CALIFORNIA DIVORCE LAW
A California divorce, also known as “dissolution of marriage,” is the legal ending of a marriage. After the divorce is complete a person is considered single and may marry again or enter into a domestic partnership. Many issues may arise with divorce such as residency, mediation, legal separation, annulment, property distribution, and child custody. If a divorce is granted, you may be able to ask the judge for orders in the areas of partner support, spousal support, child support, custody and visitation, domestic violence restraining orders, property division, and others.
California provides individuals the option for obtain a summary dissolution to expedite the divorce process. After filing for divorce in California, there is a mandatory 6-month waiting period before you divorce may become final. A spouse in California may also choose to legally separate or, under the right circumstances, request an annulment. Many of the forms used in California divorce, separation, and annulment proceedings may be found here. You should contact a California divorce attorney when deciding on whether divorce is right for you.
Grounds For Divorce
- The grounds for divorce are simply the stated reasons why you want out of the marriage. California is a no-fault divorce state. The spouse that is filing for divorce does not have to claim that the other spouse is at fault to get a divorce. The idea in no-fault divorces is that if a spouse is unhappy in the marriage they should be able to get a divorce regardless of what the reasons are. The other spouse will not be able to stop a no-fault divorce, but will be able to contest other issues in relation to the divorce such as child custody and property distribution.
- As California is a no-fault divorce state, your grounds (reasons) for wanting a divorce are set out in a document called Petition for Dissolution of Marriage that you file with your local Superior Court. Appropriate grounds for divorce in California are: (1) irreconcilable differences which have caused the irremediable breakdown of the marriage; or (2) incurable insanity (only by proof). Irreconcilable differences are those grounds which are determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved.
Simplified or Special Divorce Procedures in California
- Summary Dissolution
- Summary Dissolution is a relatively more simple way to handle a divorce, because it does not require a hearing with a judge and only a few forms need to be filled out and submitted.
- Summary Dissolution is ONLY available to couples who:
- Have been married less than five years from the date they filed their Joint Petition for Summary Dissolution;
- Have no children together that were adopted or born before or during the marriage;
- Do not own or have any interest in real estate;
- Do not owe more than $4,000 in debt since the date of marriage, excluding car loans;
- Have less than $32,000 worth of property acquired during the marriage, excluding cars;
- Do not have more than $32,000 in separate property (property a spouse owns separately, such as property acquired before marriage, property earned or received after separation, and property received as a gift or inheritance at any time), excluding debt on the property or car loans;
- Agree that neither spouse will ever receive spousal support;
- Have signed an agreement dividing up property and debts;
- Fulfill the residency requirements (see Residency/Where to File, below).
- If you believe you qualify for a Summary Dissolution you may find a guide and forms here. You should contact a California divorce attorney when seeking a summary dissolution.
- A legal separation in California does not legally end the marriage. If you are legally separated in California you are not considered single and may not enter into another marriage. Whether or not you are legally separated could have an impact on the division of property, finances, and debts. California is a community property state, meaning that any property that is acquired after legal separation is separate property. A legal separation is more common for couples that decide they do not want to get a divorce, but want to live apart and make legal decision on money, property, and parenting issues. Couples may prefer separation for religious reasons.
- To file for legal separation the spouses do NOT need to meet California’s residency requirements. For further information on legal separation contact a local California attorney.
Divorce Residency Requirements
To get divorced in California, you MUST meet the California residency requirements. At least one party (spouse) must have lived in California for at least 6 months, and lived in the county where a spouse plans to file the divorce for the last 3 months. If you live in a different county than your spouse, you may file with the Superior Court of California in either your county or your spouse’s county. The county clerk and his or her assistants will help manage your paperwork with the court. If you do not meet these residency requirements, you may still file for legal separation and wait for enough time to pass to meet the residency requirements for divorce. You may determine your residency here.
An annulment, also known as “nullity of marriage,” is when a court says the marriage is NOT legally valid and therefore, never existed. A marriage can either be not valid or voidable. A marriage that is incestuous or bigamous is NEVER valid. Other marriages have the ability to be declared invalid or are voidable because : (1) of force, fraud, or physical or mental incapacity; (2) of age, one of the spouses or partners was too young to legally marry or enter into a domestic partnership; or (3) one of the spouses or partners was already married or in a registered domestic partnership.
If you decide to seek an annulment you must have a hearing in front of a Judge, as annulments are very rare in California. California requires one party to reside in the county where the papers are filed at the time the annulment case is started. If children are involved the court will need to take further steps to establish the parentage of that person(s). It is important to discuss all possible issues with an attorney knowledgeable in the area of annulments before proceeding.
Property Division in a Divorce
California follows a community property theory when dividing property in a divorce. The general concept is that all property acquired during a marriage and before any separation, other than by gift or inheritance, is presumed to be community property (belongs to both spouses). Property is considered separate property (belongs to one spouse only and a married person may, without the consent of the person's spouse, convey the person's separate property) in California and therefore, not community property when:
- All property owned by the person before marriage.
- All property acquired by the person after marriage by gift, bequest, devise, or descent.
- The rents, issues, and profits of the property described in 1 and 2 above.
- The earnings and accumulations of a spouse and the minor children living with, or in the custody of, the spouse, while living separate and apart from the other spouse, are the separate property of the spouse.
- Notwithstanding number 4 above, the earnings and accumulations of an unemancipated minor child related to a contract of a type described in Section 6750 shall remain the sole legal property of the minor child.
Money earned by both spouses during the marriage and before separation belongs to BOTH of them and may include salary, compensation for services, stock, vacation pay, or employment fringe benefits. The actual calculation of what is or what is not community property is complicated and depends on a variety of factors. Increased equity in separate property and separate property that is comingled in community property may become community property in certain circumstances. The courts in a community property state such as California will generally divide the community property equally between the parties and give each spouse his or her separate property. This does not mean that the court will divide every asset in half. The property is divided so that each spouse gets half of the total net value (fair market value of assets minus community debts). However, this is not always the case and can vary depending on the situation of each spouse (one may be disabled and unable to work). It is important to consult the advice of an experienced attorney in this area of law.
Mediation is an option that many divorcing couples choose when working out the specific terms of their settlement agreement. It may help keep the parties from becoming adversaries. In California, divorcing parents must attend some type of mediation orientation when there are minor children involved and custody, visitation or both are in any way contested.
Domestic Partnership Dissolution
- Domestic partners that have registered in California have agreed to jurisdiction in the California courts to end their domestic partnerships. This does not change if one or both partners move out of or have never lived in California.
- If the couple filed for domestic partnership (or equivalent) in another state, one spouse must meet the same residency requirements as above (6 months in the state and 3 months in the county).
- To file for an annulment (“nullity of domestic partnership” ) or legal separation a spouse can file as soon as they have moved into California.
- Summary Dissolution
- Domestic partners may receive a summary dissolution if they meet the same requirements listed above.
- A domestic partnership dissolution is still relatively new in relation to divorce. It is important to discuss all possibilities with an attorney who is knowledgeable in domestic partnership dissolution. See “Ending A Domestic Partnership” for further information.
Link to Divorce Statutes
- The California Family Code
- Grounds For Dissolution of a Marriage (divorce) or Legal Separation of a Marriage
- California Family Code - Sections: 2310-2313
- California Family Code, Sections 2210-2212
- Summary Dissolution
- California Family Code, Sections 2400-2406
- California Family Code, Sections 2320 – 2322
- Community Property
- California Family Code, Sections 760-761
- Separate Property
- California Family Code, Sections 770-772
- Domestic Partnership Termination
- California Family Code, Sections 299-299.3