- Legal Overview
- Divorce Process
- Residency Requirements
- Grounds for Divorce
- Division of Property
- Spousal Support
- Child Custody
- Child Support
- Premarital Agreement
California is a ‘no-fault’ divorce state, which means that when a spouse requests a divorce, they will not need to specify a reason or prove wrong-doing on part of the other. From time of initial filing, the soonest a divorce can be finalized is 6 months.
No-fault does not mean no disagreements, though. If you foresee that there may be disagreements regarding how the family assets are going to be handled, or how the kids will be cared for, get professional advice immediately.
Even if you both agree on how to separate your lives, it is important to have the agreement reviewed by a professional. An advisor who has been involved in many divorces can help you spot weaknesses in the agreement and will help ensure that the final agreement is strong and will last for many, many years.
The court has established a process and a procedure for divorce. The steps are as follows:
The party that initially files for a divorce is called the ‘petitioner’. The papers they file with the court are called a ‘dissolution of marriage’ or dissolution for short. These papers simply describe that a divorce is desired.
The other party is then officially presented with the dissolution documents, a process which is called ‘service of process’. The receiving party is referred to as the ‘respondent’. The date of service establishes the start of a 6 month period which California courts require as a minimum time to grant a divorce.
The respondent has 30 days from time of service to file an answer with the court. If the respondent does not file an answer, the court will record a ‘default’ and simply grant the divorce when the 6 month waiting period is complete. This is often called a ‘no contest’ divorce and is common practice when there were no assets to divide and no children. If you have been served divorce papers and if there are assets to divide or children involved you must take action within 30 days or you will lose important rights.
When the respondent files an answer, this starts the process of ‘discovery’ in which the parties each have a chance to describe to the court the assets they feel should be involved in the divorce, present their wishes regarding its distribution and also present their wishes regarding the custody of the children.
In cases where the parties can agree between themselves regarding the assets, their distribution and custody of children, the time and expense of a divorce is greatly reduced. If you are involved in a divorce and there are assets or children involved, it is important that you secure professional help. A professional will help you establish an agreement that is in your best interests and which takes into account the well established standards regarding asset distribution and custody.
If the applicant and respondent do not agree regarding the assets involved in the divorce, their division or on custody matters, then it is up to the parties (through their attorneys) to present evidence to support their wishes and it is up to the court to make a decision based on the evidence presented. A contested divorce in California that involves modest assets can take between one and three years to resolve.
To file for divorce you must have lived in California for at least six months and be a resident of the county in which you file for at least three months. If the other party lives in another state they have the right to demand that the case be heard in their state. And most likely they are going to request just that. Keep that in mind when consulting with an attorney, you will most likely need one that is located in the state in which the case is going to be heard.
Grounds for Divorce
To obtain a divorce in California a spouse may file on one of two grounds: Irreconcilable differences and incurable insanity. ‘Irreconcilable differences’ basically means that the applicant believes the marriage cannot be saved.
Because California is a no-fault state, the party filing for dissolution is not required to state why they wish a divorce and they are not required to provide any documentation regarding their reasoning. In fact, the court will not consider any data having to do with why the divorce is being requested or why it should be denied. The simple fact of a request for a divorce by either party is considered sufficient grounds to grant it.
If you and your spouse have no assets or children, then filing for a divorce can be done with little or no professional assistance and little cost. If there are material assets or if there is any disagreement about how the assets of the marriage are to be divided, or if there are kids involved, then professional legal assistance is very important.
Division of Property
California courts will, to the extent practicable, divide “community property” equally. Community property is what the couple earned (assets minus debts) from the time of the marriage to the date of their separation.
Community property can be divided unequally by mutual agreement. For example, one person may assume all the family debt in exchange for another benefit such as keeping a retirement account. In rare instances, the court may find compelling reasons to divide contested community property unequally. For example, if the court feels that one party is in need of more support that the other, it may award that party a higher share of the marital property.
Spousal support (alimony) can be established in a prenuptial agreement, it can be mutually agreed upon by the parties and presented to the court during discovery, or if no agreement can be reached the court will consider the facts as presented and award it based on the financial status of each of the parties and the nature of the lifestyle enjoyed by the couple during the marriage.
There are several forms of spousal support. The first is temporary maintenance, which is paid during the trial or proceedings and before the divorce is finalized. There is rehabilitative maintenance, most often done in short marriages ( less than 10 years) where one spouse pays for the other to complete an education or training program. And lastly, permanent maintenance, where the court sets a support amount to be paid on a long term basis.
In determining spousal support, fault can play a role. However, only the fault of the party seeking maintenance is considered, not the party who would pay. Special needs, such as a disability, are considered in determining maintenance.
The needs of one spouse and the ability of the other to pay are the primary factors in determining support amounts. Since most spouses work, spousal support (if necessary at all), is usually for finite period of time and modest amount. Spousal support in California can continue for an indefinite period, and it may be increased or decreased if there is a change in either party’s circumstances.
The State Resource pages are provided for informational purposes only. Do not take any actions based upon the information contained within the State Resource pages without first consulting an attorney licensed in your state. We at DadsDivorce.com strive to keep our information up-to-date; however state laws are not static and subject to change without notice.
Custody and visitation issues top the list of concerns for couples involved in a divorce. For many years to come the now ex-spouses must continue to plan their lives together and negotiate the dozens of choices that come up when raising children. Judges will go to great lengths to get the two parties to make their own decisions and solve their own conflicts.
It is typical practice to establish one parent as having primary custody. That parent is referred to as the ‘custodial parent’. The other parent is referred to as the non-custodial parent. Regardless of the schedule, in most cases the parents are required to make important child care and upbringing decisions together.
In California, any couple which cannot agree on custody or a visitation schedule is obligated to participate in and complete a counseling program prior to their disagreement being taken up by the court.
Judges that are forced to make custody and visitation decisions will base their rulings on evidence provided by the spouses and by professionals, such as psychologists, family service representatives or doctors. The judge will also take into account any history of child abuse, drug or alcohol addictions and any protective orders that may have been issued to help determine what is in the best interest of the child. However, the courts in California tend to grant joint custody, where the parents share in the day to day care and in making decisions regarding upbringing.
Based on the above factors, most spouses come to an agreement regarding custody and visitation schedule for their children rather than depend upon a judge to decree what is best. This is an area where professional legal assistance is a must.
Child support is paid by the non-custodial parent to the custodial parent to help support the children. This is normally continued until they reach the age of 18. As with Custody, the court will support mutual agreement that the spouses may be able to make.
If the parties cannot decide upon a support amount and payment frequency, child support is set by the court and will be calculated based on the California State Guidelines and on any data that the parties may present. The State Guidelines are designed to be fair and equitable to the parents and more importantly, be in the best interest of the children.
You can calculate the child support amount for your case by either contacting an attorney, who has access to a support calculator, or by going to the County Clerk and requesting the official forms upon which you can calculate the amount likely to be set, if left to a judge. This is vital data for you to have before you discuss support with your spouse.
Child Support Modification
California law allows either party to apply for a change in child support payments. The law requires that before a support change will be considered by the court, a material change in the status of the parties or the children must have occurred. This can include a change in the financial status of either party (for better or worse) or a change in the needs of the children such as education costs or an illness.
A written agreement made prior to a marriage that describes the distribution of assets should there be a divorce is called a prenuptial agreement.
Agreements made in writing by both parties regarding distribution of assets either before or during the marriage will be held valid and enforceable by the court unless either party can prove that the agreement was made under duress.