Divorce Laws in California

What You Need to Know About Divorce Laws in California

Understandably, navigating a divorce or separation is challenging on numerous levels. In dealing with the legal side of a divorce, here’s what you need to know about divorce laws in California.

California divorce laws are based on the California Family Code, which covers all legal issues related to family, marriage, and divorce in the state. Based on the Family Code, a couple may choose to end a marriage or domestic partnership through one of three ways: 1) divorce, 2) annulment, and 3) legal separation.

Basics of Divorce Laws in California

Firstly, it is important to understand that California is a “no-fault” divorce state, meaning that the spouse or domestic partner who is seeking a divorce does not have to prove that the other spouse or domestic partner did anything wrong. Instead, one spouse or domestic partner must state that the couple can no longer get along, to the point of inability to keep the marriage alive. This is legally known as “irreconcilable differences.” A divorce can also be filed on the basis of permanent legal incapacity to make decisions. For this ground, there must be proof – such as competent psychiatric or medical testimony – that the spouse in question does not have the legal capacity to make decisions.

It is also pertinent to note that both spouses do not need to agree to end the marriage. An individual cannot stop the divorce process or refuse to participate if their spouse or domestic partner initiates action. If a spouse or domestic partner refuses to participate in the divorce case, the spouse or partner will still be able to receive a “default” judgment – ultimately finalizing the divorce.

Eligibility Requirements

There are certain eligibility requirements that must be met in order to file for a divorce in California. Specifically, one of the two parties must have lived in California for at least 6 months prior to the filing of the divorce. In order to be eligible to file in a county within California, one of the two parties must have lived in that specific country for at least 3 months prior to filing for divorce.

There are different eligibility requirements for a summary dissolution. Often considered a simplified version of the divorce process, eligible couples do not have to fill out as much paperwork or appear in court or a trial. Eligibility requirements for summary dissolution are as follows:

Have been married for less than 5 years
Have no children born or adopted together before or during the marriage (and cannot be expecting a new child)
Must not own any land or any buildings
Must not rent any land or buildings except for current residence (and not have a one-year lease or an option to buy)
Have less than $45,000 of property (community property) acquired while married (not including cars)
Own less than $45,000 in separate property (ex. property owned before marriage or obtained as a gift/inheritance)
Have less than $6,000 in debts acquired since marriage (not including car loans)
Have a signed agreement that divides property, cars, and debts

Community Property

Under the California Family Code, all property acquired by either party while married is equally owned by each partner. However, a spouse who received an inheritance or a gift retains sole ownership of it.

In California, debt is also considered community property. This means that any debt that either party accrued throughout the marriage is also owned equally by both partners. If a spouse is in a better financial condition to pay off debts, it is possible that the court may assign a greater portion of the debt to that spouse.

Division of Assets

California divorce laws allow spouses to agree on the division of some assets while also seeking a ruling on the division of other assets. It is important to note that not every asset needs to be divided equally. Asset division is not limited to real property, and may include financial holdings as well, such as bank accounts, stock portfolios, IRAs, and 401ks.

The aforementioned topics are often difficult to navigate on one’s own. In many cases, couples choose to rely on a combination of lawyers, financial analysts, and accountants to determine an equitable division of assets.

Spousal Support

Also known as alimony, spousal support is financial support one either receives from or provides to a spouse. A judge will consider numerous factors when determining a fair alimony award. Some of these factors include, but are not limited to: the earning capacity of both parties, the ability of the other spouse to pay alimony, needs of both parties based on the standard of living established during the marriage, length of the marriage, and age and health of both parties.

Spousal support can either be temporary or permanent. Temporary spousal support or alimony is mainly a form of financial support to the lower-earning spouse during the divorce proceeding. Temporary spousal support ends once a permanent spousal support award is agreed upon. While the term “permanent” insinuates that alimony will continue permanently, this is not the case. Generally speaking, permanent spousal support lasts no longer than half the length of the marriage. However, this may be different in each unique case.

Child Custody

In evaluating a child custody case, California judges must consider. A judge is not permitted to give preference to either of the child’s parents on the basis of the parent’s sex. Judges must consider two guiding policies:

The best interests of the child/children (health, safety, and welfare)
The benefit of having frequent and continuing contact with both parents

Judges consider numerous parenting factors when deciding each individual case. This may include but is not limited to the age of the children, each parent’s living situation, each parent’s history with drug use or alcohol abuse, each parent’s history of abuse or neglect, and each parent’s willingness to support the other parent’s relationship with the child or children.

California law requires that courts consider children’s preferences in custody. The child must be mature enough to make an informed and intelligent decision regarding this. While the law does not specify an age, substantial weight is given to the child’s preference if he or she is older or more mature.

Child Support

If the child’s parents cannot come to an agreement on child support, then a judge will decide on the arrangement. California has a statewide guideline to figure out how much child support is needed in individual cases.

The guideline calculation considers:

Parents’ income or potential income
Parents’ additional income
Number of children shared by these parents
Time each parent spends with their children
Tax filing status of each parent
Support of children from other relationships
Health insurance expenses
Mandatory union dues
Mandatory retirement contributions
Daycare costs and uninsured health-care costs
Other factors

FAQs About Divorce Laws in California

What if my spouse or domestic partner refuses to get a divorce?

In California, an individual cannot stop the divorce process or refuse to participate if their spouse or domestic partner initiates action. Therefore, you will not face any impediment if your spouse or domestic partner refuses to sign any paperwork. You will still be able to get a default judgment – finalizing the divorce.

What happens if my spouse or domestic partner filed for divorce first?

Usually, it does not matter who files the divorce papers first. The court will not and cannot give preference to the spouse who first filed the divorce.

Will getting divorced affect my immigration status?

It depends. There is no clear answer to this question as immigration law becomes increasingly complicated through the lens of divorce. Consider speaking with an immigration lawyer to discuss the possible consequences associated with filing for divorce.

If I am a victim of domestic violence and wish to get a divorce, is there anything I need to do before filing my case?

If you are a victim of domestic violence, make sure to have a safety plan prior to informing your spouse or partner that you intend to file for a divorce, legal separation, or annulment. Additionally, call 1-800-799-7233 to find a domestic violence agency within your county.

Contact Her Lawyer

Seeking a divorce in California? Contact us. We’ll get you in touch with the most qualified lawyer for your unique legal matter. Get your free consultation with one of our Divorce Attorneys in California today!