If you’re considering or going through a divorce in California, it’s important to understand several key aspects of the process, as the state has specific laws and procedures that can significantly affect the outcome of your case. Here’s an overview of what every client should know about California divorce:
1. California is a No-Fault Divorce State
- No-Fault Divorce: California is a no-fault divorce state, meaning that you don’t have to prove that your spouse did something wrong (like infidelity or abuse) to get a divorce. The most common ground for divorce in California is irreconcilable differences, meaning that the marriage has broken down and cannot be repaired.
- Legal Separation Option: If you do not want a divorce for personal or religious reasons, you can opt for a legal separation instead, which allows you to live apart while addressing issues such as division of assets and child support.
2. Residency Requirements for Divorce
- To file for divorce in California, at least one spouse must meet the residency requirement. This means that:
- One spouse must have lived in California for at least six months before filing.
- The county in which the petition is filed must be the county where the filing spouse has lived for at least three months.
- If these requirements are not met, you may not be able to file for divorce in California, though you could seek a legal separation.
3. Divorce Process and Timeline
- Filing the Petition: The divorce process begins when one spouse files a Petition for Dissolution of Marriage (Divorce Petition). This document outlines the request to dissolve the marriage and includes issues like child custody, division of property, and spousal support.
- Response: The other spouse has 30 days to respond to the petition. If they don’t respond, the petitioner may be granted a default judgment.
- Waiting Period: California has a mandatory 6-month waiting period from the date the divorce petition is filed before a divorce can be finalized. This means that even if the divorce is uncontested, it typically takes at least six months before the court can issue a final judgment.
4. Community Property State
- Community Property: California is a community property state, which means that all assets and debts acquired during the marriage are generally divided equally (50/50) between the spouses. However, assets acquired before the marriage or after separation may be considered separate property.
- Division of Property: This includes real estate, bank accounts, retirement accounts, investments, and even debts like credit cards or mortgages. It’s important to provide full disclosure of all assets and debts during the divorce process to ensure fair distribution.
- Valuation: In some cases, assets, especially business interests, real estate, and retirement accounts, may need to be appraised or valued to determine their worth for division.
5. Child Custody and Child Support
- Custody: California courts prioritize the best interest of the child when determining custody arrangements. There are two types of custody:
- Legal Custody: The right to make decisions about the child’s education, healthcare, and welfare.
- Physical Custody: Where the child will live.
- Custody arrangements can be joint or sole depending on what the court determines is best for the child, often involving joint physical and legal custody unless one parent is deemed unfit.
- Visitation: If one parent does not have primary physical custody, they are typically entitled to visitation rights. The court may order specific times for visitation, or it may be left to the parents to agree.
- Child Support: In California, child support is calculated using a state-mandated formula that considers the parents’ incomes, the time each parent spends with the child, and other factors like health insurance and childcare expenses. Child support typically continues until the child turns 18 (or 19 if still in high school).
6. Spousal Support (Alimony)
- Temporary Spousal Support: In some cases, one spouse may be entitled to temporary spousal support (also called alimony) during the divorce process. This is typically designed to help the lower-earning spouse meet their needs while the divorce is ongoing.
- Permanent Spousal Support: After the divorce is finalized, a judge may award spousal support if one spouse needs financial assistance. The amount and duration of spousal support depend on factors such as:
- The length of the marriage
- The standard of living during the marriage
- Each spouse’s income and earning capacity
- The recipient spouse’s needs and ability to support themselves
- Modifications: Spousal support can be modified or terminated if there is a change in circumstances, such as a significant change in income or remarriage of the recipient spouse.
7. Debt Division
- In addition to dividing assets, debts incurred during the marriage are also subject to division. Community debts (such as credit card debt or mortgage debt incurred during the marriage) are typically divided equally between the spouses, regardless of who incurred the debt.
- Separate debts (such as debts incurred before the marriage or after separation) remain the responsibility of the spouse who incurred them.
8. Contested vs. Uncontested Divorce
- Uncontested Divorce: If both spouses agree on all issues (custody, division of property, spousal support, etc.), they can file an uncontested divorce, which is typically faster and less expensive. Both parties will need to submit a marital settlement agreement that outlines their agreed-upon terms.
- Contested Divorce: If the spouses cannot agree on one or more issues, the divorce is contested, and the court will make the final decisions. This can lead to more time-consuming and costly litigation, including hearings and trials.
9. Mediation and Alternative Dispute Resolution
- California courts often encourage spouses to try mediation or other forms of alternative dispute resolution (ADR) before going to trial. Mediation is a process where a neutral third party helps the spouses reach a mutually acceptable agreement. This can save time, money, and the emotional toll of a prolonged court battle.
- ADR methods such as collaborative divorce or arbitration may also be options, depending on the circumstances.
10. Family Law Attorneys and Legal Representation
- Hiring an experienced family law attorney can help you navigate the complex legal process of divorce in California. A good lawyer will:
- Explain your rights and obligations
- Help you make informed decisions regarding custody, support, and property division
- Represent your interests in negotiations and court hearings
- If the divorce involves children, spousal support, or complex property issues, having skilled legal representation is especially important.
11. Domestic Violence and Divorce
- If there is a history of domestic violence in the marriage, the victim may be entitled to request a restraining order or protective order from the court. These orders can provide temporary custody of children, spousal support, and other protections.
- A history of abuse can also influence custody decisions and impact the division of property.
12. Final Judgment and Divorce Decree
- Once all issues are resolved (either through settlement or trial), the court will issue a final judgment of dissolution, which legally ends the marriage. The divorce decree will include orders related to child custody, visitation, child support, spousal support, property division, and any other outstanding matters.
Conclusion
Divorce in California involves various legal, financial, and emotional aspects, and understanding the state’s specific rules and guidelines can help you make more informed decisions. Whether your divorce is uncontested or contested, having a clear understanding of the process and working with an experienced family law attorney can help protect your rights and ensure a fair outcome.