Known as The Golden State thanks to the flood of incoming prospectors in 1848 and ’49, California is a state with a name synonymous with opportunity. As such, California divorce laws are some of the most clear-cut and progressive of any state.
In 1970, Governor Reagan introduced the no-fault divorce that set into motion a slew of divorces and record filings. As time went on, other states adopted their own versions of laws allowing no-fault divorces. And today, it’s one of the easiest ways to end a marriage.
Grounds for Divorce Under California Divorce Laws
The legal reasons for getting divorced or obtaining a dissolution of marriage are as follows:
- Irreconcilable Differences – you have probably heard the saying that “opposites attract” and maybe it is even true, but it is also possible that the same (or different) differences that brought you together are now making it difficult to impossible for you to remain united in matrimony. Maybe the things you found attractive in your spouse to begin with have turned into a nuisance over time. Or perhaps you have discovered things about her that would have prevented you from marrying her at all, had you known about them beforehand. In any case, the court determines which differences make substantial reasons (aka grounds) for the dissolution of marriage. If you show the court that the differences between you make it unreasonable for you to continue the marriage, you may be granted dissolution of marriage based on these grounds.
- Incurable Insanity – To obtain a decree of dissolution of marriage for reasons of incurable insanity, it is necessary to show proof to the court that the insane spouse was (at the time of divorce), and still is, incurably insane. This requires medical records and/or psychiatric testimony.
Once you have your grounds for divorce covered under California divorce laws, the next step is to determine the appropriate place to file. If you intend to file the petition within the state, you must be a resident for a minimum of six months prior to filing the action.
You must also be a resident of the county in which the action is filed for three months ahead of the filing.
Name of Court and Title of the Action/Parties
With the why and where determined, next address the who and what. In every divorce (and marriage), the spouses carry the leading roles. The Petitioner files the action in court and the Respondent takes the defensive role.
The action for dissolution of marriage is known as the Petition for Dissolution of Marriage, while the action granting the dissolution is referred to as a Final Judgement of Dissolution of Marriage. Once you have this section in order, you have nailed the basics of mastering California divorce laws.
No one likes waiting. But it’s an unfortunate and necessary part of the process. In California, the waiting period is six months from the date the respondent was served a copy of the summons and petition or the date of appearance of the respondent, whichever comes first. This is the minimum amount of time you must wait before a divorce may be granted.
In cases where there appears to be a reasonable chance for reconciliation, the court shall order a continuance of the proceeding (much like hitting the pause button during a movie to make a snack run).
This gives the parties a chance to sort out any confusion before deciding whether to move forward with the dissolution of the marriage. The continuance may be no longer than thirty days.
Summary Dissolution of Marriage
Not every marriage ends in bloodshed and tears. Sometimes a couple is able to put aside their differences long enough to come to an agreement regarding the terms of their divorce. Couples who meet all of the requirements listed below may opt to file a summary dissolution of marriage.
This requires the filing of a joint petition signed by both spouses, stating that all of the requirements for summary dissolution have been met, providing the mailing address of both spouses, and a statement of whether or not the wife desires to have her former name restored.To qualify for a summary dissolution, all of the following conditions must exist at the time of filing:
- At least one spouse must be a resident of the state for six months prior to filing for divorce, and a resident of the county in which the action is filed for three months prior to the filing of divorce.
- Irreconcilable differences have caused an irreversible breakdown of the marriage and the marriage should be dissolved.
- Neither spouse has any children born prior to or during the marriage or adopted during the marriage, and the wife, to her knowledge, is not pregnant.
- At the time the petition is filed, the marriage is no more than five years in duration.
- Neither party has any interest in any real property, wherever situated, with the exception of a lease of residence, which must terminate within one year of the date of filing of the petition and must not include an option to purchase.
- There are no more than four thousand dollars ($4,000) in unpaid obligations incurred by either or both spouses after the date of marriage, excluding amounts owed for automobiles.
- The total fair market value of the community property assets is less than twenty-five thousand dollars ($25,000), excluding all encumbrances and automobiles and including any deferred compensation/retirement plans
- And neither party has separate property assets in excess of twenty-five thousand dollars ($25,000), excluding all encumbrances and automobiles.
- The parties have executed an agreement setting forth the division of assets and liabilities and have executed all documents necessary to effectuate the agreement.
- The parties waive any right to spousal support.
- The parties, upon entry of judgment of divorce, irrevocably waive their rights to appeal and for a new trial.
- The parties have read and understand the summary dissolution of marriage brochure provided by the county clerk.
- Both parties desire that the court dissolve their marriage.
A judgement of legal separation may be obtained in the State of California on the same grounds as those permitted for an action of dissolution of the marriage.
The courts in the State of California may award support to either spouse, without regard to marital misconduct. The goal in awarding spousal support is to help the receiving spouse become self-supporting within a reasonable time.
Generally, the courts consider one-half the length of the marriage to be a reasonable time for a spouse to become self-supporting.
Factors the court will consider in determining the length and amount of an award of spousal support include:
- Marketable skills of the supported spouse
- Extent to which the supported spouse’s present or future earning capacity has been impaired due to duties of the marriage
- Extent that the supported spouse contributed to the earning capacity of the supporting spouse
- Ability of the supporting spouse to pay
- Needs of each party
- Obligations and assets of each party
- Duration of the marriage
- Age and health of the parties
- Other factors the court deems equitable and just
Distribution of Property
One of the more difficult aspects of a divorce to deal with is the division of property. The longer your marriage lasts, the more shared property there is to fight over. The lines between what is “mine,” what is “yours,” and what is “ours” become blurred over time.
The good news is that California law allows each spouse to keep any property belonging exclusively to that spouse. The court will divide any community/shared property equally between the two parties.
Community property is presumed to be all property acquired by the parties during the marriage and held in joint form. Exemptions are made when the title of the property clearly states that the property belongs to one spouse or if both spouses have a written agreement that the property is separate property.
As is usually the case in life, children often complicate matters. A marriage involving children requires more work and attention than one without kids.
Much like the distribution of property, child custody involves distribution of the child/children’s time. Like with shared property, both parties have equal rights to the child/children’s time. Some people consider child custody to be a battle, with the winner receiving full custody.
This type of thinking is unfair to the child/children as it considers only the rights and interests of the parents. A child is not a timeshare, however, and the matter of child custody requires consideration of the child’s best interests rather than the rights of one spouse over another.
In an ideal world, a child would be able to spend equal time with both parents. In the real world, equal is not always equal. Nor is it always plausible.
Children must have a stable environment to grow and develop properly. Unless the parents are best friends living next door to each other, the situation is not likely to be ideal. For this reason, the court will determine the issue of child custody only after consideration of the following factors:
- Health, safety and welfare of the child
- History of abuse by a parent
- Nature and amount of contact by both parents
- History of substance abuse
- Wishes of the child
There is a presumption that joint custody is in the best interests of the child. This is true only if:
- Neither parent is abusive or neglectful
- Both parents are competent and capable of taking care of a child
- And all parties have the best interests of the child in mind
If the court does award joint custody, the court shall also specify the rights of each parent to physical custody of the child. The proximity of the parents’ homes is one relevant factor in determining custody. Other relevant factors include the child’s:
- Social life
- Relationship with parents and siblings, where applicable
- And other factors that impact the well being of the child
When custody is given to one parent, the court shall grant reasonable visitation to the non-custodial parent, unless it can be shown that such visitation is not in the child’s best interests. Each parent shall also have equal access to the child’s records, including, but not limited to, medical, dental, and schooling.
If it appears on the face of the petition that custody is a contested issue, the court shall order mediation to assist the parties in settlement of those contested issues, and to assist in the development of an agreement that assures the child of close and continuing contact with each parent.
Either or both parties may be ordered to pay child support in an amount reasonable and necessary for the support of any minor children of the marriage. The State of California has enacted child support guidelines, which establish the presumptive correct amount of child support due. Deviation from the guidelines requires the court to state in writing why the application of the guidelines would be unreasonable or unjust, and the:
- Amount of support that would have been ordered under the guidelines
- Reasons for the deviation
- And reasons the support ordered is in the best interests of the child
Either spouse may have their name restored to their birth or former name by simply requesting the name change in the proceeding for dissolution of marriage
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