CALIFORNIA DIVORCE INFORMATION CENTER 

Overview

Divorce in California is a Dissolution of Marriage.  California law states that you or your spouse must be a resident of California for at least six months before filing and must live in the county where you are filing for at least 3 months.  If you are going through a divorce, an experienced California dissolution of marriage attorney can discuss the legal issues with you and help you understand what will happen.

The filing spouse, or the petitioner, begins the dissolution proceeding by filing a Petition for Dissolution of Marriage.  The other spouse is the respondent.  Once the respondent receives the Petition, he or she has 30 days to respond.  The response is filed in the Superior Court where you live.  The process resolves all marital issues: child custody, child support, child visitation, spousal support, finances, and property in accordance with California statutes.

A Judgment of Dissolution of Marriage is the final order – after all issues are resolved.  The case can be settled at any time or proceed to the courtroom where the judge will resolve all issues.  It takes a minimum of 6 months and 1 day before the marital status is terminated.

No-Fault State

California is a no-fault divorce state.  A divorce can be granted by stating irreconcilable differences between the spouses or showing that one of the spouses has incurable insanity.   

Next Steps

Once the papers are filed and served, temporary restraining orders take effect – Neither spouse can sell property, remove children from the state of California, or change insurance policies in anyway. 

Discovery proceedings are held, which include depositions, interrogatories, subpoenas, debts, and investigation of assets. Next hearings for temporary orders are held to discuss Order to Show Cause, Ex-parte or emergency hearings, child custody, visitation, support, alimony, and finances. 

During the trial permanent orders are awarded regarding child custody, visitation and child support.  The property and assets are divided.  Alimony is determined and all debts are divided. 

Property Division

California is a community property state.  Community property is the property obtained during the marriage – both real and personal.  Examples of community property are the residence, any vacation home, automobiles, and furnishings, monies earned during the marriage, including pension, 401K, retirement accounts and bank accounts.  Property located outside California is also considered community property.  Unless there is a pre-nuptial agreement, all property is divided equally. 

Separate property is property brought into the marriage.  This is usually not divided unless used during the marriage.  Examples are an inheritance, money, stock, car or pension. 

Mixed property is property that was owned prior to the marriage but brought into the marriage for both parties to use.  An example is a home.  Once the home is made the family home and mortgage payments are made together, the home most likely would become community property. 

Pre-nuptial Agreement – A pre-nuptial agreement is made prior to the marriage, when one or both parties have a large estate or a lot of money, or there are children from a previous marriage involved.  It is made to protect the money or assets they had coming into the marriage in the event it ends in dissolution. 

Marital Agreement is an agreement that classifies their property.  It is made before the marriage and at the time of dissolution. 

Postnuptial Agreement - is an agreement made before the marriage regarding the classification of their property.  If disputed, it will be determined if both parties had full disclosure of assets, if signed under duress and if it is fair to both parties. 

Alternative Dispute Resolution (ADR)

There are ways to lessen conflict during dissolution besides a nasty court trial. 

Conciliation Courts

These courts are located in the larger counties throughout California.  The purpose of this court is to attempt reconciliation.  A party may petition the court for help in resolving family matters.  Neither party can file for dissolution while their case is in a conciliation court. 

Mediation

When two people cannot agree on child custody or visitation, California law requires them to attend mediation to resolve these issues.  The couple meets with a neutral third party in hopes of resolving all or some of the disputes. 

Collaborative Law

Collaborative law is a process that requires a commitment from each party and their lawyer that they will not go to court.  All involved agree that if they are not able to settle issues on the table and one party decides to go to court, both attorneys must withdraw from the case.  Unless both parties agree, any documents prepared during the process cannot be used in court. 

The pros of collaborative law cases include less expensive, take less time and a cooperative atmosphere versus conflict.  However, if the process fails, the extra costs involved in starting over are a disadvantage. 

Child Custody

Child custody is the legal relationship (when pertaining to divorce) between a parent and child regarding major decisions and the care provided.  The judge does not rule by gender – the judge determines the best interests of the child.  The judge looks at who will provide best for the child.  In some instances, the court will appoint an attorney to represent the child.  Mediation is mandatory to determine custody and visitation if the parents cannot agree on an arrangement.  Joint Legal Custody is the #1 preference of the court.  This means the child will spend an equal amount of time with each parent.  Both parents will make major decisions together regarding the child’s medical, education and overall welfare. 

Child Custody and Domestic Violence

Evidence of domestic violence in a marriage that has children plays an important part in the dissolution – even though California is a no-fault state.  The National Council of Juvenile and Family Court Judges defines domestic violence as "a dynamic between parents whereby one partner seeks to control the other through the use of abusive patterns of behavior that operate at a variety of levels of emotional, psychological, and physical." 

California law questions presumption against awarding sole or joint custody to a parent who has committed domestic violence.  Unless the accused can prove he or she is innocent of this charge, the judge will not award custody to that parent.  The parent can overcome the presumption by completing one or all of the following programs:  a batterer’s treatment program, drug and alcohol program, and a parenting class.  The parent can also successfully complete his or her probation or parole, obey the terms of a restraining order or show he or she has not committed any violent acts. 

Child Support

Child support is determined by California Child Support Guidelines.  It is paid by the non-custodial parent and used for daily expenses so the child’s standard of living is not disrupted because of divorce.   

Guideline factors used to determine support include the number of children in the family, income of each parent, time-share arrangements (visitation), day care expenses, the standard of living in California, the cost of raising children in California, and medical insurance.  It is paid until the child reaches 18. 

Spousal Support

The court can award "alimony" or spousal support to one of the former spouses.  California law states that married people have an obligation to support each other during the marriage.  The money is to keep the standard of living he or she was used to during the marriage. 

CA Family Code Section 4320 is used to determine support.  Factors include the length of the marriage, financial needs of the former spouse, age and health, education, expenses, and incomes of each party.  The judge will decide how long this support is paid. 

Temporary spousal support can be awarded during the time of filing and the final judgment.  The same factors used for the final judgment are used for the temporary one.  A temporary order will not change the final order. 

Modifications can be made later on if circumstances change.  Circumstances include unemployment, illness or disability.  California law states that a spouse convicted of domestic violence in the last five years, should not be awarded support. 

Conclusion

Ending a marriage is never easy, especially if there are children involved.  Emotions run high.  If there is evidence of domestic violence in the marriage, it will play a major role in determining custody of the children.  Whether you are considering divorce or already been served with divorce papers, call an experienced family attorney near you. 
 
 

Links to additional information

You can print the necessary forms to file for Dissolution of your marriage on the Judicial Council and Administrative Office of the Courts website located at www.courtinfo.ca.gov 

California statutes are detailed at www.leginfo.ca.gov 

The National Council of Juvenile and Family Court Judges have information on the court system and systems affecting the lives of families.  The website is located at www.ncjfcj.org 

If you are looking for a support group to help you through this very emotional and stressful time, visit Divorce Care at www.divorcecare.org

Other Family Law Articles

• Family Law FAQ's
• What is meant by "Family Lawyer"
• What does a Family Law Attorney do?
• Child Custody
• Family Law
• Child Support