A guide to california divorce

Married couples who file for divorce in California must first meet California residency requirements. Once those requirements are met, depending on the length of the marriage and the circumstances of the divorce, there are a number of filing options available to those seeking a divorce in California. Finally, under California law, once a couple files for divorce, a number of issues will be determined by the court, including division of property and debts, spousal support, child support, and child custody and visitation.

Here are some basics about California divorce law:

CALIFORNIA DIVORCE RESIDENCY REQUIREMENTS

In order to file for divorce in the State of California, the filing party or "petitioner" must meet certain residency requirements. These requirements are necessary in order to confer upon the court the necessary jurisdiction to make decisions regarding the parties. Laws regarding residency requirements were enacted to ensure fairness and equity to all parties. Otherwise, one divorcing party could in theory force the other party to appear in court far from where that party lives, or risk forfeiting significant rights. Accordingly, in order to obtain a California divorce, either the petitioner or the respondent must have lived in the State of California for six months, and in the specific county in which the petition for divorce is filed for at least three months immediately preceding the filing of the petition.

CALIFORNIA DIVORCE OPTIONS

California marriage and family relationships are governed by a set of statutes or laws identified as the California Family Code. Under California law, individuals who want to terminate a marital relationship have a number of options available to them, including legal separation, annulment, dissolution and summary dissolution

If a couple has been married for less than five years, has no children and has minimal assets, California law permits the couple to file for "summary dissolution." This is a relatively fast, simple and inexpensive alternative to the regular dissolution proceeding.

A California married couple can also seek an annulment of a marriage under certain circumstances. For example, if it is determined that a marriage is incestuous or bigamous, the marriage is considered void under California's Family Code and may be so declared upon petition of either party to the marriage. A marriage is not void, but is voidable under California law, where the petitioner was a minor at the time of the marriage, where there was fraud or coercion, or where one spouse or the other has a physical or mental condition rendering the marriage unviable.

Finally, if a couple is not yet ready for divorce, but wants to live separately and to be considered separately for purposes of finances, taxation and other legalities, they can file for a legal separation.

GROUNDS FOR DIVORCE IN CALIFORNIA

California is a "no-fault" divorce state, which means that the court will not assign fault to one spouse or the other for the disintegration of the marriage. Instead, California has a single grounds for divorce: Irreconcilable differences between the parties which have led to the irremediable breakdown of the marriage. In other words, for whatever reason, dissolution of the marriage is appropriate because the parties just do not get along anymore. For purposes of obtaining a divorce, the courts are not interested in whether one of the parties has committed adultery or inflicted mental or physical abuse upon the other. These things may, however, in relevant cases, be considered in deciding other issues, such as child custody or family support.

COMMUNITY ASSETS AND DEBTS

California is a "community property" state. This means that the courts are not going to put a great deal of effort into determining who did what or who earned what during the marriage for purposes of dividing up property. In California, it is assumed that both parties contributed equally, whether directly or indirectly, to earning income for the "community" (the couple or family) and to the acquisition of wealth, including real and personal property. Accordingly, in the ordinary case, money and property acquired during the marriage will be divided equally between the parties. By the same token, debts acquired during the marriage will generally remain the joint obligation of the divorcing spouses.

Other factors may also come into play in dividing up property. For example, if the marriage was an unusually short-term marriage, and where one party is an extraordinarily heavy earner, then the other party may be entitled to a lesser share of the assets earned during the marriage. On the other hand, under California law, a marriage of ten years or longer is considered a long-term marriage. Under those circumstances, a spouse may be entitled to a more equal division of the property acquired during the marriage, even if the other spouse earned a great deal more money.

SEPARATE PROPERTY

While divorcing spouses generally share equally in the community property acquired during the marriage, California law provides for each spouse to retain his or her own, separate property. In California, separate property includes money or property that either party acquired before the marriage, gifts that were made to one spouse or the other, and inheritances bequeathed to one spouse. In other words, if the wife's parents give the wife a diamond necklace as a birthday gift, that gift will under most circumstances be considered the wife's separate property.

Separate property may also include property that was purchased during the marriage with the separate property funds of one of the parties. For example, if a married couple purchases a home outright, using funds that the husband had prior to the marriage, or using funds that were bequeathed to the husband during the marriage by his great aunt, the court may determine that the home is, in fact, the husband's separate property.

In some cases, property may be "mixed" in character. In other words, the property may be partially separate property and partially community property. For example, if a married couple purchases a home using the husband's separate property funds, and the couple divorces ten years after the purchase, the wife may have acquired a community property interest in the property. For example, over those ten years, she may have contributed to paying for homeowner's insurance and property taxes, or she may have contributed labor to the care and maintenance of the home. Additionally, over the years, those things may have been paid from community funds, even if not paid directly by the wife. In that case, the court will generally determine that a percentage of the equity in the home is the husband's separate property, while the remaining percentage is community property to be divided equally between the husband and wife.

SPOUSAL SUPPORT

Spousal support may be granted to one spouse, payable by the other spouse, based on a number of factors. For example, a spouse may be entitled to spousal support if he or she gave up a career in order to take care of the couple's home and family while the other spouse worked or attended school. Spousal support is generally granted for a relatively short period of time in order to give the supported spouse an opportunity to obtain an education or re-enter the work force and become self-supporting.

RESTORATION OF NAME

Under California law, if one spouse took the other spouse's last name during the marriage, he or she is entitled, upon request, to have his or her previous name legally restored as a part of the judgment of divorce.

CHILDREN OF THE MARRIAGE

If children were born to the couple during the marriage, issues of child custody, visitation and support will generally be decided at the time of the divorce. Under California law, child custody and visitation is decided in accordance with what is determined to be in the best interests of the children themselves. The court will decide which parent will receive "physical custody" of the children, that is, with which parent the children will live. The court will also decide which parent receives "legal custody" of the children, in other words, which parent is entitled to make decisions on behalf of the children with respect to things such as education and healthcare.

The court may grant sole physical and legal custody of the children to one parent, or the court may grant sole physical custody of the children to one parent and joint legal custody to both parents. More and more often, courts are granting joint physical and legal custody to both parents so that the parents can continue to share equally in raising and caring for their children. If joint custody is granted, then one parent is generally granted "primary" custody for purposes of residency and making certain decisions regarding the children.

If sole physical and legal custody is granted to one parent, then the other parent may be required to pay child support in order to contribute to the support of the children. California has minimum child support guidelines which are used to determine the appropriate amount of support. Above and beyond guideline support, the court will consider the respective incomes of the parties and the ability of one party or the other to pay for health insurance and extraordinary expenses, such as medical expenses and educational expenses. The court will also take into consideration the amount of time the children spend with the non-custodial parent. For example, if the children are spending a great deal of time with the non-custodial parent, the non-custodial parent's obligation of support may be reduced accordingly.

FUTURE JURISDICTION

Under California law, the Superior Court in the county where the divorce was granted retains jurisdiction over the divorce indefinitely. In other words, if a dispute arises regarding a property issue several years after the divorce was granted, an ex-spouse can go back to court and ask the judge to make a decision and to resolve the dispute. Most often, divorced couples go back to court to revisit issues relating to spousal support, child support, or child custody and visitation.