Divorce in California: Definition and Laws
By Teo Spengler
Updated September 18, 2018
It takes two to marry in California, but only one to divorce. California offers just no-fault divorce based on irreconcilable differences, without any need to plead or prove bad actions by the other spouse. This means that if one spouse is ready to end the marriage, that's enough. If this is a road you are beginning to walk down, you'll do well to learn the basics of divorce in California, including property division, debt division and family support issues.
Divorce in California in 2018
If you ever watched old Perry Mason reruns on television, you may remember how lawyers used to send out private investigators to catch a client's spouse in someone else's bed. It used to be you could get a divorce only if you claimed and proved that your spouse had behaved very badly. The grounds varied from state to state but usually included infidelity, cruelty, abandonment and similar offenses.
But those days are long gone. Every state now offers some form of no-fault divorce. While some states offer no-fault in addition to fault divorces, states like California have gotten rid of fault divorce entirely. In fact, California was the first state to offer no-fault divorce. If you want to divorce in California, only two words are necessary: irreconcilable differences.
If both you and your spouse agree that your marriage has irreconcilable differences, you can get a divorce. If only you think your marriage has irreconcilable differences, you can still get a divorce. No matter how much your spouse opposes the idea of getting a divorce, no arguments will be sufficient to prevent it from happening
Filing for Divorce in California
You initiate a divorce in California with a petition for dissolution. This is a court form you can obtain online from the court website, or you can get a paper copy from the court itself.
You'll need to keep the California residency requirement in mind. You can't just drive into California from another state to get a divorce, like you can with a few other states. To be eligible to file papers for a divorce in California, either you or your spouse must have resided in the state for at least six months. In addition, you must file in a county in California where either you or your spouse has lived for at least three months. Then, once the divorce papers are filed, there is a six-month waiting period before you can be officially divorced.
Read More: California's No Fault Divorce Law
Summary Divorce in California
The procedure for filing for divorce in California depends on whether you qualify for a summary divorce. If you do, this is a quick, relatively simple way to end your marriage, and some people do it without hiring an attorney to represent them. In fact, often you don't even have to set foot in court. But in order to qualify, you have to meet very specific criteria. Your marriage must have lasted less than five years and not produced children. You must not own any real estate together, nor have significant amounts of property or debt.
If you qualify, and your spouse is willing to go along with the divorce, the two of you decide how the property and debts will be divided, put it in a written agreement and file it with the appropriate court. You also have to file a joint divorce petition and all other basic divorce forms required in your county and pay the filing fees. Do you have to wait out the six months? Yes you do, but you will owe few divorce costs or fees, and you don't have to jump through all the hoops those with regular divorces are obliged to do.
Filing Papers for Regular Divorce
If you don't qualify for a summary divorce, you have to file a regular petition for divorce, plus other required papers with the court clerk. Your court will have a packet of divorce forms that contain step-by-step instructions on how to complete them. It may also have family law facilitators or self-help center personnel who can answer questions about the process.
Once the papers are filed, you must serve them on your spouse. The term "serve" is a legal one, meaning that you need to get the papers into your spouse's hands in ways specified in the laws. By far the cheapest is to have another adult personally hand them to your spouse. Don't do it yourself, or it isn't legal service.
Default Divorce in California
One of the papers you must file with the court and serve on your spouse is a summons, a document that tells him that a divorce petition has been filed with the court and that he has only 30 days to file a response. Sometimes a spouse simply doesn't respond. A person who doesn't respond to a divorce summons and petition is making a big mistake, because failure to respond doesn't stop a divorce. In fact, it makes the process easier for you. Once the period passes and no response comes in, you can ask the court to enter your spouse's default. After that, you can file papers asking for a default judgment of divorce that the court is very likely to grant.
You can find the step-by-step procedure and all the forms you need to fill out in a default forms packet available from your court. You must fill out and file forms asking for a divorce judgment together with any other orders you want the court to make. These orders can concern California divorce property division, spousal support and, for those with kids, custody, visitation and child support. File these forms after at least 30 days have passed since you served the petition on your spouse.
Contested Divorce in California
Although your spouse cannot nix the entire divorce process, she has a right to contest your proposals about property division, custody and parenting time and also support issues. Be sure you understand California law and court policy on these matters before you begin the court fight. You'll save yourself lots of time and attorney fees. The very best thing for both of you is to be able to compromise and come up with an agreement on these issues. Some California courts require mediation or some other alternative dispute resolution before you start litigating. Take advantage of any program available.
If you have minor children, a lot of assets, a long marriage or a lot of debt, you will probably want to bring an attorney into the picture. Divorce can be a complex process and these issues are very important ones.
Divorce in California Community Property
Unless you and your spouse signed a written agreement before marriage about how you would handle your finances during marriage, it's important to understand California's community property law. The default method of marital property division in California is called community property. The basic principles are that each person holds everything he or she brought into the marriage as separate property and gets all of this returned as separate property after a divorce. This is also true for any gifts either of you received during the marriage and any inheritance you received. It is your separate property.
However, everything either spouse earns during a marriage is community property in which the two spouses each have an equal interest. He earns $100, you own $50 of it, and vice versa. But it's not just the money you earn, it is everything you buy with the money that belongs to both of you equally, including all investments, all businesses, all vehicles, real estate and lottery tickets. If it is purchased with community property money, it is also community property and will be split evenly between you. Likewise, most debt is community debt and will also be split evenly between you. There are a few exceptions and a few loopholes, so see an attorney if you have significant marital asset and/or debts.
Divorce in California: Child Support
Child support and child custody issues in California can be very divisive. Remember that the court's ultimate responsibility is to act in the best interests of the children. Unless there has been some type of domestic abuse or other extenuating circumstances, it is likely that both spouses will get parenting time with the children, whether the two of you agree to a schedule or not. It is better to agree to something that works for you, no matter how bad your personal relationship is with your spouse.
Child support is somewhat easier in California. The Family Court relies on a computer model to figure out the amount of child support that should be awarded according to California child support guidelines. The model takes into account many factors, but the big three are the number of children, the amount of time the kids spend with each parent, and the parents' incomes.
Each parent has a legal obligation to provide financial support for minor children through the age of 18, or 19 if still in high school and living at home. Usually the parent who takes care of the children more time will receive the child support, and the other parent will pay it. That's because the court presumes that when children live mostly at one parent's house, that parent contributes directly to their care.
But remember that child support is not set in stone. After an initial child support award is made, either parent can request a modification of the amount of child support if circumstances have changed. The types of changes that usually trigger a need for a modification include a parent losing a job, making less or more money, children's needs changing (for instance, requiring medical care), or one parent starts a new family and now has more dependents.
If any of these things happen, or if any other significant change of circumstance occurs, you should immediately bring it to the court's attention. File a motion to modify child support and get a hearing date. If you are the person paying child support, remember that you will owe the amount ordered unless and until the court enters a new order, and the new order will likely not be retroactive to a point earlier than the day you filed your child support modification papers.
Spousal Support in California in a Divorce
Spousal support is also called alimony. These days, spousal support is usually a short-term assistance that will help the lower-earning spouse to prepare to enter the job market and earn a better living. In marriages that lasted 10 years or less, the support is usually awarded for a period of time equal to half of the length of the marriage. For example, if you were married for six years, the court would likely award spousal support for three years if one spouse was earning significantly less than the other and wanted to prepare for a better job.
In "long duration" marriages, those that lasted more than 10 years, the court does not put an automatic ending time on the spousal support. It continues until the court determines that the lesser earning spouse is able to earn an adequate living for herself. In some cases of extremely long marriages, the spouse may never reach the point where she can support herself, and spousal support may continue through her lifetime.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.