| California Divorce Overview | | | | the other, it may award that party a higher share |
| California is a 'no-fault' divorce state, which means | | | | of the marital property. |
| that when a spouse requests a divorce, they will | | | | Prenuptial Agreements |
| not need to specify a reason or prove | | | | A written agreement made prior to a marriage |
| wrong-doing on part of the other. From time of | | | | that describes the distribution of assets should |
| initial filing, the soonest a divorce can be finalized is | | | | there be a divorce is called a prenuptial |
| 6 months. | | | | agreement. |
| No-fault does not mean no disagreements, though. | | | | Agreements made in writing by both parties |
| If you foresee that there may be disagreements | | | | regarding distribution of assets either before or |
| regarding how the family assets are going to be | | | | during the marriage will be held valid and |
| handled, or how the kids will be cared for, get | | | | enforceable by the court unless either party can |
| professional advice immediately. | | | | prove that the agreement was made under |
| Even if you both agree on how to separate your | | | | duress. |
| lives, it is important to have the agreement | | | | Child Custody |
| reviewed by a professional. An advisor who has | | | | Custody and visitation issues top the list of |
| been involved in many divorces can help you spot | | | | concerns for couples involved in a divorce. For |
| weaknesses in the agreement and will help ensure | | | | many years to come the now ex-spouses must |
| that the final agreement is strong and will last for | | | | continue to plan their lives together and negotiate |
| many, many years. | | | | the dozens of choices that come up when raising |
| Residency Requirements | | | | children. Judges will go to great lengths to get the |
| To file for divorce you must have lived in | | | | two parties to make their own decisions and |
| California for at least six months and be a | | | | solve their own conflicts. |
| resident of the county in which you file for at | | | | It is typical practice to establish one parent as |
| least three months. If the other party lives in | | | | having primary custody. That parent is referred |
| another state they have the right to demand that | | | | to as the 'custodial parent'. The other parent is |
| the case be heard in their state. And most likely | | | | referred to as the non-custodial parent. |
| they are going to request just that. Keep that in | | | | Regardless of the schedule, in most cases the |
| mind when consulting with an attorney, you will | | | | parents are required to make important child care |
| most likely need one that is located in the state in | | | | and upbringing decisions together. |
| which the case is going to be heard. | | | | In California, any couple which cannot agree on |
| Grounds for Divorce | | | | custody or a visitation schedule is obligated to |
| To obtain a divorce in California a spouse may file | | | | participate in and complete a counseling program |
| on one of two grounds: Irreconcilable differences | | | | prior to their disagreement being taken up by the |
| and incurable insanity. 'Irreconcilable differences' | | | | court. |
| basically means that the applicant believes the | | | | Judges that are forced to make custody and |
| marriage cannot be saved. | | | | visitation decisions will base their rulings on |
| Because California is a no-fault state, the party | | | | evidence provided by the spouses and by |
| filing for dissolution is not required to state why | | | | professionals, such as psychologists, family service |
| they wish a divorce and they are not required to | | | | representatives or doctors. The judge will also |
| provide any documentation regarding their | | | | take into account any history of child abuse, drug |
| reasoning. In fact, the court will not consider any | | | | or alcohol addictions and any protective orders |
| data having to do with why the divorce is being | | | | that may have been issued to help determine |
| requested or why it should be denied. The simple | | | | what is in the best interest of the child. However, |
| fact of a request for a divorce by either party is | | | | the courts in California tend to grant joint |
| considered sufficient grounds to grant it. | | | | custody, where the parents share in the day to |
| If you and your spouse have no assets or | | | | day care and in making decisions regarding |
| children, then filing for a divorce can be done with | | | | upbringing. |
| little or no professional assistance and little cost. If | | | | Based on the above factors, most spouses come |
| there are material assets or if there is any | | | | to an agreement regarding custody and visitation |
| disagreement about how the assets of the | | | | schedule for their children rather than depend |
| marriage are to be divided, or if there are kids | | | | upon a judge to decree what is best. This is an |
| involved, then professional legal assistance is very | | | | area where professional legal assistance is a must. |
| important. | | | | Child Support |
| Role of the Court | | | | Child support is paid by the non-custodial parent to |
| The court has established a process and a | | | | the custodial parent to help support the children. |
| procedure for divorce. The steps are as follows: | | | | This is normally continued until they reach the age |
| - The party that initially files for a divorce is called | | | | of 18. As with Custody, the court will support |
| the 'petitioner'. The papers they file with the court | | | | mutual agreement that the spouses may be able |
| are called a 'dissolution of marriage' or dissolution | | | | to make. |
| for short. These papers simply describe that a | | | | If the parties cannot decide upon a support |
| divorce is desired. | | | | amount and payment frequency, child support is |
| - The other party is then officially presented with | | | | set by the court and will be calculated based on |
| the dissolution documents, a process which is | | | | the California State Guidelines and on any data |
| called 'service of process'. The receiving party is | | | | that the parties may present. The State |
| referred to as the 'respondent'. The date of | | | | Guidelines are designed to be fair and equitable to |
| service establishes the start of a 6 month period | | | | the parents and more importantly, be in the best |
| which California courts require as a minimum time | | | | interest of the children. |
| to grant a divorce. | | | | You can calculate the child support amount for |
| - The respondent has 30 days from time of | | | | your case by either contacting an attorney, who |
| service to file an answer with the court. If the | | | | has access to a support calculator, or by going to |
| respondent does not file an answer, the court will | | | | the County Clerk and requesting the official forms |
| record a 'default' and simply grant the divorce | | | | upon which you can calculate the amount likely to |
| when the 6 month waiting period is complete. This | | | | be set, if left to a judge. This is vital data for you |
| is often called a 'no contest' divorce and is | | | | to have before you discuss support with your |
| common practice when there were no assets to | | | | spouse. |
| divide and no children. If you have been served | | | | Child Support Modification |
| divorce papers and if there are assets to divide | | | | California law allows either party to apply for a |
| or children involved you must take action within | | | | change in child support payments. The law |
| 30 days or you will lose important rights. | | | | requires that before a support change will be |
| - When the respondent files an answer, this starts | | | | considered by the court, a material change in the |
| the process of 'discovery' in which the parties | | | | status of the parties or the children must have |
| each have a chance to describe to the court the | | | | occurred. This can include a change in the financial |
| assets they feel should be involved in the divorce, | | | | status of either party (for better or worse) or a |
| present their wishes regarding its distribution and | | | | change in the needs of the children such as |
| also present their wishes regarding the custody of | | | | education costs or an illness. |
| the children. | | | | Spousal Support |
| - In cases where the parties can agree between | | | | Spousal support (alimony) can be established in a |
| themselves regarding the assets, their distribution | | | | prenuptial agreement, it can be mutually agreed |
| and custody of children, the time and expense of | | | | upon by the parties and presented to the court |
| a divorce is greatly reduced. If you are involved in | | | | during discovery, or if no agreement can be |
| a divorce and there are assets or children | | | | reached the court will consider the facts as |
| involved, it is important that you secure | | | | presented and award it based on the financial |
| professional help. A professional will help you | | | | status of each of the parties and the nature of |
| establish an agreement that is in your best | | | | the lifestyle enjoyed by the couple during the |
| interests and which takes into account the well | | | | marriage. |
| established standards regarding asset distribution | | | | There are several forms of spousal support. The |
| and custody. | | | | first is temporary maintenance, which is paid |
| - If the applicant and respondent do not agree | | | | during the trial or proceedings and before the |
| regarding the assets involved in the divorce, their | | | | divorce is finalized. There is rehabilitative |
| division or on custody matters, then it is up to | | | | maintenance, most often done in short marriages |
| the parties (through their attorneys) to present | | | | ( less than 10 years) where one spouse pays for |
| evidence to support their wishes and it is up to | | | | the other to complete an education or training |
| the court to make a decision based on the | | | | program. And lastly, permanent maintenance, |
| evidence presented. A contested divorce in | | | | where the court sets a support amount to be |
| California that involves modest assets can take | | | | paid on a long term basis. |
| between one and three years to resolve. | | | | In determining spousal support, fault can play a |
| Division of Property | | | | role. However, only the fault of the party seeking |
| California courts will, to the extent practicable, | | | | maintenance is considered, not the party who |
| divide "community property" equally. Community | | | | would pay. Special needs, such as a disability, are |
| property is what the couple earned (assets minus | | | | considered in determining maintenance. |
| debts) from the time of the marriage to the date | | | | The needs of one spouse and the ability of the |
| of their separation. | | | | other to pay are the primary factors in |
| Community property can be divided unequally by | | | | determining support amounts. Since most spouses |
| mutual agreement. For example, one person may | | | | work, spousal support (if necessary at all), is |
| assume all the family debt in exchange for | | | | usually for finite period of time and modest |
| another benefit such as keeping a retirement | | | | amount. Spousal support in California can continue |
| account. In rare instances, the court may find | | | | for an indefinite period, and it may be increased |
| compelling reasons to divide contested community | | | | or decreased if there is a change in either party's |
| property unequally. For example, if the court feels | | | | circumstances. |
| that one party is in need of more support that | | | | |