No Fault Divorce
California is a “no fault” divorce state. That means that if one spouse wants to terminate the marriage, the other spouse cannot prevent him or her from doing so. It also means that when a judge decides the underlying issues, his or her determination will not be based on who s/he believes to have caused the break-up, or, put differently, whose conduct the judge believes to have been more culpable. In other words, a California judge will not consider issues such as infidelity or undesirable behavior in the final judgment. This also means that absent certain exceptions, the marital estate, or the property that has been purchased, accumulated or improved during the marriage, will be divided equally, irrespective of fault.
1. Grounds for a California Divorce
A. Irreconcilable differences, Incurable insanity
There are two grounds for divorce in California. These are irreconcilable differences and incurable insanity. Incurable insanity is a medical condition that must be substantiated by a doctor, because this condition is difficult to prove. Hence, very few California divorces are based on incurable insanity. Accordingly, the most common ground for dissolution of marriage in California is irreconcilable differences. Therefore, since California divorces are not based on fault, a court will not inquire into the reasons why one party wants a divorce.
B. Residency Requirements
a. Six months in the state of California; Three months in a California county
In order to file for dissolution of marriage in California, a party must have resided in the State for a minimum of six (6) months, and in the same California county for a minimum of three (3) months. People who don’t met this requirement, are not eligible to file for divorce in California.
b. Legal Separation- an alternative when residency requirements are not met.
Depending upon the circumstances, a party may opt to file for legal separation until s/he meets the California residency requirement. When parties are legally separated, their property is divided and support issues are determined. Also, property acquired by either party, after they’ve been legally separated, will not be classified as community property. It will be the separate property of the acquiring spouse. However, the parties will continue to remain legally married until the marriage is dissolved. In other words, the marital status will not be changed. Since the marital status is not terminated, most parties prefer to wait until they meet the California residency requirements, so that they can file for dissolution of marriage. However, if a party elects to file for legal separation, the action may be converted into a dissolution action once the residency requirements are met.
Legal separation is a viable option for clients who anticipate that they will have to leave the state, or the country, for an extended period of time.
Division of Assets
California is a Community Property State. That means that, absent certain exceptions, all property that is acquired or improved during marriage will be divided equally amongst the parties when the marriage is dissolved. Property that was inherited or acquired before marriage, will continue to be the separate property of the acquiring spouse. However, the community may be entitled to a credit for value enhancing improvements that were made to a to a spouses separate property while the parties were married. The rules regarding property division, and the exceptions thereto, can get complicated. Therefore, it is best to retain an attorney who is experienced in property valuation in order to guide you through this process, and to get you the best deal possible under existing law. Division of property can affect your rights in real estate, stock plans, retirement benefits, business ownership interests, and other investments.
Settlement vs. Litigation
Divorce can be an emotionally draining time for all concerned. It is often said that people going through a divorce are good people who are at their worst. This can also be a financially draining time for the parties. Thus, it is always in everyone’s best interest to try and negotiate an agreement with regards to major issues such as custody, support, and division of property. If the parties can settle most of the major issues, they can save a great deal of money and emotional energy. They also maintain control over the matter, which is usually better than leaving the final decision to an outsider, such as a judge.
In some instances, I have been able to settle all of the issues without proceeding to trial. In fact, if the parties are able to reach an agreement, the divorced can be finalized simply by filing the required paperwork. The parties may never even need to go to court. In situations where the parties are unable to reach a settlement, I use my litigation skills and experience to vigorously represent my clients at trial.
Spousal Support
In addition to Child Support, a California court may order that one spouse pay support to the other, both during the dissolution proceeding in order to maintain the status quo, and after the final judgment of dissolution has been entered. The duration of court ordered spousal support will depend upon the length of the marriage. Generally, if the parties have been married for less than ten (10) years, support will be ordered for one-half (½) the length of the marriage. If the parties have been married for more than ten (10) years, the court has jurisdiction to order support until the payee spouse either re-marries or dies.
Spousal support is governed by Family Code section 4320. Thus, when ordering permanent support, a judge will look at the factors set forth in that section. These include, the standard of living during marriage, the income of both parties, the length of the marriage, the age of the parties, their health, their earning capacity, education, job skills, their assets and liabilities, and the ability of the non-earner spouse to obtain the skills necessary to become self-sufficient.
As in situations involving child support, the calculation of the amount of spousal support is determined by the dissomaster, which is a computer program used by attorneys to calculate support payments based on California guidelines. However, unlike child support, the parties may agree amongst themselves to waive spousal support.
The internal revenue code provides that spousal support payments are taxable as ordinary income of the payee spouse, and are deductible by the payor spouse. Payments made in the absence of court orders are deemed to be gifts. Thus, in order to take advantage of the tax benefits set forth in the code, it is important for the parties to have enforceable court orders in place.
Domestic Violence
A party who has been found to have engaged in domestic violence is presumed to be an unfit parent. A party who is a victim of domestic violence should seek intervention from the police and the courts. The police department has the authority to arrest and remove the abuser, and to issue an emergency protective order. A court has the authority to issue a temporary restraining order, and to order the offending party out of the home, pending a hearing on a permanent injunction.
On the other hand, a party who believes that s/he has been wrongfully accused of domestic violence should seek the advice of an experienced litigator who can protect his or her custody rights. It is not uncommon for one parent to make false allegations of domestic violence in order to gain leverage in a family law proceeding.
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