State of California Divorce Law Summary

What This Article Covers

This article summarizes California’s divorce law and the state courts that manage the divorce process.

The California divorce topics covered in this article include:

• Residency Requirements
• Grounds For Divorce – No-Fault 
• Community Property Laws
• Spousal Separation Laws
• How California Determines Child Custody
• How California Courts Calculate Child Support
• How California Determines Spousal Support
• The Mediation and Deliberative Divorce Process
• Changing Your Name

Introduction

California has a reputation for being a highly diverse and progressive state. California was the first state to institute a no-fault system of divorce and ranked among the top states for legalizing same-sex marriages.

Contrary to popular belief that divorce is rampant in California, according to Census.gov, the divorce rate has steadily decreased since 2014. As of 2021, it was 8.9% and continues to decline.

The following is a summary of what you should know about the California divorce process if you are considering ending your marriage.

RESIDENCY REQUIREMENTS IN CALIFORNIA

California has specific residency requirements before you can legally file for divorce. Both forms of residency are required to ensure that the court has state and county jurisdiction over the divorce proceedings:

• State Residency: At least one of the spouses must have lived in California as a resident for at least six months (180 days) before filing for divorce.
• County Residency: At least one of the spouses must have been a resident of the county where the divorce is being filed for at least three months (90 days) before filing.

LEGAL GROUNDS FOR DIVORCE IN CALIFORNIA- NO-FAULT

There was a time in California when a spouse had to prove that the other spouse was at fault for the breakdown of the marriage before the court would grant a divorce.

California’s Family Law Act of 1969 made the state the first in the nation to allow no-fault divorce – meaning a spouse could be granted a divorce without having to prove fault.

Today, most dissolutions in California are based on the no-fault system. Dissolution of the marriage or legal separation may be based on either of the following grounds: (a) Irreconcilable differences, which have caused the irremediable breakdown of the marriage; or (b) Incurable insanity, which must be proved. 

California, like most states, can still factor in the respective parties’ past behavior when determining the division of community property, child custody, and spousal support.  

California Waiting Period: California has a 6-month mandatory waiting period for divorce. This period begins from the date the spouse is served with the divorce papers or the date of the responding spouse’s first appearance in court, whichever comes first. This waiting period is intended to give both parties time to reconsider and potentially reconcile before the divorce is finalized

Legal Separation In California

Legal separation in California offers an alternative to divorce for couples who wish to live apart but remain legally married. It addresses key issues such as child custody, support, and property division, and can be a flexible solution for those with specific personal, religious, or financial reasons for avoiding divorce.

Primary Issues Governing Legal Separation

Legal separation does not end a marriage. It allows couples to live apart and resolve issues such as property division, child custody, and support. Unlike divorce, legal separation does not permit remarriage.

• Grounds for Legal Separation: There is no requirement to prove fault or wrongdoing.
• Residency Requirements: There are no residency requirements for legal separation.
• Filing Process: Requires one spouse to file a petition for legal separation. The other spouse must be served with the petition.
• Temporary Orders: Either spouse can request temporary orders for child custody, support, spousal support, and use of property while the legal separation is pending.
• Child Custody and Support: Courts determine child custody and support based on the best interests of the child.
• Spousal Support: Courts can order spousal support based on factors such as the length of the marriage, each spouse’s financial situation, and standard of living during the marriage.
• Property Division: Community property laws apply. Marital assets and debts are divided equally.
• Converting Legal Separation to Divorce: Either spouse can request to convert a legal separation to a divorce. If both parties agree, the court can change the status without starting a new case.

CALIFORNIA’S MEDIATION OR COUNSELING REQUIREMENT

Mediation is generally voluntary, though some courts may require it for certain issues, particularly child custody and visitation disputes.

California supports both conventional mediation and the collaborative divorce process in resolving disputes and settling cases.

Mediation Should Always Be Considered: While there is not a single state-sponsored California divorce mediation program, mediation is widely encouraged and often facilitated through various means, including private mediators, court-sponsored programs, and community-based services. Mediation has proven to reduce the adversarial nature of divorce and enable the parties to customize a divorce settlement agreement that fits within the needs of the parties. Finally, mediation has been proven to resolve disputes quickly and is almost always less costly than litigating your case in divorce court.

PROPERTY DIVISION IN CALIFORNIA

California is a community property state. Except as otherwise provided by statute, all property (wherever situated) acquired during the marriage while domiciled in this state is community property.

Except upon the parties’ written agreement, or on oral stipulation of the parties in open court, the court shall divide the parties’ community property equally. Separate property is not included in the division of the community estate. 

Separate property of a married person includes all of the following:

(1) All property owned by the person before marriage.

(2) All property acquired by the person after marriage by gift, bequest, devise, or descent.

Owner of Separate Property Retains Control: A married person may convey their separate property without the consent of that person’s spouse

Video on prenups and no-fault divorce in California:

SPOUSAL SUPPORT IN CALIFORNIA

Factors Considered for Spousal Support

California courts consider several factors when determining the amount and duration of spousal support, including:

• Length of the Marriage: Generally, the longer the marriage, the longer the duration of spousal support. Marriages lasting ten years or more are considered “long-term,” and support may be awarded for a longer duration.
• Standard of Living: In California, the standard of living established during the marriage is a major factor. The goal is to allow both parties to maintain a similar lifestyle post-divorce.
• Earning Capacity: The court examines both spouses’ earning capacity, including their marketable skills, job market conditions, and any periods of unemployment during the marriage.
• Contributions to the Marriage: Contributions as homemakers, career sacrifices, and support provided to the other spouse’s education or career advancement are considered.
• Age and Health of Spouses: The age and health of both spouses can impact the support decision, especially if one spouse has health issues that affect their ability to work.
• Financial Needs and Obligations: California Family Law Court looks at both parties’ financial needs and obligations, including debts and expenses.
• History of Domestic Abuse: A history of domestic abuse will likely influence the court’s decision regarding spousal support.

SPOUSE’S LEGAL NAME-CHANGE IN CALIFORNIA

In a proceeding for dissolution of marriage or an annulment, but not in a proceeding for the legal separation of the parties, the court, upon the request of a party, shall restore the birth name or former name of that party, regardless of whether or not a demand for restoration of the name was included in the petition. For more information on the name change process.

CHILD CUSTODY IN CALIFORNIA

Either parent may be awarded custody. There is neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, allowing the court and the family the broadest discretion to choose a parenting plan in the child’s best interest.

In deciding on the best interest of the child when determining custody, the court shall consider all of the following:

• Any history of abuse by one parent or any other person seeking custody against any of the following:
• Any child to whom they are related by blood or affinity or with whom they have had a caretaking relationship, no matter how temporary.
• The other parent.
• A parent, current spouse, or cohabitant of the parent or person seeking custody or a person with whom the parent or person seeking custody has a dating or engagement relationship.
• The habitual or continual illegal use of controlled substances or regular or continual alcohol abuse by either parent.

CHILD SUPPORT IN CALIFORNIA

Both parents of a minor child have an equal responsibility to support their child in a manner suitable to the child’s circumstances. The child support duty continues until the child completes the 12th grade or attains the age of 19 years, whichever occurs first.

Both parents have an equal responsibility to maintain, to the extent of their ability, a child of whatever age who is incapacitated from earning a living and without sufficient means.

The right of a child to support may not be adversely affected by a premarital agreement.

Any provision regarding spousal support, including but not limited to a waiver of it, is not enforceable if independent counsel did not represent the party against whom enforcement of the spousal support provision is sought at the time the agreement was signed or if the provision regarding spousal support is unconscionable at the time of enforcement

Official California Child Support Calculator

The California Child Support Calculator is based on the same child support legal guidelines used in California courts and can be used to estimate the amount of child support that may be ordered in your case.

Video On 2024 Changes To Child Support Calculations -Divorce Financial Planning

Divorce Is Bad For Your Health. Divorce is one of the most stressful and challenging experiences a person can go through. But did you know going through a divorce could take years off your life? Divorce not only has legal and financial consequences, it can lead to an increased risk of early death. According to the C.D.C., the mortality rate for those who divorce is 1,363 per 100,000 compared with 779 per 100,000 for married couples. Men have an increased risk of early death, with a mortality rate of 1,772 per 100,000, when compared to divorced women, who have a mortality rate of 1,095 per 100,000 (Centers for Disease Control and Prevention. Mortality Among Adults Aged 25 and Over by Marital Status: United States, 2010–2017)

CONSULT WITH A LOCAL DIVORCE LAWYER

Please remember that the above summary is a general overview of California divorce law. Divorce laws are subject to amendment, and specific cases will often vary depending on their facts and the specific legal issues presented. Therefore, for the most up-to-date advice, it’s always best to consult with a California family law attorney as soon as possible.

SOURCES

State of California Family Code

State of California Divorce Law

California Department-Child Services

Cornell Legal Information Institute 

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