The following article are some of the more common questions that clients ask when contemplating a California divorce. Please remember, the California divorce process becomes more difficult when you are dealing with a stubborn or abusive spouse, or are trying to protect innocent chidren.
The Law Offices of Edward Misleh, APC is a Sacramento law firm, located in Sacramento, California that practices California family law and California divorce law. We represent clients in Sacramento, California and in Northern California with services they need and deserve when addressing California divorce, child custody, spousal support, child support and community property. Call now our Lawyer Hotline. We offer a free consultation to all new clients. Call now 916-443-1267 for your free consultation.
Your California divorce begins when you file a petition for a dissolution of marriage in the superior court located in the county where you live.
Grounds for a California Divorce
In California, there are two grounds for divorce – irreconcilable differences and incurable insanity (requires medical proof that one spouse is incurably insane).
Residency Requirements for California Divorce
You or your spouse must have lived in California for six months and in your county where you file for three months before the date of filing for divorce.
Automatic Restraining Orders During a California Divorce
There are temporary restraining orders that go into effect automatically when the divorce process begins, which includes;
- Neither spouse is allowed to take your minor children out of state without the other spouse’s written permission or a court order.
- Neither spouse is allowed to cancel or change the beneficiaries on your insurance policies or transfer property.
- Either spouse is required to notify the other before any out-of-the-ordinary spending—and be prepared to account for such expenditures to a judge.
California Legal Separation
You remain “married” but are no longer part of a “community.” This is often done for religious, insurance, or tax purposes. A court will divide your property and issue orders relating to child custody, visitation, child support and spousal support, and, if necessary, a restraining order. There is no residency requirement to file for legal separation. You can get a legal separation without having lived in California for six months or your county for three months before filing.
This is a court ruling that your marriage never existed. You may be able to get an annulment if you married when you were a minor without the consent of your parents or guardian, or if there was fraud or deceit.
Simplified California Divorce
California has a process called summary dissolution which is much simpler and less complicated method to obtain a divorce. You may be eligible for this process if:
- You and your spouse have agreed in writing to a division of your assets and debts.
- You have been married for five years or less.
- You have no children from the relationship.
- Neither of you own a home or other real estate.
- The value of all community property amounts to less than $25,000, excluding automobiles.
- The value of either party’s separate property amounts to less than $25,000, excluding automobiles.
- Your combined debts do not exceed $4,000, except for an auto loan.
- Neither spouse is requesting spousal support.
California Divorce Final Judgment
Your California divorce will be final when the court issues a judgment which will be at least six months after your spouse was served with the petition for dissolution. The court does not automatically end your marriage when the six months have passed. You cannot legally remarry until you obtain a judgment even if the six months have passed.
Obtaining Financial Information During a California Divorce
During your California divorce, if your spouse is withholding information about your property or finances, we can take their deposition, request answers to written questions, or conduct an Inspection Demand (a request that your spouse disclose and release important documents).
Dividing Property in a California Divorce
In a California divorce, all community property is divided equally unless you and your spouse agree to an unequal division. Community property is all property that you and your spouse acquired, through labor or skill, during the marriage. This includes interests in pension, profit-sharing benefits, stock options, other retirement benefits, and any business owned by one or both of you. Each spouse owns half of the community property. This is true even if the property is in only one spouse’s name.
Debt Liability During a California Divorce
In a California divorce, both spouses are responsible for community debts, debts incurred during the marriage. The only exception being, student loans. Division of debts can be done by an agreement entered into by you and your spouse or, if you and your spouse cannot agree, by the court.
California Separate Property
Separate property is property acquired before your marriage (including rents or profits received from these items); property received after the date of your separation with your separate earnings; inheritances that were received either before or during the marriage; and, gifts to you alone, not you and your spouse. Separate property is not divided and belongs solely to the spouse who owns the property. Problems can arise when separate property has been mixed with community property. When this occurs, the community acquires an interest in the separate property. However, you may be entitled to receive your separate property back even if it has been mixed. Debts incurred before your marriage or after your date of separation are considered your separate property debts.
Spousal Support in a California Divorce
In a California divorce, spousal support, also known as alimony, is money that one spouse pays to help the other spouse support themselves upon the filing for divorce. Usually, the spouse receiving such spousal support will pay federal and state income taxes on the money received. The spouse paying spousal support will be entitled to a tax deduction.
The amount of spousal support awarded is determined by considering certain factors, such as: the standard of living during the marriage; the length of the marriage; and, the age, health, earning capacity and job histories of both spouses. If the marriage lasted less than 10 years, it is unlikely that a judge will order spousal support for longer than half the length of the marriage.
Parenting Plans in a California Divorce
In a California divorce, you and your spouse can agree to a parenting plan which will state which spouse will take care of your children. Otherwise, a judge will decide on a parenting plan. Both parents are responsible for supporting their minor children. The duty to support your child often ends at age 18 but may be extend if certain conditions are met. In addition to child support, parents may be required to pay other expenses related to their children care, such as child care, medical care and/or travel between households.
The amount of child support to be paid by one parent to the other is based on computer-generated established guidelines. Significant factors in determining child support include each parent’s income and the amount of custodial time each parent has with their children.
Child support is not reported as income for federal and state tax purposes. The parent paying child support is not entitled to a tax deduction.
You may request a wage assignment order with your child support order. This is an order that requires a parent’s employer to take child support payments directly from the parent’s wages.
Child Custody in a California Divorce
In a California divorce, if you and the other parent are unable to agree on custody or visitation, you will be required to appear in court for a judge to decide on a parenting plan. Before any hearing or trial involving child custody or visitation, both parents are required to meet with a trained counselor who will try to help you reach an agreement on custody and a parenting plan. In some counties, counselors are able to submit a recommendation to the judge even if you and your spouse did not reach an agreement. In other counties, meetings with the counselors are entirely confidential and the counselor can only report agreements reached by the parents.
Depending on the nature of the custody dispute, the judge may order a psychological evaluation of one or both parents, and may appoint an attorney to represent the children.
Child Custody and Visitation
The judge may give custody to one or both parents, or, in some cases, to another adult based on the best interests of the child. Considerations include the child’s health, safety and welfare, as well as any history of abuse by one parent. For custody to be awarded to someone other than a parent, however, the judge would have to believe that giving custody to either parent would be detrimental or harmful to the children.
Types of Child Custody
- Joint legal custody means that both parents share the right and responsibility to make important decisions about their children’s health, education and welfare.
- Sole legal custody means that one parent has the right to make decisions related to the health, education and welfare of the children.
- Joint physical custody means that the children spend time living with each parent on a regular basis. This does not mean, however, that the children must spend equal amounts of time with each parent.
- Sole physical custody means that the children live with one parent and the other parent has visitation.
The judge must consider what the child wants if the child is “of sufficient age and capacity to reason.” Children age 14 and older are also entitled, if they desire, to express an opinion about custody issues to the court. In either case, however, the judge is not required to follow the child’s wishes.
Starting Your California Divorce
Before Starting Your California Divorce, be aware that there is a six month waiting period for a divorce to be finalized. This waiting period allows for the possibility that couples may reconcile before divorcing. If one spouse passes away after filing for divorce, but before the final judgment is entered by the court, the case is dismissed. While one spouse becomes a decedent, the other spouse becomes a widow or widower. Put simply, you cannot obtain a divorce from someone who is deceased. In California, you will be considered legally married when the estate is distributed.
A proceeding for dissolution of marriage or for legal separation of the parties is commenced by filing a petition. In the petition, you will state certain facts: the date of marriage, the date of separation, the number of years from marriage to separation, the number of children of the marriage, and the age and birth date of each minor child of the marriage.
If no response is filed and you are not making a demand for money, property, costs, or attorney’s fees in the petition, the judgment of dissolution of marriage ca be entered by default. In that case, you do not need to file an income and expense declaration or property declarations for the Court to distribute community property.
Before Starting Your California Divorce, you should consider hiring a licensed attorney that can help you from start to finish. You can call the number listed below to schedule for a free in-office consultation.
Filing the Petition and Summons
Before filing, you must review the information in the Petition and Summons carefully, as this will begin the divorce process and let the Court (and the other party) know your intentions. The information entered on the initial paperwork will let the Court know the basic facts regarding your marriage. You will enter information such as the length of the marriage, children of the marriage, and whether or not you will be requesting child support or spousal support.
A copy of the petition, together with a copy of a summons, needs to be served upon the other party to the marriage. It is important to note that you can not personally serve your own divorce papers. Service must be completed by someone other than yourself.
There are a number of divorce forms that many be needed when filing for a dissolution of marriage in California. The divorce forms you will need depends on the length of marriage, whether or not if you have children, and the amount of community property you have accumulated.
Initial Divorce Forms
The initial divorce form used is by the “Petitioner” who files a Petition in the Superior Court for dissolution of the marriage. In this divorce form, the Petitioner asks the court to dissolve the marriage and to deal with any issues between the parties arising out of the marital relationship such as child custody, child support, spousal support, property division, debt division, payment of attorney fees and court costs, etc. How your case is subsequently handled depends on what your spouse does. Your spouse, who is now known as the “Respondent,” can either not file a Response to the Petition, cooperate to settle the case by way of agreement or, can file a Response and contests the issues in the case.
Click on the following link to read further instructions for filing divorce forms in California:
File Download (PDF File): How to Use
California Divorce Petition
To file for divorce of a marriage in California you must file a California divorce petition. To qualify for the filing of a divorce, either you or your spouse must have lived in California for 6 months prior to the date of filing and in the county where you are filing your case for at least 3 months prior to the date of filing. If you do not meet these requirements, you can file for legal separation, then file an amended California divorce petition in the county in which you live once their residency requirements are met.
The filing of a California divorce petition begins your divorce proceeding after which you must address any other issues which may be affected by your divorce, such as: child custody, child support, spousal support, division of community property, and attorney fees.
Click on the following link to download a free copy of a California Divorce Petition that is used in all California courts.
File Download (PDF File): fl100 – marriage petition
In California, the divorce process begins when one spouse decides they want to get a divorce and files a Petition with a Superior Court in the State of California. In Sacramento you will file your Petition at the William R. Ridgeway Family Relations Courthouse. The spouse who files a Petition to begin the divorce process is the “Petitioner.” Once filed, the Petitioner must “serve” the other spouse with copies of the divorce paperwork. The spouse served with the petition is called the Respondent. The Respondent has 30 days to file a Response to the Petition. The Response is notice to the Court that the Respondent wishes to participate in the divorce proceedings.
Respondent Does Not Respond
Should the Respondent fail to file a Response, the divorce process will continue without the Respondent’s participation. The Petitioner can then prepare a default judgment. In the judgment package, the Petitioner can request court orders for child custody, child visitation, child support, spousal support, attorney fees, and the division of all marital property. The divorce process ends and becomes final 6 months and one day after the Respondent is served.
Respondent Does Respond
If the Respondent files a Response to the Petition, both spouses will then be required to exchange financial information about their respective incomes and property; property includes any interest in any real property, investment, or any other financial transaction.
Request for Order
If one or both of the parties need the Court to make orders before trial, either can file a Request for Order. This is often done to establish temporary child custody, child visitation, child support, spousal support, attorney fees, or to obtain a temporary restraining order. Both parties will be required to appear in court to explain their position.
Mandatory Settlement Conference
This is the pre-trial meeting at which both parties are ordered to appear with their attorneys. At this meeting the parties will attempt to settle as many issues as possible before the trial. A Marital Settlement Agreement is drafted if the parties be able to settle the entire case. If not, all unresolved issues will be set for trial.
At trial, each party’s attorney presents their arguments and offers evidence to support those arguments. At the conclusion, the judge will makes orders on all unresolved issues. The judgment is prepared and approved by the divorce attorneys and then submitted to the court for the judge to sign.
Even after the court signs the judgment, some orders can be modified. Modifications are usually requested for child support, custody, visitation, and spousal support.
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