Your Guide to
Getting Divorced in California
Getting a divorce can be a stressful ordeal, but having the right California divorce attorney by your side to guide you through each step makes the process easier. The divorce officially begins when either party files and serves a divorce petition with family court. This petition includes information about assets, children, the grounds for filing, as well as requests for child and/or spousal support. Once one party has filed a petition and opened an active divorce matter, either side can request temporary court orders for child custody, visitation, support, attorney fees, and a number of other issues. If a motion is filed requesting temporary orders, the parties will attend a hearing where the judge will decide whether these requests are granted. In addition, once the petition is filed, the parties can engage in the discovery process in which they exchange information relevant to the divorce. Finally, the process concludes with settlement negotiations or a trial.
Every case is different. In some instances, the parties already know the terms they want to settle on before the case is even filed and jump right to finalizing an agreement after filing for divorce. In other cases, discovery is issued immediately after filing so that one or both parties can get more information for temporary requests. It is important for you and your family law attorney to come up with a comprehensive case management plan that is right for your budget and your family.
What Makes California’s Divorce Laws Unique?
Each state has its own laws governing the divorce process. If you are planning to get a divorce in California, the family law attorneys at Cage & Miles can help you better understand the ins and outs of California divorce laws and California Family Code. For instance, did you know that there is a mandatory six-month “cooling off” period after filing for divorce before the court will terminate marital status? It’s also important to note that California is a community property, no-fault state. It also offers summary dissolution, which can be a simplified divorce option. Read on to discover some important details about how divorces are handled in California, especially when it comes to matters like property division, grounds for divorce, and California child support.
Legal separation is an alternative to divorce. You can pursue a legal separation if you are not sure divorce is right for you. Some people also choose legal separation instead of divorce for religious reasons. It can also be a precursor to divorce if you feel you need to test the waters before fully dissolving your marriage.
Spouses who are legally separated are still married in the eyes of the law. The legal separation process provides court oversight for couples who want to live apart temporarily or permanently. Legally separated couples can benefit from enforceable court orders for asset division, spousal support, child custody, and child support. Meanwhile, they can also still benefit from one another’s marital benefits like life and health insurance. Legally separated couples may also file joint tax returns. Grounds for legal separation can be based on irreconcilable differences or incurable insanity.
Alternatively, couples seeking a divorce in California can pursue a summary dissolution if they wish to avoid the lengthy divorce process. Note, however, that summary dissolution is reserved for less complicated cases and not all couples will qualify for the legal procedure. This “fast-track” divorce is only available to couples who have been married fewer than five years, have no children together, have a modest amount of shared assets and debts, and several other conditions.
Legal separation: The process of filing for legal separation is quite similar to the process of filing for divorce. However, you will still be married after the proceedings are completed. You will benefit from court oversight regarding asset division, spousal support, child custody, and child support while living apart. Pursuing a legal separation is not the answer for couples who just want to “fast track” the process. A legal separation requires all the same court forms, disclosures, and procedures as a divorce. However, if you would like to seek a divorce at a later date, you will need to file a new petition and start the process over again.
Date of separation (DOS): This refers to the date when either partner takes action to indicate that the relationship is over (E.g., one party moves out of the shared home). You are not legally separated or divorced until court proceedings are complete, but this date is significant as it relates to community property.
Divorce vs. legal separation: When you are divorced, you are no longer married. On the other hand, when you are legally separated, you are still married while living apart. Legally separated couples can reunite without taking legal action while divorced couples would have to get married again.
Marital debts: This refers to any debt acquired by either or both parties during the marriage (from the date of marriage to the date of separation). Each spouse is responsible for one half of the debt because California is a community property state. As a general rule, all assets and debts acquired during the marriage will be divided equally.
Mandatory waiting period: Even if you reach a settlement quickly, California does not allow divorces to be completed in less than six months. A judge cannot finalize your divorce until at least six months have passed from the date of filing and service of the petition. You can, however, complete your settlement agreement and file it with the court at any time. You will have enforceable support and custody orders, but your marital status will not be terminated until that six month mark. The Judgment will have a file stamp for that future date when it is returned to you. If you need to be divorced prior to the end of a particular calendar year, consider the timing of your filing. Make sure you reach out to an attorney in the first half of the year.
Division of assets: The couple or the court must decide how all property will be split. This can become especially complicated in high net worth divorces, cases involving separate property claims, or divorces involving executive compensation packages.
Bifurcation of marital status: Bifurcation gives the court leeway to dissolve the marriage before complex financial issues or other contentions are resolved by essentially separating the issue of “marital status” from the others. Bifurcation proceedings can be complex depending on the facts of the case and assets of the parties. Issues such as retirement accounts, pensions, military benefits, health insurance, and other rights married people have under the law must be considered.
Automatic Temporary Restraining Orders (ATROs): These orders go into effect as to the petitioner as soon as a petition for divorce or legal separation is filed and as to the respondent as soon as the petition is served. Among other things, they forbid either party from meddling with community property or leaving the state with minor children.
Summary dissolution: This is a simplified—and usually faster—version of the divorce process that can sometimes be utilized in less complex cases.
Prenuptial agreements, also referred to as “prenups” or “premarital agreements,” are contracts that engaged couples can use to protect their financial interests in case of divorce. While this may sound unromantic, it’s a pragmatic way to make sure you’re communicating clearly about money and staying on the same page as you enter into your life together.
If the marriage does not last, having a prenuptial agreement in place can make the divorce process much easier, because both parties will have already agreed to certain aspects of their property division in advance. Prenuptial agreements can cover a wide range of matters, but not child custody or child support; those matters are always left to the court’s authority.
Prenups are a great foundation for marriage because they represent mutual trust and understanding. They can also give you peace of mind for the future and the confidence that comes with preparation. Free from the burden of “what-ifs,” you’ll be able to focus more energy on what really matters in your marriage and relationship.
Prenuptial Agreement Benefits
Why Get a Prenup?
Premarital Agreements - Part I
Premarital Agreements - Part II
Premarital Agreements - Part III
What is a Transmutation Agreement?
Premarital agreement: In short, prenups are contracts that both parties in an intended marriage sign before the wedding, which may govern property division, spousal support, or attorney fees if the relationship is unsuccessful.
Uniform Premarital Agreement Act (UPAA): This is a law intended to promote uniformity and predictability in the ways different states interpret prenuptial agreements. It has been adopted by 28 states including California.
Transmutation agreement: This is a type of agreement spouses can make to change community property to separate property and vice versa during the marriage.
Assets: This refers to everything you and your spouse own, from the money in your bank accounts to real estate and investments. California is a community property state.
Estate planning: This refers to measures you take to arrange for how your assets and debts will be handled after your death or in case you are incapacitated. Estate plans involve wills, trusts, and much more and should be revised in case of a divorce.
Collaborative law: This is a branch of family law in which divorces are settled outside of court. It can involve divorce mediation and other means of reaching resolutions.
No-fault divorce: In California, you do not need to show that your spouse was at fault in order to file for divorce. However, marital misconduct can still impact divorce proceedings in some very limited situations. You do not require the consent or agreement of your spouse to obtain a divorce from California.
Property division: This refers to the way in which assets and debts are divided between parties during divorce proceedings.
Community property (CP): Community property includes all the assets and debts that either or both spouses acquired during the marriage except by gift, bequest, or inheritance.
Separate property (SP): Separate property refers to assets and debts each party acquired before the marriage or after the date of separation, as well as those received by way of inheritance, bequest, or gifts.
In some marriages, one spouse functions as the breadwinner so that the other can stay home and care for the household and children. In others, both spouses may work but one may earn significantly more income. Another marriage might see one spouse supporting the other financially through school so that they can go on to earn more income later. Clearly, there can be a lot of financial give and take between partners in a marriage. These situations and many others can make spousal support necessary. Spousal support refers to court-ordered payments from one former partner to another which, like child support, can be determined necessary during court proceedings. You may have also heard of spousal support referred to as “alimony.”
In California, a judge determines the amount and duration of spousal support. There are two types of spousal support: temporary spousal support and permanent spousal support. Temporary spousal support can be required from as early as the date of the petition for dissolution of marriage. The term “permanent spousal support” is a bit of a misnomer. It is not intended to refer to spousal support which must be paid forever, but simply refers to support orders made at the conclusion of the case (either at trial or in settlement) which will continue on post-judgment.
Termination of Spousal Support
New Spouse Interference
What You Need to Know About Changing a Spousal Maintenance Agreement
What Happens to Alimony & Child Support If I Get Remarried?
Spousal support: Court ordered alimony is intended to ensure that the spouse with less financial resources of his or her own can maintain the same lifestyle during and after the divorce proceedings that they enjoyed while married.
Modification: Changes to support orders can be made when life circumstances change, such as when a job is lost or new employment is acquired, during relocations, or when one partner remarries. Modifications must be memorialized in signed agreements filed with the court or requested through a post-judgment support modification motion.
Adultery: Adultery is when one spouse engages in an extramarital affair. Because California is a no-fault divorce state, infidelity cannot be a factor in family court when it comes to spousal support.
Domestic violence: Family courts will consider documented evidence of domestic violence when making alimony awards. It is against public policy in the State of California for a victim of domestic violence to pay spousal support to his or her abuser; however, the code requires documented evidence of domestic violence. A felony conviction for domestic violence will satisfy the requirement to provide documented evidence of the abuse.
Rebuttable presumption: This refers to anything that is assumed to be true until proven otherwise. For example, in criminal cases, the defendant is innocent until proven guilty. In divorce, assets obtained during the marriage are considered community property unless proven otherwise.
Wasting marital assets: It is prohibited by the Family Code to intentionally fail to protect marital assets during divorce proceedings. Some people do this in an attempt to manipulate the situation so that their spouse will receive less during property division. The consequences can be severe.
Gavron warning: In California family law, a Gavron warning is a warning to someone who receives spousal support, informing them that they are expected to become self-sufficient within a certain period of time. This warning can be issued verbally by the court or in writing and is discretionary.
Self-supporting: When someone is self-supporting, they can reasonably maintain their lifestyle, or something close to it, without financial assistance from their former partner.
Income and expense declaration (IED): This is a form that each spouse fills out as part of the financial disclosure process. It details everything that you earn and spend. The parties need to continually update this form throughout the divorce process.
One of the biggest stressors of the divorce process is going to court. The court process often makes people feel like they don’t have as much of a say as they want or need in decisions that have an enormous impact on their lives. Luckily, there’s an alternative. If both parties agree to do so, they can settle their dissolution of marriage, including property division, outside of court through a process called divorce mediation.
In mediation proceedings, a neutral, third-party sits down with the couple to help them reach agreements regarding things like property division, custody and visitation rights, child support, and alimony.
Mediation is often regarded as less expensive, less stressful, and faster than traditional divorce litigation. Many parents feel this process allows them to better protect their children. It also allows you to retain some privacy, as court proceedings become a matter of public record. Mediation also provides the opportunity to create more customized solutions than you would be able to request from the court. Overall, many people consider mediation a much more empowering approach to divorce than traditional litigation.
Mediation: Mediation is the process through which couples can settle their divorces outside of court with the guidance of a third-party mediator. Mediation is often considered faster, easier, and less expensive than traditional litigation, but it is not always possible if spouses are not willing to cooperate with one another. Mediation may also be inappropriate when there is a history of domestic violence in the marriage.
Litigation: Litigation refers to the traditional means of pursuing a divorce in family court, with an attorney representing each party (or one or both parties self-representing) and a judge making the final decisions.
Mediator: The mediator is a neutral, third-party attorney who helps the couple understand their options with regard to property division, alimony, child support, and child custody. He or she facilitates discussion to help the couple reach an agreement. Skilled mediators are trained in alternative dispute resolution.
Discovery: The discovery process is the fact-finding period between when a divorce is filed and when the case goes to court or when mediation proceedings begin. It ensures that both parties have all the information they need to move forward. Parties to a divorce case are entitled to all material facts and information regarding all assets, debts, income, and expenses of the parties. This information can be demanded via formal discovery, exchanged informally, or subpoenaed directly from separate entities.
Property division: Property division refers to the way in which the couple’s assets and debts are divided in the divorce proceeding. This is something that is addressed during mediation or litigation.
Family court services (FCS) mediation: This is a free mediation service provided by the court and is mandatory in San Diego County once a party has filed a motion with the court requesting custody or visitation orders. If the parties agree to hire a private custody mediator, they can opt out of the county mediation.
Financial neutral: A financial neutral is a third-party financial expert who can assist the parties and/or the court with issues such as income available support or a business valuation during any divorce proceeding, including a collaborative divorce. He or she does not favor either party.
Alternative dispute resolution: This phrase refers to the many ways in which disputes can be settled outside of the courtroom. It encompasses both mediation and arbitration.
Mandatory settlement conference (MSC): This is an informal meeting between the divorcing parties and a court-appointed family law attorney. In this meeting, you will discuss the issues on which you are disagreeing, which may include child custody, child support, spousal support, and property division.
Divorce may drastically change family dynamics, but it does not change either parent’s responsibilities to the children they have brought into the world together. Whenever a divorcing couple shares minor children, matters related to their children such as child custody and child support are a big part of the divorce proceedings.
Child support refers to the payments that are made from one parent to the other parent as and for the support of the minor child(ren). In California, child support payments may be ordered even if the parties share equal custody of the minor child(ren). In fact, even the primary caretaker of the minor child(ren) may be ordered to pay child support to the other parent.
Child support payments are calculated using a Guideline Child Support formula. The formula considers factors such as how much time the child spends with each parent, the earnings of the parents, tax filing status, and tax deductions. Sometimes these circumstances change, in which case child support modifications can be requested at any time including after the divorce is already finalized.
Joint Custody & Child Support in California
License Suspensions for Child Support Arrears
Can Parents Waive Child Support?
US Passport Denials for Past-Due Child Support
Paternity action: If a child was born to unmarried parents, either party may initiate a legal proceeding called a paternity action (or parentage action) to request orders of paternity, child custody and visitation, and child support.
Arrearage: Arrears refers to past due child support. In California, a parent who needs help to collect child support arrears can contact their local child support agency or a family law attorney for assistance. If you are in arrears on your child support payments, you may face wage garnishment, licensing suspension, passport denial, and other severe consequences.
Garnishment: Garnishment refers to a process through which money is taken out of your wages and applied to your child support arrearage or ongoing monthly payments.
It is a common misconception that child custody always goes to the mother or that fathers will have an uphill battle to obtain equal timeshare. This may have been the case long ago, but now the court is prohibited from making a custody determination on the basis of a parent’s gender. Judges in family court will consider a variety of variables when determining the child custody arrangement, but first and foremost they will focus on the best interests of the child. This will look different in different situations.
If the child is old enough to express an opinion about what custodial arrangement they would prefer, their wishes will be considered. Courts will also look at which parent the child is accustomed to spending more time with. They will certainly consider any record of drug use, domestic violence, or other abuse that may be associated with either parent.
Best Interests of the Child Standard in CA Child Custody Cases
When Can My Child Decide Which Parent to Live With?
Custody for Dads
How Domestic Violence Affects Child Custody in CA
Child custody: In California, the parents or the court must determine rights of both legal custody and physical custody. Legal custody is the right to make decisions regarding the health, education, religious training, and well-being of a child. In the vast majority of cases, the parents will equally share legal custody and must work together to make decisions for their child(ren). Physical custody refers to the time the child(ren) spend with either parent. There is an infinite number of parenting plans that can be ordered by the court or agreed to by the parents.
Joint custody: Joint custody refers to shared custody between both parents. As discussed above, the vast majority of parents will share joint legal custody. The schedules for joint physical custody can vary depending on the best interests of the child, the schedules of the parents, and the distance between households.
Visitation / supervised visitation: Visitation, also called “parenting time” in California, refers to time that a noncustodial parent gets to spend with their child. The court may order that visits be supervised and only occur in a public place if they believe the parent may pose a risk to the child’s emotional or physical safety and well-being.
“Best interests of the child” standard: California family courts make every effort to make decisions regarding child custody and visitation in the best interest of the child. This means they try to choose the best option for the child’s physical and emotional health and development.
Domestic violence temporary restraining order (DVTRO): This is a type of restraining order that can be requested by victims of domestic violence who need legal protection. Any recent issuance of a DVTRO will certainly be considered in family court’s child custody determination.
Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA): This is a law that gives one state jurisdiction over child custody litigation. The jurisdiction is given to the child’s “home state” (the state where the child last lived for a six-month stretch) or the state with “significant connections.” The law exists to prevent estranged parents from crossing state lines to avoid or alter child custody or child visitation agreements or orders. It has been adopted by 49 states, meaning that California family court orders are valid in almost any other state you might move to.
730 Evaluation: This is an assessment performed by a court-appointed neutral expert to assist in providing the court information regarding various issues, including custody and visitation. A 730 Custody Evaluation involves interviews with children and adults and can be used in making child custody determinations.