Divorce, Custody & More Frequently Asked Questions
A California divorce case is initiated when a Petition for Dissolution of Marriage document is filed with the Superior Court. Under current California law, a divorce cannot be finalized until at least six months and one day after your spouse or domestic partner receives the petition for divorce. Please keep in mind that each divorce is different and there can be delays if finances are more complex or if there are children involved.
In California, a divorce cannot be finalized until at least six months and one day after your spouse or domestic partner receives the Petition for Dissolution of Marriage that is filed with the court. Keep in mind that specific issues concerning property, finances and children could take considerably more time. Having a lawyer represent you can help expedite any hold ups and make sure everything is handled appropriately and fairly.
Property that was acquired or that existed during the marriage will be identified and valued, then classified as marital or separate. Property is divided based on factors such as when the property was acquired, how the property was purchased, tax agreements and the duration of the marriage. Prenuptial and premarital agreements that are in place are also considered.
If you’re considering filing for divorce in California, you certainly have questions. The state of California has specific laws that need to be followed. The best thing to do is meet with a professional lawyer with a good amount of experience handling divorces. Your divorce lawyer should be able to give you advice on handling your assets, your income and your spouse or domestic partner’s assets and income.
According to the California Family Code, each party has the right to legal representation in a divorce, legal separation or annulment proceeding. This means that one spouse may be required to pay the attorney fees of the other spouse. This can be based on factors like income, future earning capacity, assets, debts, age and health of each party, duration of the marriage, and the ability of a party to be gainfully employed without unduly interfering with the interests of the dependent children in the care of that party.
A legal separation in California is different than a divorce because it does not require any residency requirements and the date of separation takes effect without delay. Hence, a legal separation in California can be finalized quicker than the six-month minimum timeframe for divorce as there is no termination date of the marriage.
Yes. A legal separation in California begins with the filing of a Petition for Legal Separation document. The form is like the Dissolution of Marriage document; the petitioner simply checks the box for Legal Separation rather than Dissolution of Marriage at the top of the form. Once the document is filed with the county court, the other party has 30 days to file a response. Since it is a legal separation and not a divorce, there is no six-month minimum waiting period like a divorce.
Even though you’re getting a divorce, your regular monthly bills are still coming in. This can include everything from your mortgage to your phone bill, cable TV and internet, car insurance, health and life insurance and credit card statements. So, who pays? The best Rule of Thumb is to pay bills that are in your name, negotiate joint account payments if possible, and keep detailed documents of everything paid. You’ll have an opportunity to show these documents to your lawyer and to the court as a snapshot of your regular earning and spending as well as the typical division of responsibility for paying bills.
No. Spousal support is gender-neutral, so either spouse or domestic partner can request it from the other. Spousal support is determined in California through a thorough examination of your income, expenses, assets and debts. The court will review each spouse’s income and determine a final amount for spousal support, if necessary.
To have your marriage annulled in California, you must file annulment documents in the county where you live. There is no three-month residency requirement like there is for a divorce. You do not have to live in California to file in California for an annulment of a domestic partnership.
In California, child support actions usually start when the parents file for divorce. Once a request for child support is filed with the court, it is served to the other party, who has nine days to respond before a hearing is set. At the hearing, a temporary order for support may be issued following a review of each parents’ documents and hearing testimony from each party. Orders can typically be obtained within 60 days of filing for divorce, but delays can occur.
Once a California judge issues a Child Support Order, one or both parents can request a change to the order. To do so, you must show that there has been a significant “change in circumstances” since the previous Child Support Order was issued. If the parents or guardians signed a written agreement that was approved and signed by a California judge but was below the guideline amount, either party can ask to adjust the amount at any time without the need to show a change in circumstances.
A pension can be one of the most valuable assets in a marriage. Sometimes it is more valuable than a house or all the other assets put together. In general, when either spouse/partner has a pension, a lawyer’s help is likely necessary. Of course, a lawyer’s help is a good practice whenever valuable assets are at play but particularly for pensions it is almost required. Special legal rules apply that do not apply to any other type of asset and they are very technical. For example, before a judge will issue an order about how the pension will be divided, a pension plan must be ‘joined’ as a party in your divorce case. The judge will make what is called a Qualified Domestic Relations Order (QDRO) solely about how the pension will be divided and mistakes can lead to harmful results. Even people who manage to do much of the divorce leg work themselves usually have an attorney draft the QDRO.
Retirement accounts like 401(k) and IRA plans are considered community property to the extent that they were funded during the marriage with community property funds, or separate property to the extent that they were funded before the marriage with separate property funds. Accountants who have experience in this task divide the accounts along these lines with the separate property inputs and their proceeds going only to the spouse who earned it before the couple was married.
Both parties do not need to be in agreement that a marriage should end. And it does not matter who is the first to file for divorce – the court does not give any preference or advantage to the petitioning party. Either partner can file to end the marriage and the other cannot stop the process if they do not agree to proceed or refuse to participate. If one party refuses to participate, the other party can still obtain a ‘default’ judgment and the divorce can be finalized without the other party’s agreement.
Even if one partner committed adultery or harmed the other the judge will not consider that during the divorce rulings. California is a No-Fault State. Before 1970, to file for divorce, one needed grounds to do so. You needed an acceptable reason and had to support it with evidence. Proving emotional and physical abuse could be challenging, humiliating, expensive, and burdensome. Under the No-Fault concept, instead of requiring that the filing party convince a judge that the marriage is beyond repair, a party instead states that the couple has ‘irreconcilable differences’ – simply can’t get along – as the reason for the divorce.
If either spouse lived in a non-community property state at any time during the marriage, California will treat any property that would have been community property had you been living in California at the time as community property for the purpose of the California divorce.