Divorce in California (The Basics)

What grounds are there for divorce?

There are two grounds for divorce in California: 1) irreconcilable differences and 2) incurable insanity.  California is a no-fault state—meaning that judges don’t care who cheated on who or why you are splitting up.  They just need to know that one of the spouses thinks the marriage is totally broken and can’t be fixed.

Are there any other requirements?

In order to get a divorce in California, at least one spouse must have lived in California for at least six months and been in one specific county in California for at least three months.

Are there ground rules?

Once one spouse files, there are automatic temporary restraining orders that prevent each spouse from doing certain things.  Neither are allowed to take any children out of state without permission from the other spouse, neither can cancel insurance policies already in place, neither can sell off community property, etc.

Do I need a Lawyer?

Maybe.  Married persons can represent themselves.  The divorce, custody, and support process is filled with forms and pitfalls.  People facing divorce are already stressed.  Many divorcing spouses also face a power imbalance in the relationship—and having a lawyer can help counter that power-imbalance.

Some divorcing persons choose to get a lawyer, some choose collaboration, some choose limited capacity attorney representation (where the lawyer acts like a consultant), some go it on their own.

Are there other options?

Legal separation can be an alternative to divorce, especially for couples that have religious, insurance or tax reasons to avoid divorce.  Legal separation can do many of the things that divorce does, while technically preserving the marriage.  Annulment is when a marriage is declared to have never existed in the first place.  Annulments are very difficult to get in California and are usually only granted in cases of fraud or deceipt.

Isn’t there a simpler process?

Yes, but you probably don’t qualify for it.  Summary dissolution is a simple divorce process, but there are a number of requirements:

  • 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 debt does not exceed $4,000, except for an auto loan.
  • Both of you waive spousal support.

 

How do I file?

You can obtain the proper forms on the state’s website (courts.ca.gov).  Your lawyer, mediator or you need to file a petition and summons.  After filing these papers with the county court clerk, you have someone else who is qualified serve these papers on your spouse.

What happens after I file?

It depends.  Some of the following might happen:

  • Discovery and Disclosures: there are a number of disclosures that have to be made (like the FL-150).  Sometimes spouses might initiate additional discovery because they don’t know where the other spouse put money, how much they make, or what debts they have.
  • Temporary Orders (Order to Show Cause Hearings): one spouse may ask for a hearing so in the meantime the judge can determine temporary child custody, visitation, support, attorney fees, or a restraining order.
  • Agreement: you and your spouse may settle the case and come to an agreement.
  • Trial:  if you and your spouse can’t come to an agreement there may be a trial and the judge will make the decision.
  • Default:  if your spouse doesn’t respond within 30 days, you may request a default and take steps towards getting a judgment.  Be aware that getting a procedural default isn’t the final word—and this can be overturned if the other spouse “wakes-up” and files something.

Who gets what?

California is a community property state, so any property acquired during the marriage belongs to each spouse equally—each spouse owns half.  Some property is separate property, such as property acquired before the marriage, any inheritance, and any gifts.  Divorcing couples split up community property by agreement or at trial.

What’s the difference between spousal support and alimony?

California calls alimony spousal support, there is no real difference.  Temporary spousal support is determined using a computer program, while permanent support is determined by a judge who looks at a number of factors.  Spousal support generally lasts half the length of the marriage, unless the marriage was longer than 10 years.  If the marriage was longer than 10 years, then support may last indefinitely—with a duty to become self-supporting as best as one can.

Who gets the kids?

Parents can come to an agreement, otherwise it will be determined by the court.  The custody issue will first go to a mediator, then if an agreement can still not be reached—it goes to the court along with the mediator’s recommendation.

 

The Law Office of Gary W. Norris, APC handles divorce, support, custody, adoption, and other family law matters in the Ventura County area.

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