Filing for Divorce in California

Filing for Divorce in California

1. What are the residency requirements for filing for divorce in California?

To file for a divorce in California, at least one of you must be a resident of the state for the six months prior to filing. What county you live in also makes a difference. At least one of you must have been a resident of the county where you file a petition during the three months leading up to filing.

2. Does California have a waiting period?

The court will not grant you a divorce in California until at least six months after you have properly served the petition on the other side.

3. Does the state have grounds for divorce?

California is a no-fault state. There are just two grounds for divorce.

  • Irreconcilable differences that have caused the breakdown of your marriage — meaning the court finds substantial reasons you shouldn’t stay married
  • Incurable insanity, which requires proof, including medical or psychiatric testimony that your spouse was incurably insane at the time the petition was filed and remains incurably insane.

4. How does California determine the division of property?

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You and your spouse are encouraged to come up with a settlement on your own and present it to the court. If you can’t agree, the court will divide your property for you. Any property you acquired during your marriage is considered community property unless you can provide a deed or other documentation showing that the property is separate, or you and your spouse have a written agreement stating that the property is separate. Retirement benefits are considered community property in California. Separate property is defined as:

  • Property you acquire during the marriage (unless it’s gift or inheritance) is considered community property, unless you can prove otherwise.

5. Does California require mediation before a divorce is granted?

No, California doesn’t require mediation as a rule before granting a divorce. The court may call for mediation when negotiations over parenting arrangements have broken down. The Court requires mediation when child custody is involved.

6. How does the state determine child custody?

Legal custody and physical custody are two different things.

  • Legal custody: This outlines how involved each parent is in the major decisions of a child’s life where a child goes to school, what faith he or she is raised in and other biggies (health, education, welfare of child).
  • Physical custody: This addresses where a child will live and with whom. If you have visitation, you still have custody during the times of the visits. Visitation is then negotiated based your physical custody arrangement.

You and your spouse are encouraged to work together to develop a parenting plan. If you can’t agree, then the court will grant custody based on the best interests of the child. These factors are taken into account:

  • Your child’s age.
  • Your child’s health.
  • The emotional ties between each of you and your child.
  • You and your spouse’s ability to care for your children.
  • Any history of family violence or substance abuse
  • Your child’s connection to school, home, and community

7. How does the state calculate child support?

If you and your spouse can’t develop your own agreement on child support, either or both of you may be ordered to pay child support. The state has established guidelines that will determine the amount. They are based upon:

  • How much money each of you earns or can earn.
  • How much other income each of you receives.
  • How many children you and your spouse have together.
  • How much time each of you spends with your child.
  • You and your spouse’s tax filing statuses.
  • Whether either of you is supporting children from other relationships.
  • Health insurance expenses.
  • Mandatory union dues you or your spouse is responsible for.
  • Mandatory retirement contributions you or your spouse must make.
  • The costs of daycare and medical expenses not covered by health insurance.
  • Many other factors the court decides are relevant.

Child support also may include the cost of special needs such as:

  • Traveling for visitation from one parent to another.
  • Educational expenses.

You and your spouse can set up a “non-guideline” support amount if you:

  • Know your child support rights
  • Know the child support amount the state guidelines would suggest
  • Are not pressured or forced to agree to this differing child support amount
  • Are not receiving public assistance
  • Have not applied for public assistance
  • Think that the child support amount you agreed to is in the best interest of your child
  • Have the approval of a judge for your child support amount

8. How does the state determine and calculate alimony?

In California, alimony is also known as spousal support. It’s not automatically a part of a divorce. If spousal support is requested, the court considers these circumstances:

  • Your and your spouse’s earning capacities what skills you have, the market for those skills, how long it might take to acquire any necessary skills, and whether one of you spent time out of the job market to take care of things at home during your marriage.
  • Whether one of you helped or supported the other in getting an education or advancing in his or her career.
  • Whether the spouse who would be paying support could do so financially.
  • You and your spouse’s needs based on the standard of living you achieved while you were married.
  • You and your spouse’s debts and assets.
  • How long you were married.
  • Whether the spouse seeking support could work while meeting the needs of your child.
  • Any evidence of domestic violence.
  • How you and your spouse’s taxes would be affected by any decision.
  • Any other hardships you or your spouse might face.
  • Any other factors the court decides are just.

The goal is that the spouse seeking support will be able to support him- or herself within a reasonable period of time usually considered to be half the length of the time you were married.

9. Is there a waiting period before remarriage in California?

No, you are free to remarry after the court delivers the final judgment ending your marriage.

FOR MORE INFORMATION

Click here for state divorce information from California family court.

Please note: Local and state laws change constantly, therefore this information is for educational purposes only. We do our best to keep state-specific information up-to-date, but please contact us to discuss your unique situation.

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