Divorce – State FAQ – California
Residency requirements, venue and procedures
Q: How long must I have lived in California prior to filing for divorce in an California court?
A: At least one of the parties to the dissolution action (“dissolution” is the technical California name for divorce) in California must have been a resident of the state for at least six months prior to the filing of the action and a resident of the county in which the action is filed for at least three months prior to the action being filed.
Q: What are the terms used to identify the parties in a divorce proceeding?
A: The party who initiates the proceeding is called the Petitioner, while the other party is referred to as the Respondent.
Q: What is “venue,” and what is the proper venue for a divorce case?
A: “Venue” refers to which type of court and in what locality the case is filed. In California, proper venue for the divorce action is the Superior Court in the jurisdiction where the defendant resides.
Q: What is the title of the document initiating the action for divorce? The document granting the divorce?
A: The title of the document initiating the dissolution is a Petition for Dissolution of Marriage, while the title of the order granting the dissolution is referred to as a Final Judgment of Dissolution of Marriage.
Q: Are there any waiting periods associated with a divorce action?
A: Yes. The judgment of divorce is not final until six months have elapsed from the date the the respondent was served with a copy of the summons and petition or the date of appearance of the respondent, whichever comes first. Further, if upon filing of the divorce action it appears that there is a reasonable chance that the parties may reconcile, the court shall order a continuance of the proceeding for a period not to exceed thirty days.
Grounds for divorce
Q: What is meant by “grounds for divorce”?
A: A “ground” for divorce is a “reason” for divorce. A set of judicially recognized reasons for divorce exist in California. You must use one or more of these reasons to justify your divorce.
Q: What are the recognized grounds for divorce in California?
A: California law allows for divorces based upon the grounds of irreconcilable differences, or incurable insanity. Irreconcilable differences are statutorily defined as those differences determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved. For a decree of dissolution of marriage to be granted based upon incurable insanity, proof must be presented to the court that at the time the petition was filed, the insane spouse was, and still is, incurably insane.
Summary Dissolution of Marriage
Q: What are the steps and qualifications for a Summary (simplified) Dissolution of Marriage (divorce) in California?
A: A summary dissolution of marriage proceeding is begun by the filing of a joint petition signed by both the husband and wife stating that all of the requirements for summary dissolution have been met, providing the mailing address of both husband and wife, and a statement of whether or not the wife desires to have her former name restored. Strict qualifications must be met in order to use the summary dissolution procedure. View details in the California Divorce Information section on the California Divorce Main Page
Q: Does California law provide for “legal separation”?
A: Yes. A judgment of legal separation may be obtained in California on the same grounds as those permitted for an action of dissolution of marriage.
Q: What does the term “spousal support” (or, “alimony”) mean?
A: “Spousal support” (sometimes called “alimony”) is money paid by one spouse to the other due to the payee spouse’s loss of the benefit of the payor spouse’s income due to the divorce.
Q: Is spousal support available while the divorce is pending in court, or only after the divorce has become final?
A: The court may order that one spouse support the other during the pendancy of the divorce action and/or after the divorce has become final. Support awarded pending the final decree of divorce is not to extend beyond the period of time necessary for the prosecution of the divorce action.
Q: What factors will the court consider when determining how much alimony to award to a party? Is a party’s degree of fault considered?
A: Fault is not normally considered when awarding alimony. The goal in awarding spousal support is to help the spouse receiving alimony to become self-supporting within a reasonable time. Generally, the courts consider one half the length of the marriage to be a reasonable time a spouse to become self-supporting. Factors the court will consider when determining how much support to award can be viewed in the Divorce Information section on the California Divorce Main Page
Division of Property
Q: On what basis does the court decide how marital property is divided?
A: The courts in California will divide the community property of the parties equally after setting aside to each spouse that spouse’s separate property. Community property is presumed to be all property acquired by the parties during the marriage and held in joint form. This presumption may be rebutted by a clear statement in the title by which property is acquired that the property is separate and not community property or by proof that the parties have a written agreement that the property is separate property.
Q: Is the “separate property” of one spouse ever subject to being divided up? How is “separate property” defined?
A: The question here is whether property “belonging to” one of the parties should be included in the marital estate for purposes of equal division. Generally, separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if neither the property nor its income has been used for the common benefit of the parties during their marriage.
Q: What if the parties occasionally use an item of separate property (for example, silver table utensils inherited by the wife) for the benefit of both parties?
A: The property may be subject to division. Where the parties regularly use property acquired by one party before marriage for he common benefit of the parties, it is more likely to be available for consideration in dividing property. The frequency of use may be considered by the court in making the decision.
Child custody and visitation
Q: What is child custody and visitation?
A: “Child custody” refers to which parent will have legal custody of the child(ren), i.e. with whom the child(ren) will live. “Visitation” is the topic of the non custodial parent’s ability to visit/spend time with the child(ren).
Q: If the parents cannot agree on child custody and visitation issues, on what basis will the court decide?
A: The court may award custody to either parent, regardless of sex, subject to the best interests of the child. In determining the best interests of the child, the courts will consider the following:
1. The health, safety and welfare of the child;
2. Any history of abuse by a parent;
3. The nature and amount of contact by both parents;
4. Any history of substance abuse; and,
5. The wishes of the child
Q: What is “child support”?
A: Child support is money paid by the non custodial parent to the custodial parent in order to meet the needs of the child(ren).
Q: To what should the parties look for guidance regarding amount of child support to be paid? What standard will the court use if the parties cannot agree?
A: Either or both parties may be ordered to pay an amount reasonable and necessary for the support of any minor children of the marriage. The State of California has enacted child support guidelines which establish the presumptive correct amount of child support due.