Divorce Laws in California

An Overview of Divorce Laws in California

California divorce laws are governed by the California Family Code, a series of legislative acts that cover the complete spectrum of legal issues surrounding divorce in the state. The California Family Code is one of 29 legal codes that form all general statutory laws in California.

Under the Family Code, there are three main ways to end a marriage or a domestic partnership in California. They are divorce, annulment, and legal separation. Legal separation does not end a marriage like divorce a does, but it allows courts to decide important issues such as child custody, child support, and the issuance and enforcement of restraining orders. Both spouses do not need to agree to end the marriage. One spouse can initiate the action, and the other spouse or partner can’t stop the process even if they want to remain married.

California is a “no-fault” state meaning that the person requesting the divorce does not need to prove that the other person did anything wrong. State law allows for “irreconcilable differences” as the reason for a marriage to be dissolved.

There are also several laws on the books that cover specific parts of the divorce process. Below are some of the most common legal questions and major issues that come up during a divorce in California:

• Community Property in California
• Debts
• Division of Assets in California
• Gifts
• Inherited Property
• Pensions, IRAs, 401Ks and Retirement Plans
• Separate Property
• Spousal Support in California
• Child Support in California
• Child Custody in California
• Substance Abuse
• Bifurcation of Marital Status
• California Disclosure Obligation
• Spouse’s Default in California
• Domestic Violence
• Health Insurance
• Infidelity and Adultery
• Military Divorces in California

Community Property in California

California is a community property state. Under the California Family Code, this generally means that all property, real or personal, that was acquired by either party during a marriage is equally owned by each partner.

However, there are exceptions regarding the property division. For example, if the property is acquired during the marriage through inheritance or a gift, then the person who was given that property retains a sole interest in it. Also, any property that was acquired either before the marriage or after the date of separation of the marriage is considered the sole property of the person who acquired it.

Determining what is community property and what is separate property is a critical part of determining a fair and equitable division of assets when seeking a divorce in California. In many cases, couples may need to rely on lawyers, forensic accountants, or Certified Divorce Financial Analysts to help them determine ownership of assets and how to divide them equitably.

Debts

California is a community property state which means that any debts or assets acquired by one or the other spouse during a marriage belong equally to both spouses.

The exception to this is that when spouses are discussing a division of assets during the divorce proceeding, one spouse or the other may agree to assume the debt in question in exchange for other concessions. In cases where there is excessive debt above and beyond a couple’s community assets, California courts may assign a more significant portion of the debts to the spouse who is in a better financial condition to pay them off.

Division of Assets in California

Because California is a community property state, there is a great deal of emphasis placed on making sure marital property and assets are divided equitably among divorcing spouses. In some cases, spouses may be able to negotiate what they consider to be a fair and equitable agreement between them. But in other instances, both sides may be required to state their cases in front of a judge if they cannot come to an agreement.

California divorce laws allow for spouses to agree on dividing some assets but seek a ruling on other assets, such as how to decide how each person’s interest in a residence is determined. In addition, every asset does not need to be divided equally down the middle. As long as there is give and take that results in the overall assets being divided fairly, then the court will probably approve the asset division plan.

Asset division includes not only real property but also includes financial holdings as well. Bank accounts, stocks, IRAs, and 401Ks are treated just like real property in California.

The biggest stumbling block when it comes to a division of assets is when one spouse or the other claims that the asset or assets in question are not actually community property, but instead are separate property. Separate property is defined as an asset that was acquired before a couple was married or acquired after the date of separation.

There can also be questions and challenges when dividing property and marital assets. This includes situations when one spouse receives an inheritance, which is considered separate property, but then proceeds to commingle it with community property assets. For example, if a spouse receives a lump sum of cash and deposits it into a joint bank account, this could be considered commingling.

Gifts

California law states that gifts given to one spouse by the other during a marriage are considered separate property. For example, if a wife received a $10,000 diamond watch as a birthday gift, those would clearly be hers in a divorce action.

However, there are other instances that can lead to disagreements when the intent is less clear that the property was actually a gift. If a husband buys a wife a new car for Christmas, but it is intended for both to use as part of their life together, things can become murky as to whether or not it was a gift or it was community property.

When possible, it’s better to avoid disagreements and try to document the receipt of a gift, along with any notations that will help to clearly define the intent of ownership should the subject come up at a later date.

Inherited Property

California law states that property inherited by one spouse during a marriage is separate and not subject to community property rules. There can be gray areas that pop up if a will states that property you inherit goes to you and your family. Under this scenario, a spouse could make a claim, and it would become incumbent on the person who inherited a house or assets to prove that the deceased person intended for them to receive the asset for them alone.

Ownership of inherited property can be invalidated if the person who inherited the asset commingles it with marital assets. For example, inherited monetary assets that are placed in a joint bank account could cause the inheritor to lose their sole interest. Also, if you inherit a home but both you and your spouse move into the home, it could be considered community property.

At all times, it is best to keep inherited assets separate if there is a possibility of divorce that looms in the future. One other way to protect an inheritance is to have your spouse sign a postnuptial agreement. In this agreement, your spouse must agree that the inheritance is yours, no matter how it is used in the marriage by either party.

Pensions, IRAs, 401Ks and Retirement Plans

Pensions, IRAs, 401Ks and retirement plans are probably the biggest assets that a married couple will have if they have been contributing to them consistently and for a long period of time. These assets are treated just like other assets in a divorce. They are considered community property and dividing them must be taken into consideration as part of the divorce process.

This does not necessarily mean that all of these types of assets will be split 50-50 when it is time to divide assets. It may be possible for a couple to negotiate the retention of these types of accounts when their value is compared to the value of other assets in the marriage. For example, if there is a lot of equity in a home, one spouse may trade off an interest in pensions or retirement funds in exchange for taking possession of the family home. Upon the dissolution of their marriage, the couple must come to an agreement and divide the assets fairly.

Legally splitting pensions and other retirement funds is a process that requires multiple steps. First, a divorce decree must order that these financial assets are divided. Armed with this, your divorce attorney or a qualified firm must create a qualified domestic relations order, more commonly referred to as a QDRO.

The  courts must approve the QDRO, and then it can be submitted to the plan administrator, who must also approve it. This establishes that your spouse can be considered an alternate payee, and the retirement vehicle is then divided according to the specifics contained in the QDRO.

Separate Property

California law defines separate property as any assets acquired before a marriage or after the date of separation between two spouses. When either party files for divorce, assets that are separate property do not need to be considered among the assets that need to be divided equitably between spouses.

Conversely, any asset acquired during the marriage is considered community property, and under California laws, should be part of the equitable division of assets, regardless of which spouse decides to file for divorce and end their domestic partnership.

There are exceptions and gray areas when it comes to separate property. Any inheritance acquired during a marriage is considered separate property. However, if the assets of the inheritance are commingled, perhaps in a bank account, or if both people live in an inherited residence, then it may be possible to claim that the inherited assets have become community property.

In cases where the home was bought before the couple married, if both people live in the home during the marriage and both contribute to mortgage payments, then the case can be made that the house is no longer separate property, but community property instead.

Spousal Support in California

There are many factors that determine if, how much, and how long one person will need to pay in spousal support to the other in a divorce. Spousal support is not mandatory in California divorces. Courts have considerable leeway when deciding whether or not to grant spousal support and to determine the duration of the support as well.

When spousal support is initially requested, a calculator will determine temporary spousal support. Still, the court must consider many other things in making a final judgment regarding spousal support or when there is a request to modify support as well.

The key issues that are taken into consideration when determining spousal support include:

• The length of the marriage.
• The earning capacity of each spouse
• The needs and standard of living of each spouse
• Age and health of both spouses
• Existing debts and assets
• Child custody arrangements and whether or not the primary care spouse can hold a job while taking care of the children
• Did one spouse help the other with education, career training or other ways to assist them in advancing their career
• Evidence of domestic violence

Child Support in California

Few issues in a divorce are more contentious than those regarding child support. However, California divorce laws dictate that child support is calculated under a formula established in state Family Code 4055. The formula is complicated, but there are calculators that you can access to assist you in getting a close estimation of what you will be expected to pay if you need to contribute to your children’s well-being after a divorce.

The state takes into account each parent’s wages, benefits, investments, and other sources of income as part of the calculations. In addition, the amount of parenting time spent by each parent is also an essential factor as well. Part of the reason that child support is one of the more contentious issues is that one or both of the parents may not accurately release their current financial information. When it is suspected that this is the case, significant delays can take place.

In some cases, a parent may fall behind on child support payments, or they may completely disregard what the law says and what the court has put in place. When this happens, the other spouse can seek a court order compelling the parent to pay the required level of child support. This may eventually include garnishing the parent’s wages to ensure that the needs of the children are protected.

Child Custody in California

The primary guiding principle in determining child custody in a California divorce is what is in a child’s best interests. This will apply to both legal custody and physical custody. Courts will use many factors to determine this:

• The age and health of your child
• The emotional ties a child has to each parent
• What your child’s preferences are, especially if they are a bit older
• The ability of each parent to care for the child
• What childcare and after-school care arrangements are available for a child if both parents work?
• Are there any instances of domestic violence in the marriage?
• Are there any issues of child abuse?
• Are there any parental substance abuse issues?
• What is the child’s involvement in the community?
• What religious activities is the child involved with?
• Where does the child go to school?
• Where does the child get medical and dental services?

Unless there are negative circumstances surrounding one or the other parent, courts will want an arrangement in which both parents are active and positive participants in their children’s lives.

For this reason, a big part of the divorce process is coming up with a Parenting Plan and submitting it to the court for approval. A Parenting Plan will spell out which parent will have the child and on what days and times this will be the case.

Substance Abuse

Although California is a no-fault divorce state, when one of the spouses has a substance abuse problem, it can impact a divorce, specifically as it relates to child custody and visitation issues. Drug and alcohol abuse will have a negative impact on a parent’s standing in a divorce because courts make decisions based on the best interests of any child involved in a divorce.

Substance abuse can also affect a division of assets when it is determined that one spouse or the other spent considerable marital resources on substance-induced behavior. The same can be said for the impact on spousal support as well.

Before it can be introduced as a factor, a substance abuse problem must be documented and proven. This can be done by testing, the testimony of other family members, representatives from social services agencies or other parties who have an interest in the outcome of the divorce and can provide additional insights.

Bifurcation of Marital Status

Bifurcation means that both parties in a divorce can legally be declared as a single person while the other issues in their divorce are still being worked out. It does not affect things such as child custody, visitation, child support, alimony, or other contentious issues that may have stalled or become major sticking points that are keeping the divorce from being finalized.

The spouse requesting the bifurcation must ask the court for a separate trial that will deal only with the issue of marital status. A judge will not grant a bifurcation trial if the minimum waiting time for divorce in California—at least six months—has not passed since initial divorce papers were served.

Judges will also demand a strong reason why a spouse is requesting bifurcation. These may include issues such as wanting to file tax returns as “Single” or “Head of Household” or if you want to marry another person. If you are granted a bifurcation, and you took the last name of your spouse, you can legally restore your name to your maiden name.

California Disclosure Obligation

California divorce laws stipulate that spouses must disclose to each other the type and amount of all communities and separate assets and debts. This is required so that an equitable division of assets can take place. Each spouse will need to complete a series of forms, and each one is also required to file an income and expense declaration as well.

If you submit a disclosure but later determine that you inadvertently left out an asset, you can file an amended disclosure. Doing this before a court judgment regarding assets is determined is much easier than attempting to do it after a judgment is rendered.

Spouse’s Default in California

When one partner in a marriage files a divorce petition, the other party must file a response with the court within 30 days unless the two parties reach an agreement. When no response is filed, it is considered either a default or uncontested case.

If there is no response, a default action is not automatic. The spouse must fill out and file a request to enter a default, a declaration in support, and a proposed judgment, with the court. In addition to these forms, depending on the circumstances of your divorce, you may also still need to file additional forms seeking child custody and support, spousal support, and property division, as well as any other pertinent forms unique to your case.

Even after all of these actions are taken, a spouse may still appear in court and ask for a relief from the default judgment. Acceptable reasons for this are excusable neglect, making a mistake, and being surprised by the default action.

Domestic Violence

Domestic violence can be a particularly ugly part of a divorce proceeding. As such, law enforcement officials have strong safeguards in place when the appearance of domestic violence is present. Studies show that domestic violence is the largest single cause of injury to women in the United States, with an act of battery on a woman taking place every 9 seconds.

California family law states that you can be considered a victim of domestic violence if you had or have one of the following relationships:

• A spouse or former spouse
• A cohabitant or former cohabitant
• You dated the other person
• A person that you have a child with
• You are a child of the accused
• You are any close member of the accused

And the accused commits any of the following acts of abuse:

• Intentionally or recklessly causes or attempts to cause bodily injury
• Sexual assault
• Isolating or controlling victims
• Stalking
• Battering
• Destroying personal property
• Harassment, including telephone calls, mail, through social media

If you are a victim of domestic abuse, the first thing you must do is take your children and leave the residence where you and the abuser live. If you and your children are in immediate danger, call the police.

You should document any injuries you or your children have sustained, and then seek a domestic violence restraining order (DVRO) from a family law court. Temporary restraining orders are granted on an emergency basis and take effect immediately. They are short in duration and are put in place until a hearing can take place to determine if a permanent restraining order should be granted.

Once put in place, this legal action will prevent the alleged abuser from taking any steps, such as assault, stalking, or making any threats against you. It will also remove the alleged abuser from the residence, prevent them from buying a firearm and require them to pay for any abuse-related medical bills, lost wages, and possibly child and spousal support.

Health Insurance

In most instances, when you get a divorce in California and you are covered under a spouse’s healthcare plan, that coverage will end and you’ll be forced to seek coverage elsewhere. However, if children are involved, then any child support will need to include health insurance coverage for children, either by one or both of the parents’ contributions, as long as that coverage is available at no cost or at a reasonable cost to the parent.

If you are the spouse who will be losing health insurance coverage, then you should disclose the cost of what a plan will be for you so that they may be figured into any spousal support ruling. You may be able to continue health insurance through your ex-spouse’s plan as part of COBRA, but if this is the case, you will be required to pay the premiums that were formerly paid by the spouse and the employer.

Infidelity and Adultery

Infidelity and adultery, more commonly known as “cheating” takes place when one married person has voluntary sexual intercourse with someone who is other than their spouse. Because California is a no-fault state, couples only need to cite “irreconcilable differences” or “incurable insanity” as grounds for divorce.

However, adultery can have an impact on a divorce in California if it can be shown that the unfaithful spouse spent community financial resources on his or her lover. In this case, a judge can order the offending spouse to be held accountable for reimbursing the marital property or community resources. In general, adultery does not have an impact on divorce proceedings and child custody unless it can be shown that the adulterous relationship has a severe negative effect on the children.

Military Divorces in California

There are special laws in place when it comes to one spouse or the other who is currently in the military and who wants to file for divorce. These are special rules that supersede state law in many instances as part of the Servicemembers Civil Relief Act. The Act was put in place to ease the legal and financial burdens of military personnel and their families who face the challenges of active duty.

A spouse or the active military servicemember must have been a resident of California for at least six months and a resident in the county where they will file a petition for divorce for at least three months. The divorce can also take place if the spouse or the servicemember is stationed in California.

To get a divorce in California, the service member does not need to be in California when the petition is filed, but they will need to be personally served or be notified by certified mail no matter where they are stationed. If they choose not to contest the divorce, they will not need to be served as long as they sign and file a waiver acknowledging the divorce.

In a contested divorce, under the Soldiers and Sailors Civil Relief Act, a California court may choose to postpone the divorce proceeding for the entire time the servicemember is on active duty, and for up to 60 days following discharge.

Per California divorce law, child and spousal support awards may not exceed 60% of a service members’ pay and allowances. The same guidelines and calculations that are used for non-military divorces are also used when a servicemember is involved.

The federal government uses the Uniformed Services Former Spouses’ Protection Act (USFSPA) to govern how military retirement benefits are calculated and divided in a divorce. The main requirement for a retirement distribution to a spouse is that the couple must have been married 10 years or longer while the service member has been on active duty.

Looking for more great tips to help you get through divorce in California? Here are a few of our favorite resources:

• 101 Financial Pitfalls of Divorce
• A Guide to Your Home and Mortgage in Divorce
• CalPERS and Divorce: A Helpful Guide
• CalSTRS and Divorce: A Helpful Guide
• How to File For Divorce in California (What You Need to Know)
• A Guide to Divorce in California