Thursday, November 29, 2007

California Divorce Laws

California Divorce Laws

Residency Requirements for Divorce in California
A spouse filing for dissolution of marriage must have been a resident of the state for 6 months and a resident of the county for 3 months where the dissolution of marriage is filed. In addition, there is a waiting period of 6 months after the service of process or the appearance by the respondent before the dissolution of marriage becomes final. Partners of a "domestic partnership" under California Family Code Section 297 may terminate their partnership by using forms available from any county clerk or the office of the Secretary of State.
[Annotated California Code; Sections 297, 298, 2320, and 2339].

Legal Grounds for Divorce in California

1. No Fault Divorce: Irreconcilable differences which have caused the irremediable breakdown of the marriage.
[Annotated California Code; Section 2310].
2. General Divorce: Incurable insanity.
[Annotated California Code; Section 2310].

Legal Separation in California
The grounds for obtaining a legal separation in California are:

1. Irreconcilable differences
2. Incurable insanity.

A spouse filing for legal separation must have been a resident of the state for 6 months and a resident of the county for 3 months where the action for legal separation is filed for.
[Annotated California Code; Sections 2310 and 2320].

Simplified/Special Divorce Procedures in California
A marriage of 5 years or less may be dissolved by summary action. A Joint Petition for Summary Dissolution of Marriage may be filed if:

1. Either spouse has met the residency requirement for a standard dissolution of marriage
2. There is an irremediable breakdown of the marriage due to irreconcilable differences
3. There are no children born of or adopted during the marriage
4. The wife is not pregnant
5. Neither spouse owns any real estate
6. There are no unpaid debts exceeding $4,000 incurred during the marriage
7. The total value of the community property (including any deferred compensation or retirement plans but excluding cars and loans) is less than $25,000
8. Neither spouse has separate property (excluding cars and loans) exceeding $25,000 in value
[On January 1 of every odd-numbered year, the dollar amounts in this section may be revised]
9. The spouses have signed an agreement regarding the division of their assets and the assumption of their liabilities and have signed any documents or given proof of any transfers necessary to effectuate the agreement
10. The spouses waive any rights to spousal support [maintenance]
11. The spouses waive their right to appeal the dissolution of marriage and their right to a new trial upon entry of the final dissolution of marriage judgment
12. The spouses have read and understand the summary dissolution of marriage brochure available from the county clerk
13. Both spouses desire that the marriage be dissolved

Official mandatory and optional forms for filing for a Summary Dissolution of Marriage are available from the County Clerk of any county.
[Annotated California Code; Sections 2400 and 2401, and Judicial Council Forms].

Divorce Mediation or Counseling Requirements
When spouses seek a no-fault dissolution of marriage (on the grounds of irremediable breakdown of the marriage) and it appears to the court that there is a reasonable possibility of reconciliation, the court will stay the dissolution of marriage proceedings for 30 days. If there is no reconciliation at the end of this 30-day period, either spouse may move for a dissolution of marriage or legal separation. In addition, a confidential counseling statement must be filed in any county that has a Conciliation Court. Official forms to this effect are available from the County Clerk of any county that has a Conciliation Court. In addition, if child custody is contested, a mediation conference will be ordered at which the mediator may choose to exclude any attorneys of the parents.
[Annotated California Code; Sections 2334(a)(c), 3170, and 3182(a) and California Family Law Court Rule 1224].

Divorce Property Distribution
California is a "community property" state. Any jointly-held property is presumed to be "community" property, unless it is clearly stated in a deed or written agreement that the property is "separate" property. Unless the spouses agree otherwise, all community and quasi-community property is divided equally between the spouses. If economic circumstances warrant, however, the court may award any asset to 1 spouse on such conditions as it feels proper to provide for a substantially equal distribution of property. In addition, if 1 of the spouses has deliberately misappropriated community property, the court may make an unequal division of the community property. Marital contributions to the education and training of the other spouse that substantially increases or enhances the other spouse's earning capacity are reimbursable to the community property. Each spouse shall be responsible for the following debts:

1. Those incurred prior to marriage
2. Any separate debts during the marriage that were not incurred to benefit the community (marriage)
3. Their equitable share of any community debts made during the marriage
4. Any debts incurred after separation and before dissolution of marriage if the debts were for non-necessities and an equitable share of debts incurred during this period if the debts were for necessities.

[Annotated California Code; Sections 2501, 2581, 2601, 2602, 2620, 2621, 2623, 2625, and 2641].

Alimony and Spousal Support
The court may award support to either spouse in any amount and for any period of time that the court deems just and reasonable, based on the standard of living achieved during the marriage. The factors considered are:

1. Whether the spouse seeking support is the custodian of a child whose circumstances make it appropriate for that spouse not to seek outside employment
2. The time necessary to acquire sufficient education and training to enable the spouse to find appropriate employment and that spouse's future earning capacity
3. The standard of living established during the marriage
4. The duration of the marriage
5. The comparative financial resources of the spouses, including their comparative earning abilities in the labor market
6. The needs and obligations of each spouse
7. The contribution of each spouse to the marriage, including services rendered in homemaking, childcare, education, and career-building of the other spouse
8. The age and health of the spouses
9. The physical and emotional conditions of the spouses
10. The tax consequences to each spouse
11. The ability of the supporting spouse to pay, taking into account that spouse's earning capacity, earned and unearned income, assets, and standard of living
12. The balance of hardships to each party
13. Any other factor the court deems just and equitable

Marital misconduct is not a factor to be considered in determining the amount of support, except for a criminal conviction of an abusive spouse. The goal is specifically to make the supported spouse self-supporting in a reasonable period of time (generally considered to be half the length of the marriage).
[Annotated California Code; Section 4320, 4324, and 4330].

Spouse's Name After Divorce
On a party's request, the court shall restore a spouse's former or birth name, regardless of the last name of any custodial child.
[Annotated California Code; Section 2080 and 2081].

Child Custody After Divorce
Joint or sole custody may be awarded based on the best interests of the child and the following factors:

1. The preference of the child, if the child is of sufficient age and capacity
2. The desire and ability of each parent to allow an open and loving frequent relationship between the child and the other parent
3. The child's health, safety, and welfare
4. Any history of child or spouse abuse by anyone seeking custody or who has had any caretaking relationship with the child, including anyone dating the parent
5. The nature and amount of contact with both parents
6. Any habitual and continued use of alcohol or illegal controlled substances

Marital misconduct may also be considered. Custody is awarded in the following order of preference:

1. To both parents jointly
2. To either parent
3. To the person in whose home the child has been living
4. To any other person deemed by the court suitable to provide adequate and proper care and guidance for the child

However, it is not presumed that joint custody is necessarily the preferred choice, unless there is an agreement between the parents regarding joint custody. No preference in awarding custody is to be given because of parent's sex. The court may order a parent to give the other parent 30-days' notice of any plans to change the residence of a child.
[Annotated California Code; Sections 3011, 3020, 3024, 3040, and 3042].

Child Support After Divorce
Either parent may be ordered to pay an amount necessary for the support, maintenance, and education of the child. Child support payments may be awarded on a temporary basis during custody or child support proceedings. There is a mandatory minimum amount of child support which is determined by official forms which are available from the County Clerk of any county. These minimum payment amounts will apply unless there is a reasonable agreement between the parents providing otherwise that states that:

1. The parents state that they are fully informed of their rights regarding child support under California law
2. That the child support amount is being agreed to without coercion or duress
3. That both parents declare that their children's needs will be adequately met
4. That the right to child support has not been assigned to the county and that no public assistance is pending

A parent may be required to provide medical insurance coverage for a child if such coverage is available at a reasonable cost. An applicant for child support must complete and submit to the court:

1. An application for an expedited child support order
2. An income and expense declaration from both parents
3. A worksheet setting forth the basis of the amount of child support requested
4. A proposed expedited child support order

The parent required to pay may be required to give reasonable security for the support payments. In addition, there are detailed and extensive statutory provisions in California relating to the securing of child support payments. Please consult the statutes directly if this is an important factor.
[Annotated California Code; Sections 3024, 3622, 4001, 4050, Judicial Council Forms, and California Rules of Court].