How to File a Divorce in California

How to File a Divorce in California

by Edward A. Haman, Esq., July 2015

In California the divorce procedure is called a dissolution of marriage. A dissolution for any married couple will accomplish two things: (1) severing the marital relationship, and (2) dividing assets and debts. If they have been married for a significant length of time and one of them will be unable to be self-supporting, the issue of alimony may arise. If there are minor children, they will need to resolve issues of child custody, visitation, and support.

Procedures

To file for dissolution of marriage in California, the party filing for dissolution must have been a resident of California for at least six months, and a resident of the county for at least three months.

Summary Dissolution Procedure.

There is a summary dissolution procedure if all of the following conditions are met:

  • there are no children and the wife is not pregnant,
  • you have not been married for more than five years,
  • neither party has any interest in real property (except for a lease that does not include a purchase option and ends within one year of filing the Petition),
  • there are no marital debts in excess of $4,000, excluding a car loan,
  • the fair market value of community property (excluding debts and automobiles, but including deferred compensation or retirement plans) is less than $25,000, and neither party has separate property (excluding debts and automobiles) in excess of $25,000,
  • the parties have executed a property settlement agreement and have executed any documents necessary to effectuate the agreement (such as title transfers),
  • the parties waive spousal support,
  • the parties waive their right to appeal and to move for a new trial,
  • the parties have read and understand a summary dissolution brochure that is available from the Superior Court clerk, and
  • both parties desire dissolution.

Whether you file for summary dissolution or a regular dissolution, you begin the procedure by filing a Petition for Dissolution of Marriage in the Superior Court of the county where you live. For the most basic procedures (the summary dissolution or an uncontested dissolution with the regular procedure), you, and possibly your spouse, will be required to attend a court hearing. The judge will ask some questions, to be sure you understand and agree to everything, and will enter a Judgment of Dissolution of Marriage.

Grounds for Divorce

Grounds are legally recognized reasons to get a dissolution and sever the marital relationship. California has what is commonly called a no-fault ground for dissolution. You need to state in the Petition that: “The parties have irreconcilable differences which have caused the irremediable breakdown of the marriage.” The only other ground for dissolution is the “incurable insanity” of your spouse.

Property Division in California

In dividing property and debts, California adopts the concept of community property, where property acquired, and debts incurred, during the marriage is marital property. Generally, each party will keep their non-marital property and the marital property will be divided between them. California law does not require the judge to consider any particular factors in dividing property. The judge may order arbitration if you and your spouse cannot reach an agreement on property and debt division.

Alimony in California

In California alimony is called spousal support. In deciding whether to award maintenance, and the amount and duration, the judge must consider the following factors:

  • whether each party’s earning capacity of each party is sufficient to maintain the standard of living established during the marriage,
  • extent to which the supported party contributed to the education, training, career position, or license of the supporting party,
  • ability of supporting party to pay support, taking into account the party’s earning capacity, income, assets, and standard of living,
  • each party’s needs, based on the standard of living established during the marriage,
  • each party’s obligations and assets, including the separate property,
  • duration of the marriage,
  • ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the party’s custody,
  • age and health of the parties,
  • any history of domestic violence between the parties,
  • tax consequences to each party,
  • balance of the hardships to each party,
  • the goal that the supported party be self-supporting within a reasonable period of time, and
  • any other factors the court determines are just and equitable.

Child Custody in California

If you have any minor children, there will have to be a custody determination. There are two aspects to custody: legal custody and physical custody. Legal custody refers to the right to make major decisions for the child, and physical custody refers to where the child lives. Traditionally, one parent was awarded custody, and the other was given visitation rights. California has adopted a preference for joint custody. The idea is that both parents should continue to be involved in decision-making, and both parents should have significant contact with the child. But it all still comes down to figuring out how time with the child will be divided between the parents, and how decisions will be made.

According to California child custody laws, if the parties cannot reach an agreement on custody, the judge will make a decision based upon the best interest of the child, considering:

  • the health, safety, and welfare of the child,
  • any history of child abuse or domestic violence,
  • the nature and amount of contact with both parents,
  • any drug or alcohol abuse, and
  • any other relevant factor.

Child Support in California

Children must be financially supported. This almost always results in one parent paying money to the other. Child support takes into account the needs of the child, and each parent’s ability to meet those needs. This is done by referring to the California child support guidelines. Forms that can be used to apply the guidelines to your situation may be obtained from your county’s Superior Court clerk.

Miscellaneous Matters

A Judgment of Dissolution of Marriage is not final until six months after service of the Petition on, or the appearance of, the other party, whichever occurs first.

If you and your spouse agree on the major issues, an uncontested divorce may be right for you. Otherwise, you can talk to an attorney to get advice or help filing for divorce with the LegalZoom personal legal plan.