California Divorce Law
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Divorce Residency Essentials to File California Divorce Forms Online
A spouse seeking to file for divorce must have been a resident of California for six months as well as be a resident of the county for three months where the divorce is to be filed. Also, a waiting period goes into effect six months after the documents have been served or the appearance by the divorcee before the divorce is finalized. Partners in a domestic partnership, under California Family Code Section 297, are able to end their partnership by using documents available from any county clerk, or through the Secretary of State's office. [Annotated Family Code; Sections 297, 298, 2320, and 2339].
Reasons for Divorce in California
There are mainly two reasons of divorce in California that is fault and no-fault. In order to file for divorce in California, the proper grounds must be established. Both spouses are involved in establishing these grounds, and both must substantiate and agree upon these, unless the divorcing spouse is trying to prove to the court.
Irreconcilable differences which have caused the irremediable breakdown of the marriage [Annotated California Code; Section 2310]. Irreconcilable differences are determined by the court, and are based upon how truly unlikely the matter is to be irreconcilable.
- Incurable instanity: For incurable insanity to be established, there has to be a measure of documentation, such as competent medical or psychiatric testimony, and that there is no hope of regaining sanity. However, no spouse deemed legally insane is exempt from having to fulfill their legal obligations, including child and/or spousal support (if any). (California Code - Sections: 2310)
Custody of the Children in California
A court in California grants the custody of the children upon divorce. The child custody can be granted to either parent on the following grounds.
Best interests of the child: When children who are minors are involved in a divorce, the California courts will do whatever it takes to help lessen the emotional trauma on the children. If the parents cannot reach an agreement with regards to the issues in which the children are involved, the court will determine the matter of custody at its discretion.
Upon divorce, the court will make a child custody decision for a divorce in California, based on the following points:
- The preference of the child
- The desire and capability of the parents to allow an open, loving, and frequent relationship between the other parent and the child
- The welfare, health, and safety of the child.
- Any history of abuse by a parent or person seeking custody towards any of the following:
- Any child that person is related to, whether by blood, affinity, or position as caretaker, regardless of how temporary.
- The other parent.
- A cohabitant, parent, or current spouse of the person or parent seeking custody, or a person with whom the person or parent seeking custody has an engagement or dating relationship.
- The amount and nature of contact with both parents.
- The continual or habitual illegal use of controlled substances or continual or habitual abuse of alcohol by either parent. Notwithstanding any other condition of law, every visitation or custody order shall contain all of the following in any proceeding to determine child custody or visitation with a child:
- The basis for the court's jurisdiction to be exercised.
- The way in which opportunity to be heard and notice were given.
- A clear explanation of the visitation and custody rights of each spouse.
- A condition which states that a violation of the order may subject the spouse in violation to criminal or civil penalties, or both.
- Identification of the country of habitual residence of the child or children. (California Code - Sections: 3011, 3020, 3024, 3040, 3042)
Property Distribution in California
As a "Community Property" state, California divides all property accumulated during the course of the marriage in a 50-50 split in the event that an agreement cannot be reached.
Property gained together (i.e. joint property) is presumed to be community property, which affects the burden of proof. This can then be rebuked by:
An obvious statement in the paperwork for that property that declares that the property is solely that of the individual and not community property; or
Written proof that the spouses have made an agreement that the property is that of an individual and not community property.
The courts go to great lengths to make the distribution of property as equitably as possible, and may take portions of one person's property to cover the costs of those disparities of the other.
Any debts accumulated after the date of separation, but prior to the decision made by the courts regarding the divorce or legal separation are confirmed as such:
- Debts accumulated through the cost of living for both spouses as well as the needs of any children, without proof stating otherwise, is determined by who is more able to pay the debt at the time in which it was accumulated.
- Debts accumulated for non-necessities for either spouse, or for any children, will be determined without offsetting any support the court may issue to the spouse who incurred the debt.
Debts acquired after the motion for divorce has been filed, but before a ruling by the courts, will be confirmed without offset to the spouse who acquired the debt. (California Code - Sections: 2501, 2581, 2601, 2602, 2621, 2623, 2625, 2641)
California Spousal Support Guidelines
Spousal support is handled on a case-by-case basis, and spousal support can be temporary, permanent, or not be awarded at all. This is determined by either an agreement between the spouses, or at the court's discretion.
In applying the statewide uniform guideline, the courts will abide by the following principles:
- The ability of the spouses to maintain the same standard of living during the marriage, taking into account:
- The marketability of any skills the supported party has; the likelihood of employment with those skills; the necessary time and expenses needed to acquire marketable skills; and the possible need for retraining or education to develop those or other marketable skills; or employment.
- How the employability of the supported employee as it related to time spent unemployed to perform domestic duties.
- The extent to which the supported person contributed to the other's education, training, career position, or license by the person providing support.
- The ability of the supporter to provide spousal support, taking into consideration the supporting person's earning ability, unearned and earned income, standard of living, and assets.
- The needs of each person, established during the marriage, based on the standard of living.
- The assets and obligations of each party, including the separate property of each individual.
- The length of the marriage.
- The ability of the person being supported to find employment that will not unduly interfere with the best interests of the children in the custody of that person.
- The health and age of each spouse.
- Any proof of a history of domestic violence, as defined in Section 6211, between the spouses, including, but not limited to, emotional distress caused by any domestic violence to the supported spouse by the supporting spouse, and any violence committed by the supported spouse on the supporting spouse.
- The specific and immediate tax consequences to each spouse.
- The ratio of the hardships to each spouse.
- The goal that the person being supported will be self-supporting within a reasonable time period. Except when dealing with a marriage of long duration, as it is described in Section 4336, a "reasonable period of time" is generally defined as one-half the length of the marriage for purposes of this section. However, the court's discretion is not limited in its decision to allow a lesser or greater amount of time based on the factors listed in this section, Section 4336, and the circumstances of the spouses.
- Any criminal conviction of an abusive spouse will be considered in deciding whether or not to make a reduction or the elimination of a spousal support award.
- Any other circumstances that the court determines are equitable and just. (California Code - Sections: 4320, 4324, 4330)
California Child Support Guidelines
Child support guidelines in California are based on the Income Shares Model for determining child support. The amount of monthly support determined by applying the guidelines is distributed in fair proportion according to the income of each parent. Then, the two support amounts are used to establish which parent will pay the other parent for child support. All income is most often based on past W-2's and child support worksheets are available at the clerk's office.
In applying the statewide uniform guideline, the courts will abide by the following principles:
- A parent's principal and first obligation is to provide for his or her minor children, in accordance to the parent's station in life and circumstances.
- The mutual responsibility for the support of their children belongs to both parents.
- The guideline considers each parent's actual level of responsibility for the children and income into account.
- Each parent should pay their fair share to support the child or children.
- The guideline places the interests of children as the primary priority of the state.
- Children should share in both parents' standards of living. As a result, child support may therefore appropriately improve the children's lives due to the improvement in the standard of living within the custodial house.
- In situations in which both parents have high levels of responsibility for the children, these factors should minimize considerable inequalities in the children's living standards and also reflect the expenses incurred as a result of raising the children in two homes.
- The needs of the children should be settled through private financial resources in so far as they are able to be settled.
- It is assumed that the parent with primary physical responsibility will contribute a significant amount of the resources available in order to support the children.
- The guideline attempts to efficiently and equitably reach settlements of conflicts between spouses and tries to reduce the need for litigation as much as possible.
- Only in rare situations should child support orders fall below the amount dictated by the guideline formula, since the guideline is assumed to be correct in all cases.
- Child support orders mandate that children get timely, fair, and proper support which should be reflected by California's high costs of child care and equally high standard of living in comparison to other states. (California Code - Sections: 3024, 3622, 4001, 4050)
If the court feels there is chance that reconciliation may occur in a no-fault divorce, the judge may choose to impose a 30 day delay in the proceedings.