Learn How California Divorce Law Affects Your Case and What You Can Expect

Are you a resident of California and considering divorce? You are not alone. The fact is, a huge number of people across the country are breaking up their marriages for many reasons, and this is the case in California too. In fact, according to statistics, 1 out of every 3 marriages in the country is now ending in a divorce.

Before you can file for divorce in the state, you will need to know the process for doing so. Most importantly, you will need to be aware of the California divorce law. Do keep in mind that though there are many similarities between the divorce laws of the various states in the United States, there are quite a few differences as well. It thus makes sense to find out what the exact laws are for the State of California.

Residency Requirements in California

Before filing your Petition for Dissolution of Marriage in California, you will need to ensure that the Superior Court has jurisdiction over your case. In all truth, meeting the residency requirements is a concern for only those people who have moved into the state recently. If you have been living here all your life, then there is no reason for you to worry about this.

According to the laws of the state, you can file for divorce in California if you or your spouse has been a resident in the state for a period of at least 6 months and in the county for a minimum period of 3 months before the date of the filing. Either you or your spouse may have a separate domicile or residence, and this depends on proof of this fact and not upon legal presumptions.

Your petition for divorce can be filed within the county in which you or your spouse lives according to California Code – Sections: 297, 298, 2320, 2339.

Grounds for Seeking Divorce in CA

The Petition for Dissolution of Marriage is the first document that you will need to submit to the court and it is in this that you will need to mention the ground/s for which you are filing for divorce.

According to the state laws, you can file under two broad grounds, and they are:

•    ‘No-fault’ divorce in which the only ground is ‘incompatibility'--neither of you is bringing any charges on the other
•    ‘At-fault’ divorce in which there are some specific charges that you are charging your spouse with for breaking up the marriage; of course the charge needs to be proven in the court. When you do this, you should be prepared for some defending because your spouse is almost certain to refute them and he/she may even bring some counter-charges.

The grounds for an ‘at-fault’ divorce in the state can be incurable insanity, impotency, abusive behavior (mentally or physically), abandonment, a prior criminal charge that has been proved in the court and extra-marital affairs. For many couples (particularly when it is a ‘no-fault’ divorce), it does not matter which spouse files the petition for divorce.

You must also ensure that a copy of the divorce papers was served to your spouse or his/her lawyer. It is best to have the papers served in a dignified manner, such as in the evening or to the lawyer's office. Do not have the papers served to your spouse at work.

Property Division and Divorce

This is another important issue that is related to divorce. When you are separating from your spouse, you will want to have the property distributed fairly. There are some laws about this as well. In California, issues of debt and property are dealt with in the agreement for Marital Settlement. If the two of you cannot agree on this, then the court makes the decision when the final judgment is passed in the marriage dissolution.

Do remember that California is a "Community Property" state. Community property has been defined as mutually held assets and debt held by the two of you from the day of the marriage until the time of the divorce. According to the state regulations, if there is no mutual agreement, then the court will make an equal distribution of such assets.

Child Custody and Divorce in California

Child custody is an area that is almost always at the forefront of conflict in a divorce case. While both you and your spouse may fight over who will get custody, the court may disagree with you or your spouse. There are divorce laws in the state that the court will adhere to for determining who gets to keep the child.

While deciding this, the court considers many issues, including:

•    The child’s welfare, health and safety
•    If you or your spouse has an abusive history, then the court will take this seriously and most likely make the award in favor of the other person
•    The amount and nature of contact between you and your spouse
•    The continual or habitual use of substances that are controlled or continual or habitual alcohol abuse by you or your spouse (California Code - Sections: 3011, 3020, 3024, 3040, 3042)
•    The preference of the child: this is asked only if the child is intelligent, understanding and experienced/mature enough to express a preference
•    Any other factor the court deems important

Keep in mind that if you are awarded custody, you will be duty-bound until your child passes grade 12 or becomes 19 years of age, whichever happens first.

While determining child support, the court might use the Worksheet for Child Support. This generates the correct California obligation for child support, which is done based on your and your spouse’s income. Other factors of relative importance are also considered, like the amount of taxes paid and retirement contributions.

Mediation or Counseling

After you have filed your appeal for divorce, and before the court gives its final verdict, the court in California will ask the family conciliation court to try and see if the marriage can be saved (California Family Code - Sections: 1830). This is particularly the case if you have filed for divorce under the ‘no-fault’ ground and if the two of you have a child. If all mediation and counseling sessions fail, then the court will have no other option but to proceed with the divorce proceedings.

Name Changes

When you or your spouse places a request for name changes, the court shall restore the birth name or former name, regardless of whether or not a request for restoration of the name was included in the petition. This is possible according to the California Family Code – Section 2080.

Alimony and California Divorce Laws

A court can order alimony, which is referred to as "spousal support" in California. In granting alimony according to the divorce laws in the state, the court will consider many issues, including:

•    The standard of living established during the marriage
•    The duration of the marriage
•    The needs of you and your wife
•    The financial resources and liabilities of your spouse and you
•    The impact on the children if the care-giving spouse is working
•    Your and your spouse’s contribution to domestic duties and the education and career of both the partners
•    Any tax consequences
•    All sources of income available to you and your husband/wife