California Family Law Divorce Guide

The divorce process in family law can be daunting. Our approach is to educate our clients about the divorce process, the options for each case, and to provide an appropriate recommendation for your situation. Knowing your rights will empower you to make the best decision for you.

Three Different Ways Married Couples Can End Their Marriage in California

  • Legal Separation

    It is a common misconception that “separation” occurs once one spouse moves out of the home. However, being legally separated requires more than a physical separation. A legal separation must be granted by the courts, just like a divorce.

    The couple remains married, but the process allows the couple to work out custody, asset division and support.

  • Annulment

    An annulment allows the marriage to be considered null and void. In other words, the couple can move forward with their lives as if they were never married.

    California Courts may grant annulments for several reasons including but not limited to incest, bigamy, being under 18 when the marriage took place, fraud, or being forced or coerced into marriage against a person’s will.

    Annulments are rare given their strict requirements. Parties cannot agree to an annulment; it must be granted by a judge. There are also time limitations on when a court can grant an annulment.

  • Divorce

    In California, divorce is permanent and straightforward process to end the marriage.

    Once all requirements are met, the couple will divide assets, resolve child custody and support issues, and other related concerns, and ultimately have the courts agree to issue a final decree that permanently and legally terminates the marital status for the couple.

Note on Domestic Partnerships

When a Registered Domestic Partnership ends, it must also be terminated formally.

Considerations before Filing for Divorce

The experienced divorce attorneys at Candelaria LLP can relieve you of the stress and challenges that accompany this difficult time. California has specific procedures that must be followed and our law firm can help you navigate this process to help you plan. Learn more about Our Services.

  • California requires that at least one spouse is a California resident for 6 months or 180 days prior to filing for divorce, as well as resident of the county in which the divorce action is being filed for at least 3 months or 90 days prior to filing. There is no residency requirement for a legal separation.

  • Another consideration is the grounds for divorce. California is a purely “no-fault” divorce state which means that in order to get a divorce in California, you never have to prove that the other person did something wrong. Instead, most divorces are based on “irreconcilable differences”.

    However, “fault” may be considered by the court in narrow situations, such as in domestic violence situations, property division or reimbursement claims. For example, the court may consider whether your spouse committed domestic violence and whether that should be considered in making child custody or spousal support orders. If your spouse wasted community funds on an extramarital affair or gambling, the court may order that spouse to reimburse the community for misappropriated community property funds.

  • The next consideration is whether the divorce will be whether the divorce will be filed contested or uncontested.

    An uncontested divorce is where the parties agree on the terms of the divorce paperwork or a proceeding where one party fails to respond. One benefit of an uncontested divorce is that it is easy and less expensive because the entire matter can be completed with just the paperwork with the court. Neither spouse will have to go to court. Spouses often reach agreements with the advice of their attorneys or through mediation.

    However, parties will not always agree or the division of assets and liabilities, support, and/or child custody arrangements.

Additional Considerations

Before taking this major, life-changing legal action, considerations should include the current state of the couple’s finances, and for couples with children, the living arrangement that would be most beneficial to the children.

How Finances Are Handled during a Divorce?

 

  • California follows a community property system which means that all property and debts acquired during marriage are owned equally by the couple and is divided equally at divorce. This includes all income earned during marriage as well as real and personal property acquired during marriage.

  • Community property does not include property such as inheritances, gifts and assets owned or earned before marriage or after separation. It can get complicated if separate property was commingled with community property during the marriage.

  • Questions to address related to finances include but are not limited to:

    -Who will be responsible for finances during and following the divorce?

    -Who will be required to pay support and for how long?

    -How will assets and liabilities be split?

    -Who will live in the family home while the divorce is pending?

    -Who will get the family home? Will it be sold?

    -How do we divide our retirement accounts?

    -What if our property is held in a trust?

How Children Are Affected in a Divorce?

 

  • Courts begin with the presumption that after a divorce, frequent and continuing contact with both parents is best for a child. Courts will generally approve a parenting plan that the parents agree upon. If the parents are unable to agree, the court will order the parents to attend mediation with Family Court Services. If the parents are not able to reach an agreement in mediation, the court will decide on how the parents will share time with the child(ren) during and after the divorce.

  • California parents are required to support their children, even after divorce. The amount of child support generally depends on the parents’ respective income, deductions and resources as well as the time each parent spends with the children. Child support is typically determined using a formula. In some cases, the courts will attribute (or impute) income to a parent with capacity to earn more than his or her actual income earned.

    Click here to visit the Department of Child Support Services’ Guideline Calculator

  • Questions to address related to finances include but are not limited to:

    -Where will the children reside during separation or following the divorce?

    -What if we don’t agree on where to enroll our children for daycare or school?

    -Do the children need to change schools?

    -Following the divorce, how will the parents decide on important issues relating to education, health, religion and overall upbringing?

    -What if I want the final say over our children’s medical issues?

    -What parenting plan will cause the least disruption to the children’s routine that will provide for frequent and continuing contact with both parents?

    -What parenting plan is most appropriate for our children given their ages?

    -Is a joint physical custody arrangement possible?

    -What if I want the final say over our children’s medical issues?

    -What if one of the parent(s) has a problem with substance or alcohol abuse?

    -How does the mental health of a parent affect the welfare of the children?

    -What if the other parent is involving our child(ren) in the conflict?

    -How does domestic violence affect child custody issues?

    -Who pays for a child’s healthcare needs, childcare, or private school?

Other Resources

With so many practical and legal issues to consider, it is in the client’s best interest to work with a skilled, California Certified Family Law Specialist, and experienced San Francisco/East Bay Area divorce attorney before filing for divorce.

At Candelaria LLP, we recognize that each family has unique needs and our office is prepared to work with you to find solutions to address your goals and interests. We are ready to serve you.