If you're a California resident getting ready to file for divorce in the Golden State, here's the lowdown on the basics of divorce laws.
Legal Separation. There is no residency requirement for a legal separation. A legal separation has all the components of a divorce with one distinction. After a legal separation, you are still legally married. Like a divorce, all assets and debts will be divided, a parenting plan, child support and spousal support will be made as applies to your case. Legal Separations are not common, but they are done in cases that benefit both parties. Frequently done for health insurance and survivor retirement benefits.
Residency Requirement. Before you can file for divorce in California, at least one spouse must be a resident of the state for six months or 180 days. Once you've filed the divorce and delivered the paperwork to your spouse, you must wait at least six months from the date your spouse received the papers before the divorce can be finalized.
No Common Law Marriage. There's no common law marriage in California—you aren't married unless you obtained a marriage license and entered into a legal relationship, and you can't get a legal divorce unless you were legally married. It doesn't matter how long you've lived together or whether one of you took the other's name.
Grounds for Divorce. California is a no-fault state, which means that you won't argue for a divorce based on the other person's wrongdoing. Most often, the basis for a divorce is “irreconcilable differences” that have caused the marriage to break down. Fault isn't entirely irrelevant, though—if your spouse abandoned the family, committed adultery, or was violent, the court may consider those facts in dividing property or awarding alimony.
Property Division. California is one of only a handful of states that use a community property system, meaning that all of the property and debts that you acquired during your marriage are shared equally between the two of you at divorce. That includes income of all kinds, savings from income, property, and anything else that you own.
However, it doesn't include either spouse's separate property, which includes inheritances, gifts, and property that the spouse owned before the marriage, as long as the separate property wasn't mixed up with the marital property. These issues can be highly litigated because there is a lot at state. Whether your parent's made the down payment on the community residence was a gift to you or the community. If it was a $100,000 down payment, then if its separate property, then you receive the first $100,000 from the house sale or each spouse receives $50,000 if it's a joint gift.
Child Custody. California courts begin with a presumption that it's best for a child to have frequent and continuing contact with both parents after a divorce. If possible, judges want to support joint custody arrangements. However, the details of the parenting plan will be determined by the children's best interests. If parents can agree on a parenting plan, the court will usually approve it. If you're not able to agree, you'll be ordered to attend mediation sessions, and if that doesn't work, the court will take over and the judge will decide how you'll share time with your children.
Reasons not to share the child usually involve drug and/or alcohol abuse, mental illness, domestic violence, child abuse, registered sex offender or other factors that a judge decides is important when determining what is best for the child.
Child Support. Like all states, California requires parents to support their children, even after a divorce. The amount of child support depends primarily on each parent's income and other resources, and how much time each parent spends with the children. Sometimes the courts will “impute” income to a parent who has the capacity to earn more than he or she actually is earning. Issues with self employed, owner operated businesses, bonus income, stock options and other issues require the experience of the Bacinett Law Offices.
Same-Sex Marriage and Divorce. Same-sex marriage is legal in California. It was also legal to marry during a period of 2008. The same rules apply to a same sex marriage as a divorce, community property, retirement, accounts, spousal support, attorney fees, etc.
Domestic Partnerships were available in California prior to same sex marriage. Couples could register as a domestic partnership. Any same-sex couple who registered or married in California at any time can get divorced in California, even if they don't live in the state any more.
The experienced Attorneys at the Bacinett Law Offices in San Diego, California, are well-familiar with California domestic partnership law with regard to both domestic partnership formation and domestic partnership termination. We possess a unique sensitivity with regard to difficult issues such as those involving children and domestic partnerships. Our attorneys are at the forefront of domestic partnership law and have helped many couples resolve their partnership legal issues. Contact us today for knowledgeable, understanding legal representation.
A same-sex couple or qualified heterosexual couple is eligible for a “domestic partnership” under California State law. Our firm is experienced in assisting same-sex and other qualified couples in preparing the necessary documents to file for a domestic partnership to secure their rights. Because this is a complex and frequently changing body of law, which can have serious personal and financial implications, we encourage you to seek our advice concerning your rights and responsibilities under this law, and to let us help you take control of how your relationships are structured. Our attorneys are prepared to explain the rights and obligations of couples entering into a domestic partnership or co-habitation agreement. Before entering a domestic partnership arrangement, we will help you explore all of your options and alternatives.
The State of California allows couples to file for domestic partnership registry. To qualify for domestic partnership the couple:
- Must have a common residence
- Cannot be married
- Cannot be in a domestic partnership with someone else
- Cannot be related by blood
- Must be at least 18 years of age
- Must be members of the same sex or one person must be over the age of 62
- Both must be capable of consent
If you qualify and are registered, you have several rights of domestic partners that were formerly reserved for married persons. Some of these expanded rights include:
- The right to use step-parent adoption procedures
- Health care and medical emergency rights
- Protections on the death of a partner
- Employment benefits
- Tax benefits.
As of January 1, 2005, the state of California recognizes community property in domestic partnerships, includes the right to spousal support, and establishes children who were born while the couple was in the domestic partnership as the children of both partners. The Declaration of Domestic Partnership can protect your rights and those of your children in times of family crisis. We are familiar with the differences between California and federal law regarding the rights of unmarried partners. We use our knowledge to advise clients about the choices they face. For more information about registered domestic partnership law, contact our office.