Family Law & Divorce

California Divorce Basics

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.

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.

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.

Fault isn’t entirely irrelevant — if your spouse abandoned the family or was violent, the court may consider those facts in dividing property or awarding alimony. If your spouse wasted community funds — for example, on gambling or on an affair — a judge may order your spouse to reimburse you.

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.

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.

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.

In the 2015 Obergefell v. Hodges case, the U.S. Supreme Court declared same-sex marriage legal nationwide. Now all Americans — regardless of gender or sexual orientation — can exercise their right to marry anywhere in the U.S.. As a result, all states must recognize same-sex marriages validly performed in other jurisdictions, and same-sex married couples have the same right to obtain a divorce as opposites-sex married couples.

In California, any married couple (same-sex or opposite-sex) can get a divorce as long as they meet the state requirements, including the residency requirement mentioned above.

California is one of a handful of states that continues to offer and recognize domestic partnerships. Registered partners may be able to dissolve their relationships within six months of filing a Notice of Termination of Domestic Partnership with the California Secretary of State. If either partner contests the termination before the six months is up, then the couple will have to go through the traditional divorce process.