California Divorce Basics
Divorce in California is called a Dissolution of Marriage.
Residency Requirement:
In order to file for divorce in California, at least one of the parties must have resided in California for at least six months prior to filing, and in the county where he/she plans to file for the divorce, for the prior three months.
Filing:
A Petition for Dissolution of Marriage and Summons may be filed with the Superior Court in the county where one of the spouses has resided for the past three months. The Petitioner, spouse who is filing, must serve the Respondent, other spouse, with copies of the Petition and other paperwork.
After filing for divorce, there is a mandatory six month waiting period before the divorce may become final.
Summary Dissolution:
Summary Dissolution is a streamlined process for obtaining a divorce. To qualify for this process, the following requirements must be met.
The residency requirement is met;
The couple has been married no more than five years on the date the Joint Petition for Summary Dissolution of Marriage is filed;
There are no children, either adopted or born before or during the marriage and the wife is not currently pregnant;
Neither the couple, nor either spouse owns or has an interest in any real estate;
The couple does not owe more than $6,000 for debts acquired since the date of the marriage, excluding auto loans;
There is no community property worth more than $38,000, excluding vehicles;
Neither spouse has separate property worth more than $38,000, excluding debts on the property or auto loans;
Both spouses agree that neither spouse will ever get spousal support; and
Both spouses have signed an agreement that divides their property and debts.
With a summary dissolution, there is no trial or hearing and after obtaining a divorce through this process, neither party can ask for a new trial, or appeal the judgment to a higher court.
Spouse’s Name:
I an action for dissolution of marriage and/or annulment, if a party requests it, the court will restore the birth name or former name of the requesting party, whether or not the request was made in the original Petition.
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Domestic Partnership
Domestic partnerships are established by California law when two partners of the same sex choose to share one another’s lives in an intimate and committed relationship of mutual caring. The partners may enter into a registered domestic partnership by filing a Declaration of Domestic Partnership with the California Secretary of State.
Registered domestic partners have the same rights, protections, and benefits and are subject to the same responsibilities, obligations, and duties under law as are granted to and imposed upon married spouses.
Residency Requirements for Dissolution:
Residency requirements to file for dissolution of domestic partnership are somewhat different from those for married couples. If the domestic partners registered in California, they have already agreed to the jurisdiction of the California courts to end the domestic partnership, even if they move away or had never lived in California. However, if they registered a domestic partnership in a different state, a dissolution of domestic partnership can only be filed if one of the parties lives in California. Additionally, one of the parties must have lived in California for at least six months prior to filing and in the county where the dissolution will be filed for at least three months prior.
Filing:
A Petition for Dissolution for Domestic Partnership and a Summons may be filed with the Superior Court in a county where one of the parties resides. The Petitioner, domestic partner who is filing, must serve the Respondent, other partner, with copies of the Petition and other paperwork.
Summary Dissolution for Domestic Partnerships:
Domestic partnerships are also eligible for summary dissolution, if the partners meet the following requirements:
The residency requirement is met;
The couple has been in a registered domestic partnership no more than five years on the date the Notice of Termination of Domestic Partnership is filed;
There are no children, either adopted or born before or during the partnership and neither partner is currently pregnant;
Neither the couple, nor either partner owns or has an interest in any real estate;
The couple does not owe more than $6,000 for debts acquired since the date of the domestic partnership, excluding auto loans;
There is no community property worth more than $38,000, excluding vehicles;
Neither partner has separate property worth more than $38,000, excluding debts on the property or auto loans;
Both partners agree that neither one will ever get domestic partner support; and
Both partners have signed an agreement that divides their property and debts.
If these qualifications are met, the couple may file a Notice of Termination of Domestic Partnership with the Secretary of State rather than appear in court. Either partner may revoke the termination within six months from the date the Notice is filed for any reason, by filing a Notice of Revocation of Termination of Domestic Partnership with the Secretary of State. A copy must be sent to the other partner by first-class mail.
If this does not occur, the domestic partnership will automatically end six months after the date the Notice of Termination of Domestic Partnership is filed with the California Secretary of State. With a Summary Dissolution, there is no trial or hearing and couples who use this method to terminate their domestic partnership do not the right to ask for a new trial or the right to appeal the case to a higher court.
Legal Grounds for Divorce
Under California law, there are only two grounds for divorce:
Irreconcilable differences, which have caused the irremediable breakdown of the marriage; and
Incurable insanity, only with proof, which includes competent medical or psychiatric testimony that the spouse was incurably insane when the petition was filed, and remains so.
Annulment
In an annulment, the court determines that a marriage or domestic partnership is not legally valid. The following conditions or situations render a marriage or domestic partnership invalid, void or voidable.
Incestuous unions;
Bigamy;
Unions created by force, fraud, physical or mental incapacity; or
One spouse was legally too young to marry or enter a domestic partnership.
To file for an annulment, one party must reside in the county where the papers are filed at the time the case is started. There is no required length of residency. To obtain an annulment, you must request a hearing with a judge.
Support, custody, property division and other related orders are available in annulment cases.
Property Division
California is a community property state. Unless there exists a written agreement or an oral stipulation in open court between the parties, the court shall divide the community property of the parties 50/50. Separate property will not be included in the property allocation.
Separate property typically includes all property owned by the spouse or domestic partner prior to marriage or domestic partnership; all property acquired during the marriage by gift or inheritance; and all rents, issues and profits derived from the separate property.
Spousal and Partner Support
When a couple separates or divorces, the court may order spousal or partner support. The judge reviews certain criteria when determining this support, including the following:
The length of the marriage or domestic partnership;
The needs of each partner or spouse;
The age and health of each party;
How much income each one can earn and the earning capacity of each party;
Whether one party’s career was affected by unemployment, or by taking care of the children at home;
Whether one spouse or partner helped the other get an education, training, career or professional license;
Whether there was domestic violence in the marriage or domestic partnership;
Debts and property;
Whether there are minor children at home and if working outside the home would make it too hard to care for them;
The history of the way the couple handled money during the marriage or domestic partnership; and
The tax impact of spousal support (federal and state tax law does not recognize domestic partnerships.)
Spousal and domestic partner support typically ends when the court order or judgment decrees; when one of the parties dies; or then the receiving spouse or partner remarries or registers a new domestic partnership.
