Know the Laws: California
UPDATED January 2, 2017
Basic information about divorce in California.
back to topWhat are the residency requirements to file for divorce in California?
You or your spouse must have lived in the state of California for at least six months and must have lived in the county where the divorce is going to be filed for at least three months prior to filing for divorce, except in the case of same-sex marriages.*
Spouses of the same sex can get a judgment for divorce, nullity, or legal separation even if neither spouse is a resident of CA at the time the proceedings if:
- the marriage was entered in California; and
- neither spouse lives in a state that will dissolve the marriage (Note: If the state does not recognize the marriage, it is assumed that the state will not dissolve it).
In this case, the same-sex spouse would file in the superior court in the county where the marriage was entered.*
* Ann.Cal.Fam.Code § 2320
back to topWhat are the grounds for divorce or legal separation in California?
You can file for divorce or for legal separation in California based on either of the following grounds (reasons):
- Irreconcilable differences, which have caused the permanent breakdown of the marriage; or
- Permanent legal incapacity to make decisions.* For this ground, there needs to be proof (competent medical or psychiatric testimony) that the spouse was at the time the petition was filed, and still is, lacking the legal capacity to make decisions.**
* Ann.Cal.Fam.Code. § 2310
** Ann.Cal.Fam.Code. § 2312
back to topCan I get alimony? What factors will a judge consider?
Alimony is financial support paid by, or to, your spouse. The goal of alimony in California is to have the party receiving alimony be self-supporting within a reasonable period of time. For marriages that lasted less than 10 years, a “reasonable period” is considered to be half of the length of the marriage.* However, the judge is not limited by this and may order support for a shorter or longer period of time.**
The judge will consider certain factors to determine a fair alimony award. These factors include, but are not limited to:
- The extent to which the earning capacity of you and your spouse is sufficient to maintain the standard of living that was established during the marriage, while considering:
- The marketable skills you might have;
- The job market for those skills;
- The time and cost required for you to get the necessary education or training to develop those skills;
- The possible need for retraining or education to get more marketable skills; and
- How much your present or future earning capacity may have been restricted based on periods of unemployment during the marriage for the purpose of you taking care of household duties;
- The amount that you contributed to your spouse getting an education, training, career position, or a license;
- The ability of your spouse to pay alimony, considering his/her earning capacity, earned and unearned income, assets, and standard of living;
- The needs of you and your spouse based upon the standard of living established during the marriage;
- The obligations and assets of you and your spouse, including non-marital property;
- The length of the marriage;
- Your ability to work without interfering with the interests of the children in your custody;
- The age and health of you and your spouse;
- The immediate and specific tax consequences to you and your spouse;
- Hardships facing you and your spouse;
- Documented evidence of any history of domestic violence committed by you or your spouse against each other or against a child of you or your spouse. The judge will also consider:
- the emotional distress resulting from the violence committed against you (the person receiving alimony) by your spouse;
- any history of violence that you (the person receiving alimony) may have committed against your spouse (the person paying alimony); and
- Any other factors that the judge determines are fair and just.***
Note: If the person requesting alimony has been criminally convicted of a violent sexual felony against his/her spouse within a certain timeframe, the judge cannot award the abusive spouse alimony. If s/he has been criminally convicted of domestic violence within the past 5 years, the judge will assume that alimony should not be awarded (but evidence can be presented to the judge to change his/her mind).**** For more information, see If my spouse was convicted of domestic violence or sexual assault against me, can I be ordered to pay him/her alimony?
* Cal. Fam. Code §§ 4320(l); 4336(b)
** Cal. Fam. Code § 4320(l)
*** Cal. Fam. Code § 4320(a)-(k),(n)
**** Cal. Fam. Code §§ 4320(m); 4324.5(a)(1), 4325
back to topIf my spouse was convicted of domestic violence or sexual assault against me, can I be ordered to pay him/her alimony?
It depends. If your spouse was convicted of attempted murder or solicitation of murder against you, the judge is prohibited from ordering you to pay any temporary or permanent spousal support or medical, life, or other insurance benefits or payments.*
If your spouse was convicted of a violent sexual felony against you and you file for a divorce within 5 years of the conviction and of any time served in custody, on probation, or on parole, you cannot be ordered to pay spousal support. It is possible, however, that the judge can allow both parties' attorney's fees and costs to be paid from the community assets - although you cannot be required to pay any of your spouse's attorney's fees from your separate property. In addition, you will be entitled to 100 percent of the community property interest in your retirement and pension benefits.** Note: For purposes of this law, the following crimes are considered violent sexual felonies:
- Rape (as defined in paragraph (2) or (6) of subdivision (a) of Section 261 or paragraph (1) or (4) of subdivision (a) of Section 262);
- Sodomy as defined in subdivision (c) or (d) of Section 286;
- Oral copulation as defined in subdivision (c) or (d) of Section 288a;
- Sexual penetration as defined in subdivision (a) or (j) of Section 289; or
- Rape, spousal rape, or sexual penetration, in concert, in violation of Section 264.1.***
If your spouse was convicted of an act of domestic violence against you within the five years before you filed for divorce, or at any time after you file for divorce, the judge is supposed to assume that you should not be ordered to pay him/her temporary or permanent spousal support. However, the convicted spouse can present evidence to convince the judge to change his/her mind and order the payment of support. For example, if the convicted spouse was actually the one who was abused by the other spouse (and has documented evidence to prove it), the judge can consider this.****
* Cal.Fam.Code § 4324
** Cal.Fam.Code § 4324.5(a)
*** Cal.Fam.Code § 4324.5(b); Cal.Penal.Code § 667.5(c)(3),(4),(5),(11),(18)
**** Cal.Fam.Code § 4325
back to topWhat are the basic steps for filing for divorce?
While divorce laws vary by state, here are the basic steps:
- First, you must meet the residency requirements of the state in which you wish to file.
- Second, you must have “grounds” (a legally acceptable reason) to end your marriage.
- Third, you must file divorce papers and have copies sent to your spouse.
- Fourth, if your spouse disagrees with anything in the divorce papers, he will then have the opportunity to file papers telling his side. This is called “contesting the divorce.” In this case, you will have to attend a series of court appearances to sort the issues out. If your spouse does not disagree with anything, he should sign the papers and send them back to you and/or the court. This is called an “uncontested divorce.” If a certain period of time passes and your spouse does not sign the papers or file any papers of his/her own, you may be able to proceed with the divorce as an uncontested divorce anyway. You should speak to a lawyer in your state about how long you have to wait to see if your spouse answers the divorce papers before you can continue with the divorce.
- Fifth, if there is property that you need divided, or if you need financial support from your spouse, you will have to work that out in an out-of-court settlement, or in a series of court hearings. Custody may also be decided as part of your divorce.
back to topWhere can I find additional information about divorce?
We hope the following links to outside sources may provide helpful information.
The California Courts website provides the following resources concerning divorce:
- information about summary dissolution;
- facts about annulment;
- information about spousal/partner support; and
- links to court forms that you may need if you wish to get a divorce in California.
WomensLaw.org is unrelated to the above organizations and cannot vouch for the accuracy of their sites. We provide these links for your information only.
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