California Divorce Laws- Dissolution of Marriage

Child Custody Laws in California

If you remember anything from this site, remember that children are truly the innocent parties in any parental dispute, and deserve to be protected and considered before your interests [We know you know,

but it deserves to be repeated]. Accept that an overall Parenting Plan will become a part of the final divorce. The only question will be whether you get an agreement with your spouse, or the court imposes a plan.

California child custody laws have established what is known as a 'joint custody' law for the determination of where and with whom a child will live. Family Court Judges are encouraged to award joint legal custody to both parents. Child custody laws in California define joint custody as: where both parents have a right to make decisions concerning their children, such as education, medical treatment and religious instruction and affiliation. Judicial preference is for both parents to be involved with important decisions with their children in those same areas of education, medical treatment and religious instruction and affiliation. Judicial preference is toward joint custody unless conditions exist that would make such a ruling harmful to the child (abuse, poor parenting skills, etc). You will be given a chance to create and agree (with your spouse) on a Parenting Plan. To help in that regard, it pays to use a Child Custody Schedule as part of a Parenting Plan Template.

Download California Divorce Forms

Courts can and do award 'physical custody' (or legal custody) to one parent. The parent not granted primary child custody, based on custody laws in California, is usually granted secondary custody, or 'visitation'. If one parent is dead, is unable or refuses to take custody, or has abandoned the child, the other parent is entitled to custody of the child. For comparison's sake, be thankful you're not in Alabama (perhaps you're already thankful). In Alabama for example, if the Mother abandons the children, the Father does not automatically get custody and must wait until they are seven years old before that happens. Wow huh? The family court will proceed in child custody cases under the premise of the 'best interest of the child'. Whether you are successful in agreeing to a Parenting Plan or Child Custody Agreement, or the family court has to impose its own shared parenting schedule, the factors that get considered by the court are:

1. The health, safety, and welfare of the child,
2. Any history of abuse by one parent or any other person seeking custody.
3. Parameters are in place to deny custody to those persons who have placed the child or the other parent in harm's way. Harms way can be broadly defined as abuse, use of drugs or misuse of alcohol, domestic violence or any other behavior that causes the child to be at risk.

A word on child custody modification: Don't be lulled into a false sense of security that you will be able to change the child custody agreement and/or the terms of it once the court orders one for your situation. The court order makes both parties legally bound to the terms, and persistent violations can land the violator in court with possible contempt of court charges. Further, the court order is difficult to modify once put into effect, and requires the petitioner to take the ex to court and prove unusual circumstances have occurred to warrant the modification. These issues strengthen the case to get a Parenting Plan and Child Custody Agreement (described above) between you and the ex in place so that the court doesn't have to.        

California Child Support

If you only remember one thing from this page, remember that you can get the bulk of your divorce done professionally, completely, and at a much lower cost than full-service legal advice, by using two of our partners: Custody XChange© for Parenting Plans, Child Custody and Visitation Schedules, and The QdroDesk, professional software to accurately and fairly divide retirement assets like a 401(k) or 403(b).

State divorce law allows parents the opportunity to agree on the care of their children once they are divorced through a Parenting Plan, Visitation Schedule and a Custody Agreement. Should the parents be unable to reach agreement, the family court will impose its own terms. You may not like that version, so do your best to come to an agreement. It doesn't mean you must merge your parenting styles to reach agreement; just that you should agree how California child support laws will be applied.

California divorce laws employ a mathematical formula to compute child support payments, known as 'Income Shares'. The family court can require either or both parties to pay an amount “reasonable and necessary” for the support of any minor children of the marriage. California code requires that a child support payment be paid by the withholding of income (wage garnishment).

Family Courts follow a uniform guideline determined by California divorce laws, and adhere to the following principles:

	A parent's first and principal obligation is to support his or her minor children according to the parent's circumstances and station in life.
	Both parents are mutually responsible for the support of their children.
	The child support guideline takes into account each parent's actual income and level of responsibility for the children.
	Each parent is required to pay for the support of the children according to his or her ability.
	Children should share in the standard of living of both parents. Child support may therefore appropriately improve the standard of living of the custodial household to improve the lives of the children.
	It is presumed that a parent having primary physical responsibility for the children contributes a significant portion of available resources for the support of the children.
	Child support orders must ensure that children actually receive fair, timely, and sufficient support reflecting the state's high standard of living and high costs of raising children compared to other states.

CA child support laws provide that in cases where a marriage annulment or marital annulment is sought, and there are children of the marriage, that those children be afforded the same rights, protections and parental financial support, including that the children are not considered illegitimate offspring of the parents, that other children of the state receive. The takeaway here is that when an annulment of marriage occurs, it doesn't make the children in any way illegitimate.

The family court will make decisions for establishing a child support payment plan based on standard criteria supplied by the parents. Among the considerations the family law judge uses are: income from all sources such as wages, tips, commissions, bonuses, self-employment earnings, unemployment benefits, disability payments, workers’ compensation, interest payments, dividends, rental income, social security or retirement benefits, as well as any other payments or credits such as prize money or lottery winnings.

You can receive a child support payment in one of three ways. 1. Direct Deposit to your own checking or saving account; 2. Electronic Payment Card (EPC) – similar to a debit card or 3. by paper check. CA family law allows that the receiver of child support can elect any one of these three methods of receipt, regardless of how the payor pays. Should there be a legal separation first, the receiver of child support can begin the electronic transfer immediately with the help of the family court. To get an idea about what child support payment will be due, see the California child support calculator. A secondary child support calculator is offered here.

Provision for medical coverage is a common feature in a final parenting plan, assigning responsibility to pay the premium to one or both parents. A wage assignment (money taken from a paycheck) is frequently used to cover this cost.

Child support enforcement receives the same high priority in CA that it does in other states. CA can levy income (garnish wages), use bank levies, license suspension or denial (driver’s, recreational, occupational), property liens, passport denial, interception of state or federal income tax refunds and lottery winnings, or garnishing unemployment benefits, state disability benefits, or workers’ compensation benefits. If the paying parent relocates out of state, the family court will work with the other state to coordinate recovering the child support payments due and into the custodial parent's hands.

Are you just starting out with divorce, and need a blueprint or guidance, without it costing an arm and a leg? California child support laws got you confused? You will be well served by developing your own Parenting Plan, Visitation Schedule and Child Custody Schedule. If you don't develop your own plans, the court will give you its version, and you may not like that plan.

Parents that construct and agree to their own Parenting Plan can deviate from the total child support payment called for in family law, but their plan must meet certain conditions for it to be approved by the court. Those conditions are:

	They must know fully their child support rights,
	They must know the guideline child support amount,
	Are not pressured or forced to agree to this child support amount,
	Are not receiving public assistance,
	Have not applied for public assistance,
	Think that the child support amount is in the best interest of the child(ren), and
	Have a judge approve the amount of child support payments.

Child Visitation
Co-Parenting

California divorce laws encourage judges to award joint 'legal custody' to parents. The term visitation refers to the non-custodial parent's time co-parenting the children separately from the ex-spouse. This means that both parents have a right to make decisions concerning their children, such as education, medical treatment and religious training.

Family law confers visitation rights to the non-custodial parent. You will have an opportunity to create a Parenting Plan, Visitation Schedule and Parenting Schedule with your dear spouse. Should that be unsuccessful, the Family Court will decide each party's parenting time. The court also has the power to award co-parenting time, or 'physical custody' to one or both parents. The parent that is not awarded physical custody usually is granted "secondary physical custody" or visitation rights. Non-custodial parents often will get specified periods of time consisting of alternating weekends, one evening per week and one-half of the children's school vacations. Make every effort to reach an agreement with your spouse, as the state's plan may not be your best option.

Over the last ten years, courts in California have been dealing with the right of a custodial parent to move with the children to another metropolitan area or out of state. The California State Supreme Court recently decided a case that settled this controversy, softening its stance on moving children from the non-custodial parent. The court takes into consideration what each parent wants, what the child wants (if the child is old enough and/or mature enough), which parent has been the primary caretaker and the parenting abilities of each parent. Any reported abuse is also taken into consideration.

Couples should focus on the visitation and shared parenting schedules. Include drop-off and pick-up times and locations. Make certain both parents have access to school records, medical records, teachers and activities. Define when vacations begin and end. Share birthdays. Plan summer visitation. Above all, be considerate. If you and your spouse cannot agree on shared parenting, the court will award the non-custodian, in most cases, every other weekend, one or two nights per week (not overnight), alternating holidays, Mother's and Father's Days, and a month in the summer.

In cases where parents are able to agree on a Parenting Plan and Child Visitation, California family law provides that they may use the collaborative law process to complete their effort to get divorced. Collaborative law can be described as a process where both attorneys (and other professionals) agree in writing to use their best efforts and to make a good faith attempt to resolve disputes on an agreed basis without resorting to adversary judicial intervention. This process generally reduces the adversarial nature of a dissolution and often lowers legal costs. 

Making false claims

Should there be an accusation of child sexual abuse by one parent against the other, and the family court determines that such accusations have no merit, the court can order supervised visitation or limit a parent's custody or visitation to that parent making the unproven accusation.

Child's preference

If a child is of sufficient age (14) and capacity to reason so as to form an intelligent preference as to custody or visitation, the court will consider, and give due weight to the wishes of the child in making an order granting or modifying custody or visitation.

Be aware that you have to guide your side of the divorce. Don't rely that your attorney will think of everything. You set the course; your lawyer navigates. If you anticipate any problems with custody or visitation, we suggest you own Child Custody Strategies

Carrot and the Stick - If you are concerned that your ex-partner may not live up to his or her end of the child visitation bargain, and you want to keep close track of all parenting times, activities and missed visits, Custody XChange© is the ideal tool for you. Custody XChange© offers, among other things, an on-line calendar for tracking and journaling parenting time. You can send to your ex the calendars for upcoming months to prompt him or her to take good parenting as serious as you do, and at the same time demonstrate that you are keeping close track of all parenting time interactions. If he or she knows there is documentation, the game playing and threats of custody battles tend to go away. You now have control.

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Spousal Support
Alimony
Maintenance

The longer your marriage lasted, the more likely that alimony will be awarded. Spousal support (alimony) can be established in a prenuptial agreement, it can be mutually agreed upon by the parties and presented to the court during the preliminary phase, or if no agreement can be reached the court will consider the facts as presented and award it based on the financial status of each of the parties and the nature of the lifestyle enjoyed by the couple during the marriage. Courts can consider the following circumstances when making an alimony determination:

	The earning capacity of each part,
	The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party,
	The ability of the supporting party to pay spousal support, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living,
	The needs of each party based on the standard of living established during the marriage, the obligations and assets, duration of the marriage, age and health of the parties and any documented evidence of domestic violence. [There are other ancillary considerations. See Family law in California].

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Grounds For Divorce

California code specifies grounds for divorce that can be summed up in four words: irreconcilable differences or crazy. Either there's no hope of getting along, or someone is a nut job. Dissolution of the marriage or legal separation of the parties may be based on either of the following grounds:
 
Irreconcilable differences, which have caused the irreversible breakdown of the marriage.
Incurable insanity.

California Family Code Section 2313 states: 'No dissolution of marriage granted on the ground of incurable insanity relieves a spouse from any obligation imposed by law as a result of the marriage for the support of the spouse who is incurably insane, and the court may make such order for support, or require a bond therefore, as the circumstances require.'       

Marriage Annulment
Marital Annulment

	Incest- (consanguinity in other states) where one marries a blood relative;
	Bigamy- knowingly marrying more than one person,
	Underage- below age 18 years at the time of marriage or registration of domestic partnership and did not obtain parental consent or a court order permitting the marriage.
	Unsound Mind- could not and has not formed the intent to marry or registered due to a mental condition.
	Fraud- deception regarding a significant matter that led to the marriage or the partnership.
	Force- threats or acts of harm were used to force one spouse or partner into the marriage or domestic partnership.)

Should you file divorce papers for an annulment, and the court agrees that you have proven grounds for an annulment, a nullity will be declared, and will have the effect of declaring that no marriage had ever come into being.

California Family Law places time restrictions on how long a person has to file for an annulment on certain conditions that caused the action to be filed.

	The Party was under the age of consent (18) with no parental consent- Four year limitation to begin a proceeding, from the date of the the marriage
	For a parent or guardian of an underage child, an action may be brought at any time before the married minor has arrived at the age of legal consent
	If a party was of unsound mind when getting married, an action to annul the marriage must occur within four years
	In cases where fraud is alleged, an action for annulment must be brought within four years after the discovery of the facts constituting the fraud
	If consent was obtained by force, within four years
	If either party was, at the time of marriage, physically incapable of entering into the marriage state, and that incapacity continues, and appears to be incurable, one has four years in which to file for annulment

Mediation
Marriage Counseling

If it appears on the face of the petition that custody is a contested issue, the court will order mediation to assist the parties in settlement of those contested issues, and to assist in the ordered development of an agreement that assures the child of close and continuing contact with each parent. Marriage counseling per se won't necessarily be considered for some couples. The paradox surrounding marital counseling is that it probably should have happened before this, but for whatever reason, did not. Counseling in this instance isn't geared toward reconciliation but more toward agreeing on a path to the future (which usually means divorce). 

In cases where child custody or visitation is in dispute, the family court will order a mediation hearing, which will be held in private and remain confidential. Where mediation is required to settle a contested issue of custody or visitation, the agreement will be limited to the resolution of issues relating to parenting plans, custody, visitation, or a combination of these issues. Striking an agreement using a Parenting Plan and Child Visitation Schedule so that mediation won't be necessary will save you a great deal of time and money.     

Marriage Separation
Legal Separation

Securing a legal separation does not terminate marital status of the parties as husband and wife in California. A resident may initiate legal separation proceedings on the same grounds as divorce, although a separation from marriage does not change nor terminate the marital status like a dissolution does. It is an alternative to divorce and is generally sought upon breakdown of the marriage where for religious or other personal reasons the petitioner does not want the legal status relationship absolutely severed. "Other reasons" are most often to retain eligibility for medical insurance that would otherwise be lost by a termination of the marriage. A judgment of legal separation (sometimes referred to as a marital separation) will determine any and all support, child custody, visitation and community property rights and obligations in the same fashion as does a divorce.  A legal separation will typically resolve all issues excepting the termination of the marriage

How to file for separation

A separation from marriage is similar to a dissolution, as you must complete a petition (reasons for divorce), prepare a summons, and then file the divorce papers with a filing fee (about $340) with your local county court house. You'll need to have your spouse served (not by you) and provide a endorsed copy of the petition with a blank response form.

Your spouse has 30 days to respond before a default can be declared. Once your spouse responds, either one of you can take the next legal step to getting a Legal Separation. Some in the legal profession suggest you pay close attention to how your spouse gets served. CA has a how to process serve guide to make sure you don't make mistakes. Once you are legally separated, the county clerk can advise you on the next divorce procedures toward a dissolution.   

Waiting Period

Six months must have elapsed from the date the respondent was copy of the summons and petition (or the date of appearance of the respondent), whichever comes first.   

Visitation
Grandparents Rights

Federal law permits grandparents the right to petition for visitation. California statutes back that up with provisions to help GrandMa see her grand kids. Grandparents may petition the court for visitation privileges ether during or after the divorce process. If your adult child is divorcing, you'd be wise to discuss with him/her your desires of some grand parenting time so it can be included during the divorce. After the divorce decree, a new petition for visitation could get pricey.      

Divorce Settlement
Distribution of Assets

California is a community property state. That means all property accumulated by a husband and wife during their marriage becomes joint property even if it was originally acquired in the name of only one partner. During your divorce, you will be given an opportunity to reach a divorce settlement. Should you be unable to reach a divorce settlement, one will be imposed upon you by the court. Keep in mind that a little compromise goes a long way. Haggling over a picture, painting or gift seemingly important to you both can be costly and can throw the decision to a judge who will not have as much 'emotional involvement'. Do what you can to fashion a divorce settlement. If you cannot, the family court in California will divide the community property of the parties equally after setting aside to each spouse that spouse's separate property. Property can be non-community property if the property is separate by title or by written agreement by the two acknowledging its non-community property status.

eHow has this to say about divorce settlements in California:

Marital Property vs. Non-Marital Property

"California family law has determined that all property acquired during the duration of the marriage is to be considered marital property. However, any gifts or inheritances given to a specific spouse during the course of the marriage will be excluded from this classification and will be considered non-marital property. By this definition, any property that was acquired before the marriage would also be exempt, unless the property was transmuted during the marriage. All non-marital assets are excluded from any court-led division of property under California code."

Settlement Agreement

"California property settlements, in the form of settlement agreements, are written contracts outlining the terms of property division, general rights, and other decisions associated with the dissolution of the marriage. California family law as it relates to divorce does recognize the authority of a marriage settlement agreement in a divorce.

If the agreement was merged and incorporated in the decree, or court decision, the agreement will essentially become a court order and be enforceable by law. A couple may also request that the agreement simply be merged, but not incorporated into the decree; this would make the agreement a simple contract between the two spouses which leaves room for later modifications."

California family courts generally abide by the divisions of property outlined in the property settlement agreement. The court reviews the document in order to verify that it is a fair agreement in which neither party was forced or coerced during its creation. It is within the rights of the court to request financial affidavits in order to further verify the fairness of the terms.

Duration of the Property Settlement Agreement

Once accepted by the courts, the property settlement agreement becomes a legal document that is legally binding for the duration of time set forth in the document. This generally means that it is binding indefinitely. However, changes and amendments to the document are admitted when both parties agree to the changes.

A court order may also amend the document, unless the document specifically states that it is not subject to any future court orders. This of course becomes less clear-cut if new findings indicate that any form of deceit or lack of full disclosure was present when the agreement was made.' 

If the total value of your community property is less than $50,000 and that property's ownership is in dispute, the family court may order its division be decided by arbitration. In cases where property or liability is discovered after the final judgment for dissolution, a party may petition the court for relief. The Family Court will divide these discoveries by half.

Are you concerned about how, or even IF, retirement account assets in your name or your spouse's name will get divided? You ought to be if you aren't using an attorney. And even if you are, for the cost of less than an hour of legal billing, you can get your own evaluation in case the MUCH more expensive one you get through the divorce process is an outlier. Consider an accurate but affordable method using The QDRO Desk software. Family Law Attorneys use the The QDRO Desk, their clients do, and Pro Se people do too.     

Residency Requirements   

CA code dictates that at least one of the parties to the divorce action in California must have established residency in the state for at least six months prior to the filing of the action and a resident of the county in which the action is filed for at least three months prior to the action being filed.   

How to file for divorce yourself- DIY Divorces

So you are considering a divorce Pro Per (without a lawyer)? Most experts suggest against representing yourself, but if your situation is simple, with no kids and few if any assets, or you are good with this kind of stuff, here's how to file for divorce:

California has two types of divorce (also called dissolution); Summary and Regular. A Summary Dissolution is appropriate for those with no kids, no real estate, little or no property and debt and the parties agree on everything. With this process there is no hearing nor a trial. A Regular Dissolution is for couples who have disagreements on issues. A Regular Dissolution has a hearing unless you both decline one. Your divorce will be contested or uncontested. If you file, and your spouse doesn't respond, it is uncontested. If your spouse does respond, it is contested.

How much does it cost?

To file a summary dissolution you will have to pony up $395.00. If your spouse responds, it's another $395.00. You'll need a notary, and if you go to where you bank, they should do notarization for free.

The fees associated with filing your divorce papers are due up front, although you may be able to get the fees waived if you qualify. Speak to the County Clerk's Office when you file.

You have to pay to have your spouse served (you can't serve your spouse yourself). That can cost between $35-$100.00. Call your local Sheriff's Office or do a Google search for process servers in your area.

Where do you file?

Call your County Clerk's office and ask them where to bring the forms. Ask them if they require a local form in addition to the ones below.

What forms will you need?

Petition - Divorce form
Summons form
Divorce Settlement Agreement (includes the Parenting Plan you draw up)
Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) form (if there are children from the marriage) For your convenience, download California Divorce Forms here. Don't forget to make several copies of each completed form.

What are the steps?

If your spouse agrees to uncontested, and doesn't respond, you'll be divorced in a matter of weeks. If there is a spousal reply, a hearing will get scheduled and you'll have to hash out your differences. A word on the Settlement Agreement- If there is a place where the process gets bogged down, it is resolving marital settlement (asset) issues. They must be resolved and agreed upon to move your DIY filing to a successful conclusion (without legal fees). The issues are:

Equitable Distribution of Assets
Equitable Distribution of Liabilities
A parenting or co-Parenting Plan
Visitation Agreement details
Child Support
Spousal Support (Alimony)