Facts About Family Law

Q: What Are the Grounds for Divorce (Dissolution) in California?

A: California is a “no fault” divorce state. In plain English, neither side must (or will be allowed to) file for divorce on the basis of “cruelty,” “bad behavior,” “infidelity,” or any other such grounds.

The grounds for divorce in California are straightforward:

– Irreconcilable differences. Neither party has to offer any evidence of such differences. It is a box you check on the divorce filing, known as a petition.

– Incurable insanity. In over 30 years of practicing family law, I have never seen this used. There may be a few rare instances when this ground is used as a reason for filing a petition for dissolution.

NOTE: There is no such thing as a defense that can stop the divorce. If one party wants a divorce, he or she will get it.

Q: Are There Residency Requirements for Filing for Divorce?

A: One of the two parties (that is what a person is called in a divorce – a “party”) must have lived in California for six months prior to the filing and in the county you are filing in for three months.

If neither party meets these requirements one party can file for a legal separation and turn that filing into a divorce proceeding once the residency requirements have been met.

Q: What Can I Accomplish by Filing for a Legal Separation?

A: You will remain legally married while legally separated. Much as in a divorce, however, you and your spouse can negotiate and sign an agreement or go to court on almost all the issues that you could during a divorce, such as dividing the family property and determining child and spousal support and child custody. There may be tax, financial, or religious reasons for not filing for divorce.

Q: Once I Have Filed for Divorce How Long Will the Process Take?

A: That is one of many “it depends” answers in family law. The least amount of time that a divorce action can take is six months. But that is hardly ever the case. If there are children involved, a home, a pension plan, and other assets, they all have to be sorted out between the parties and their lawyers. A recent study indicated that a contested divorce (that is, a divorce with issues in it, because as noted above there is no defense to a divorce if one party wants it) on average takes up to 36 months.

Q: How is Spousal Support (Also Known as Alimony) Determined in California Courts?

A: Again, because California is a no fault jurisdiction, neither party will be financially punished for what the other party may consider “bad deeds” such as infidelity.

Spousal support is either negotiated between the parties or determined by a judge after a contested (and usually costly) hearing. The party who is the higher income earner and/or who in addition has more separate assets is the person who usually pays the support.

“Temporary support” is awarded by the court until there is a final settlement or court order. California courts use a computer program (DissoMaster) that calculates child and supposal support based on the income of both parties.

Permanent support orders, however, are established by considering a number of factors including length of marriage, age and health of the parties, and earning capacity and employment history of the parties (the factors are listed in Family Code section 4320). The party awarded spousal support pays income taxes on it and the party paying the support can deduct the award from his/her income taxes.

Q: How is Child Custody Decided in a Divorce?

A: The parties, as is possible in every issue in a divorce, can work together to reach a solution as to the following:

– Will the parents have joint custody of the children?

– What will that include as far as decisions on schooling, religion, medical care, visitation and so on?

– Or will one parent have primary custody of the children and the other have set visitation hours?

If the parents cannot work together to reach a plan for their children, a judge will make the decision as to custody arrangements.

From my experience it is far better for everyone if the parties work together to make the custody and visitation arrangements for the children.