I understand that California is a community property state. What is community property?

Community property means that all property that the spouses acquire during the marriage belongs to the marriage partnership and is jointly owned by the spouses. The community property system is usually justified by the idea that such joint ownership recognizes the theoretically equal contributions of both spouses to the creation and operation of the family unit. Basic exceptions to general community property principles include property inherited by one spouse and property received as a gift. In those cases, there is a presumption that the spouse who inherited property or received it as a gift owns that property as his or her “separate property,” which is not subject to division. Also, it is possible for the parties to opt out of the community property system by entering into a valid prenuptial agreement.

May I opt out of the community property system?

Yes. By entering into a valid prenuptial agreement, it is possible to opt out of the California community property system. Prenuptial agreements have historically been frowned upon and are often difficult to enforce; however, in recent years, the courts have been more willing to uphold prenuptial agreements. Most of us remember San Francisco Giants slugger Barry Bonds’ prenuptial agreement making headlines. Many legal professionals were surprised that the court upheld Mr. Bonds’ prenuptial agreement. The Bonds decision, along with other recent prenuptial decisions, makes it clear that California courts are much more willing to find a prenuptial agreement valid than in the past. But careful planning, expert drafting, and strict adherence to the provisions of the prenuptial agreement are still necessary to ensure its enforceability.

I believe my spouse wants a divorce. Is there any harm in dating other people before the divorce is final?

California is a no fault state, which means that one spouse does not have to prove the other has done something wrong in order to get a divorce. Therefore, in very general terms, it is okay to date other people before the divorce is final. The real question is, “Is it smart to be dating other people before the divorce is final?” It depends. Sometimes, if one spouse is dating, it may make it more emotionally difficult for the other spouse to proceed with the divorce. Furthermore, if one spouse is dating, it may cause the other spouse to become suspicious as to when the dating relationship began. Again, because California is a no fault state, dating is generally irrelevant — unless a spouse has spent community funds on the person he or she dated during the marriage. In that case, the community could seek reimbursement for funds spent.

I have made substantially more money than my spouse during the marriage. I have heard that if we divorce, I will have to pay support for half the length of our marriage. Is this true?

No, not necessarily. This rule is a common misconception. In California, there is a statutory goal that a supported spouse becomes self-supporting within a reasonable period of time, generally presumed to be half the length of the marriage if the marriage was of short duration. There is no statutory definition of a marriage of short duration; there is only a presumption that if a marriage has lasted more than 10 years, it is a marriage of long duration. What all of this means is that the court will generally try to limit the amount of support to half the length of the marriage if the marriage is relatively short. For example, if the marriage lasted only two years, it is more likely that the court will have no problem terminating support after 12 months of payments. If, however, the marriage is hovering around the 10-year mark, it is much less likely that the court will automatically terminate support at half the length of the marriage. For those marriages that are truly long term, and if the court believes a support award is appropriate, it is possible that the court will order support indefinitely.

I am a domestic partner and I want to end my relationship. Do I have to get a divorce?

Couples who have registered with the California Secretary of State must now file for divorce. The process is the same as that for a traditional divorce, meaning that the legal termination of the relationship must be approved by the Superior Court. By state law, it takes a minimum of six months for termination of the partnership. Pending termination of the partnership, neither partner may register with another person.

Do I need to have a reason to get a divorce in California?

No. California was the first “no-fault” state in the country meaning that any person can file to end a marriage or domestic partnership without having to explain reasons for the need for the divorce (other than simply stating “irreconcilable differences”) nor is there a need to prove fault or “bad behavior” by the other party. For example, under most circumstances, one does not obtain a legal benefit if the other party has committed adultery.

I do not want a divorce but my spouse just served me with a Petition for Dissolution, is there anything I can do to fight it?

No. Once a person files for divorce there is really nothing that can be done to prevent the divorce aside from reconciling and terminating the divorce action.

How long will it take for me to get divorced?

Under California law, a judgment for divorce cannot be granted until at least six months have passed from the time of service of the Summons and Petition. Unless a couple agrees on absolutely everything it is very rare for a divorce to take exactly six months. It is impossible to predict with any accuracy how long an individual case will last since no two marriages or divorces are alike.

I lived with my significant other for many years, is this considered a common law marriage?

California does not recognize common law marriage for California residents unless the parties resided in another state prior to moving to California and the relationship satisfies the requirements for a common law marriage in one of the few states that still recognize them.

How do I get custody of my child?

Custody litigation is often emotionally challenging and financially expensive. Parties should make great efforts to reach an agreement on custody of their children outside of litigation. If this is not possible, then a court will determine if and how the parents share legal custody and physical custody, with legal custody meaning how the parents share major decisions regarding the health, safety and welfare of the children and physical custody meaning the actual amount of time each parent spends with the children.

In making decisions on custody, California courts will look to the “best interest of the child” when determining appropriate custody and visitation schedules.

What is the best interest of the child standard?

The best interest of the child standard is not a fixed formula. The courts look to a number of factors to determine what a child’s best interests are. Some of the factors used by the courts include:

  • The age of the child;
  • The relationship of the child’s parents and any other persons who may significantly affect the child’s welfare;
  • The capacity of each parent to allow and encourage frequent and continuing contact between the child and the other parent, including physical stress;
  • The preference of the child, if old enough to express a meaningful preference;
  • The duration and adequacy of the child’s current living arrangements and the desirability of maintaining continuity;
  • The stability of any proposed living arrangements for the child;
  • The child’s adjustment to the child’s present home, school and community;
  • The capacity of each parent to cooperate in childcare.

Can a father obtain custody?

As mentioned above, the “best interest of the child” standard is used by the courts to determine the most appropriate custody schedule for a child. The standard is gender neutral and the court’s will award custody to a father if it is determined that it is in a child’s best interest to do so. Most court orders are for joint physical custody, with the children spending more time with one parent than the other. However, there are many cases where the parents truly share physical custody of the children, having various schedules, including “week-on/week-off schedules” and schedules that are commonly referred to as “2-2-3 schedules” whereby each parent has the children two weekdays each week and Friday through Sunday are altered between the households every other week. Schedules vary by family and ultimately it is the court’s decision to determine what schedule is most appropriate for the children – that is unless the parents can agree to a schedule before bringing the issue to court.

What is joint custody?

There are a number of components and/or potential arrangements under the standard of joint custody:

  • Joint legal custody: Both parents share in the decisions affecting their children and neither parent may make a major decision (i.e., what school, medical decisions, etc.) without the explicit consent of the other parent.
  • Joint physical custody: Means that each parent shall have significant periods of physical custody with the child. In practice, a parent may be awarded joint physical custody even though he or she may only see the children on weekends.
  • Primary physical custody: This is the term that is used to indicate which parent a child spends or lives with the majority of the time with. It is generally used in cases where parents are awarded joint physical custody and one parent has slightly more time than the other.

Does it matter that my spouse had an affair?

As set forth in a previous FAQ, California is a no-fault state, which means that the reasons behind a decision to end a particular marriage are not considered by the courts. On occasion, issues of marital infidelity may be relevant to custody and financial disputes but these situations are somewhat rare.

I am worried that my spouse/partner is hiding assets because she handled all the money during our relationship.

California is a full disclosure state. This means that both parties are obligated to make a full and accurate disclosure of any and all assets no matter when they were acquired. The penalties for failing to disclose an asset is severe and can result in an award of the hidden asset to the other party.

How is child support calculated?

California uses a statewide formula for figuring out how much child support should be paid. The result of the calculation is known as “guideline” support and is used if the parents are unable to agree on an amount. The guideline calculation is based on a number of factors, including but not limited to the following:

  • How much income the parents earn or can earn;
  • The number of children;
  • The amount of time each parent spends with their children;
  • The tax filing status of each parent;
  • Health insurance expenses;
  • Union dues and mandatory retirement contributions
  • Tax deductions that the parties receive via contributions to mortgage payments and 401(k) accounts.

When can child support be increased or decreased?

A parent may ask the court to increase or decrease child support when there is a change in circumstances. Typical changes in circumstances include modifications to the underlying custody schedule, a change in employment status and/or an increase or decrease in an individual’s earnings.

When does child support end?

Generally speaking a parent’s obligation to pay child support ends when the child turn 18 and is not a full-time high school (support continues through age of 19 if the child is a full time student through 19 years of age), the child marries or registers as a domestic partner or if the child is emancipated.

How are spousal and partner support calculated?

There are two types of support, temporary and long-term. Each type of support is calculated differently:

  • Temporary support is paid while a divorce case is pending and is generally calculated according to a formula.
  • California courts have great discretion in determining what the court believes is a fair amount of long term support. Long term support is not based on a formula and is based on a number of factors that are set forth in Family Code Section 4320. These factors include, but are not limited to the length of the marriage or domestic partnership, the marital standard of living, the financial needs of each person, the earnings of each party and the earning abilities of the parties, what each person pays or can pay, the age of the individuals, the assets and debts of each person. California courts have great discretion in determining what the court believes is a fair amount of long term support.

How is spousal support taxed?

Generally, spousal support is tax deductable to the paying spouse and treated as taxable income for the supported spouse. However, there are certain “problem” areas that parties must be aware of, including, but not limited to: (1) for a “payor to obtain the tax deductibility benefit, certain drafting requirements are necessary otherwise, the payor could end up losing the deductibility; (2) payors must be aware of accelerated “step downs” which could lead to the unwanted and financially difficult consequence of “recapture;” (3) same sex married persons or registered domestic partners must consult with experienced counsel and accountants as deductibility rules are not accepted for these partners because of the federal Defense of Marriage Act (DOMA).

How is domestic partner support taxed?

As set forth above, the tax implications associated with partner support are complicated since federal tax laws do not recognize domestic partnerships. It is important to talk with an accountant or attorney who is an expert in this area.

When does spousal and partner support end?

Generally speaking, long term spousal and domestic partner support ends upon the death of the supported spouse, the death of the paying spouse, the remarriage of the supported spouse or new domestic partner registration by the supported domestic partner. Also support may end on a date certain established by the parties when negotiating the support agreement and support may end on a date determined by the Court. In marriages and domestic partnerships that are long term in duration the support may be paid for an indefinite period of time.