I’ve heard that California is a community property state. What is “community property?”
Community property means that all property that the spouses acquire while married belongs to the marriage partnership and is jointly owned. The community property concept centers on the idea that, in theory, both spouses contribute equally to the creation and operation of the family unit. Typical exceptions to the community property principle include inherited property and property received as a gift. In these cases, it is presumed that the spouse who inherited property—or received it as a gift—owns that property as “separate property” (and it is not subject to division).
May I opt out of the community property system?
Yes. Parties may opt out of California’s community property system by entering into a valid prenuptial agreement. Prenuptial agreements have historically been frowned upon and are often difficult to enforce. While the courts have been more willing to uphold prenuptial agreements in recent years, 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 that the other has done something wrong in order to obtain a divorce. So, while it is acceptable to date other people before the divorce is finalized, the real question is whether it is smart to be dating other people before the divorce is final. If one spouse is dating, for example, it may make it more emotionally difficult for the other spouse to proceed with the divorce. The non-dating spouse may also become suspicious about when the relationship began. If a spouse has spent community funds on the person he or she dated during the marriage, the community could seek reimbursement for those funds.
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?
This is a common misconception and is not necessarily true. 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, however—there is only a presumption that if a marriage has lasted more than ten years, it is a marriage of long duration. This means 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 terminate support after 12 months of payments. If, however, the marriage is closer to the ten-year mark, it is much less likely that the court will automatically terminate support at half the length of the marriage. In the case of marriages that are truly long-term, where the court believes a support award is appropriate, it is possible that the court will order indefinite support.
I am a domestic partner and I want to end my relationship. Must I get a divorce?
Couples who have registered with the California Secretary of State must now file for divorce. The Superior Court must approve of the legal termination of the relationship—the same process as a traditional marriage. 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. This means that any person can file to end a marriage or domestic partnership without having to explain why (other than simply stating “irreconcilable differences”). Nor is there a need to prove fault or “bad behavior” by the other party. For example, a party cannot in most cases obtain a legal benefit if the other party has committed adultery.
My spouse just served me with a Petition for Dissolution. I don’t want a divorce. Is there anything I can do?
No. Once a spouse files for divorce, there is nothing that the other party can do aside from reconciling and terminating the divorce action.
How long does it take 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. It is very rare for a divorce to take exactly six months—even if a couple is in complete agreement. It is impossible to predict 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 marriages except where the parties resided in another state prior to moving to California and the relationship satisfies the requirements for a common-law marriage in that state. (Few states still recognize common-law marriages.) While California does not recognize common-law marriage, the state’s courts have found that non-married partners may contract with one another regarding their earnings and property rights. These non-marital contracts are commonly referred to as “Marvin Agreements.” These contracts may be express or implied.
How do I get custody of my child?
Custody litigation is emotionally challenging and expensive. Parties should make a dedicated effort to reach a custody agreement outside of litigation. If this is impossible, a court will determine if and how the parents share legal and physical custody. (Legal custody refers to the ways that parents share major decisions regarding the health, safety, and welfare of their children. Physical custody refers to the amount of time each parent spends with their children.)
California courts will look to the “best interest of the child” when determining the appropriate custody and visitation schedule. There is no statutory definition of “best interest of the child” but there are factors that a court must consider.
What are the “best interest of the child” factors?
The courts examine a number of factors when determining a child’s best interests, including:
- The health, safety, and welfare of the child
- History of abuse (against a child, a parent, cohabitant, or significant other)
- The nature and amount of contact with both parents. A common consideration is the capacity of each parent to encourage frequent contact between the child and the other parent
- History of alcohol or drug abuse by either parent
How is a custody schedule determined?
The “best interest of the child” standard is gender-neutral with the focus being on the child’s needs. Some court orders are for a child to reside primarily with one parent (for example, if one parent travels extensively for work and the other parent has been a stay-at-home parent attending to a special needs child). Most court orders are for joint physical custody, with the children spending significant time with both parents, if that is what is best for the children. There are many different schedules for parents to share custody. The simplest example is the “week-on/week-off” schedule (not necessarily appropriate for very young children). Some parents establish a “2-2-3” schedule. In this case, parents have the children for two weekdays each week, while Friday through Sunday are alternated between the households every other week. It is up to the court to determine which schedule is most appropriate for the children—unless the parents can agree to a schedule before bringing the issue to court.
What is joint custody?
There are a number of potential arrangements that can fall under the standard of joint custody.
Joint legal custody: Both parents share in the decisions affecting their children. Neither parent may make a major decision (e.g., school, medical decisions) without the explicit consent of the other parent.
Joint physical custody: Each parent has significant periods of physical custody of their child. In practice, however, a parent may be awarded joint physical custody even though they may only see their children on weekends.
Primary physical custody: The child lives with one parent the majority of the time. This 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?
The courts do not consider the reasons behind a decision to end a marriage. Issues of marital infidelity are occasionally relevant to custody and financial disputes, but these situations are rare.
My spouse/partner took care of all financial issues during our relationship. Could they be hiding assets?
California is a full-disclosure state. Both parties are obligated to make a full and accurate disclosure of all assets and liabilities, no matter when they were acquired. The penalties for failing to disclose assets are severe.
How is child support calculated?
California uses a statewide formula for determining the amount of child support. This formula is known as “guideline support.” The guideline calculation is based on a number of factors, including:
- The number of children
- How much income the parents earn or can earn
- 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. Examples include modifications to the underlying custody schedule, a change in employment status, or an increase or decrease in an individual’s earnings.
When does child support end?
A parent’s obligation to pay child support generally ends when the child turns 18 and is not a full-time high school student; if the child marries or registers as a domestic partner; or if the child is emancipated. Support continues through the age of 19 if the child is a full-time student through 19 years of age.
How are spousal and partner support calculated?
Temporary support is paid while a divorce case is pending and is generally calculated according to a formula. California courts have a wide degree of latitude in determining a fair amount for long-term support. Long-term support is based on a number of factors that are set forth in Family Code Section 4320, including 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, and the assets and debts of each person.
How is spousal support taxed?
Spousal support is generally tax-deductible for the paying spouse and taxable income for the supported spouse. There are certain problem areas that parties should be aware of, however. For example, certain drafting requirements are necessary for a payor to obtain the tax deductibility benefit. The payor could otherwise end up losing the deductibility. Payors must be aware of accelerated “step downs,” which could lead to the unwanted and financially difficult consequence of “recapture.” Finally, 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).
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, or the remarriage (or new domestic partner registration) of the supported spouse or domestic partner. Support may also end on a date established by the parties when negotiating the support agreement. 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.