California is a "no fault" state and therefore either you or your spouse can file for divorce and you don't need to agree to get a divorce. Divorce starts with the filing of a divorce petition and takes a minimum of six months and a day from when you partner has been served to when the divorce can be finalized. To file for divorce, you or your partner have to have been a resident of California for six months and a resident of the county where you file for divorce for three months. Divorce will restore you and your partner to single status and can involve child custody and visitation, child support, spousal support, division of property and debts. At the end of the divorce proceedings you will receive a final judgment containing orders and be restored to single status.
Child Custody and Visitation
When a couple decides to get divorced, and they have children, the law encourages both parents to maintain an active role in raising the children. There are two parts to child custody, legal custody or who gets the make the decisions about education, health and religion, and physical custody, who the children will live with. California family courts promote joint physical and legal custody, in cases where there's no domestic violence, and many children spend half their time with one parent and half the time with the other parent. You can reach an agreement with the other parent on how to raise your children and how much time the children willing spend with each parent, or if you can't reach an agreement, you can go to court and seek formal custody orders from the family court judge.
California is a community property state which means that any income earned during the marriage and any assets acquired during the marriage will be community property and each party will be entitled to half the assets in the case of divorce. Couples who do not want to share everything during the marriage, can enter into a prenuptial agreement before the marriage, agreeing how to treat income and assets during the marriage and whether either party will be entitled to spousal support if the marriage ends. If both parties were represented by attorneys at the time the prenuptial agreement was signed and had enough time to review before signing, the court will generally enforce the prenuptial agreement. For couples who did not enter into a prenuptial agreement, they can enter into a postnuptial agreement governing the division of property after the date of the marriage.
Domestic Violence & Restraining Orders
The courts in California take domestic violence very seriously. Domestic violence is not limited to physical abuse, but can also include harassment, stalking, threatening, destroying personal property or intimidation. If you are the victim of domestic violence you can obtain a domestic violence restraining order keeping your abuser away from you and the children and keeping your abuser out of the family residence. Domestic violence has a strong impact on child custody and visitation and spousal support as the court is unlikely to grant joint physical and legal custody in a case where there's domestic violence and someone who who has committed domestic violence will be precluded from receiving spousal support.
If you and your partner don't want to divorce for religious or other reasons such as a wish to maintain health insurance coverage, legal separation may be an alternative for you. There's no residency requirement and no need to wait six months to get a judgment of legal separation. A judgment of legal separation will include financial and custody orders if there are children but it will not restore you to single status and you cannot get remarried after obtaining a judgment of legal separation.
When a couple decides to get divorced and there are children involved, the law requires that both parents support the children. The same requirement to financially support the children also exist in a legal separation or a paternity case. The court decides the amount of child support based on the earnings of both parents, and the amount of time each parent spends with the children, using a computer program called Dissomaster. The parents can choose to make an agreement for less or more child support if they agree that it's in the best interest of the children.
If you and your partner have children together but are not married, you can file a paternity action in family court to obtain child custody and visitation orders. The court is likely to send you and your partner to mediation before making orders regarding custody and visitation. A paternity action will usually also involve child support as both parents are required to financially support the children. Unlike divorce actions, paternity actions are confidential.
If your former spouse or partner does not obey the court orders issued in your case and consistently fails to bring the children back to you at the end of the visitation or doesn't pay child or spousal support, you can return to court and ask the court for help in enforcing the court orders in a contempt action. Contempt is quasi criminal in nature and if found guilty of contempt you
r former spouse or partner can be made to pay fines and spend time in jail. He or she will also be admonished to comply with all court orders. If faced with contempt allegations, you are entitled to have an attorney represent you and if you can't afford an attorney, the court will appoint an attorney to represent you.
Dissolution of Domestic Partnership
A California dissolution of domestic partnership ends the domestic partnership and restores the partners to single status. Similar to divorce, it starts with the filing of a petition and takes a minimum of six months and a day from when your partner was served to when the partnership is dissolved. Dissolution of domestic partnership restores you to single status and a judgment of dissolution of domestic partnership can involve court orders governing child custody and visitation, child support, spousal support, division of assets and debts.
When you divorce, if one of the parties makes more money than the other, the higher earning spouse will generally be required to pay spousal support. There are two kinds of spousal support, temporary spousal support is ordered while the divorce is pending and seeks to equalize the parties incomes pending the divorce being finalized. Permanent support is based on several different factors and for a short term marriage, lasting less than ten years, support will be limited to half the length of the marriage. In a long term marriage, the courts will encourage the supported party to become self supporting but will not set an arbitrary limit to the length of time that support can be paid. Spousal support is tax deductible for the payer and taxable for the spouse receiving support.
Post Judment Actions
If after the divorce is finalized, your financial situation or that of your former spouse changes, you may be able to return to court and seek a modification of spousal support or child support orders. If your former spouse moves in with a romantic partner, you may no longer be required to pay spousal support and if your spouse gets a better paying job, you may be able to reduce your support obligations. If your partner doesn't comply with the orders in the final judgment you can also return to court to seek relief.