Kirkland Law of California
FAMILY LAW DISSOLUTION (DIVORCE)- A BASIC OVERVIEW
California is a “no fault” divorce state. That means that if one spouse wants to terminate the marriage, the other spouse cannot prevent him or her from doing so. It also means that when a judge decides the underlying issues, his or her determination will not be based on who s/he believes to have caused the break-up, or, put differently, whose conduct the judge believes to have been more culpable. In other words, a California judge will not consider issues such as infidelity or undesirable behavior in the final judgment. This also means that absent certain exceptions, the marital estate, or the property that has been purchased, accumulated or improved during the marriage, will be divided equally, irrespective of fault.
1. Grounds for a California Divorce
A. Irreconcilable differences, Incurable insanity
There are two grounds for divorce in California. These are irreconcilable differences and incurable insanity. Incurable insanity is a medical condition that must be substantiated by a doctor, because this condition is difficult to prove. Hence, very few California divorces are based on incurable insanity. Accordingly, the most common ground for dissolution of marriage in California is irreconcilable differences. Therefore, since California divorces are not based on fault, a court will not inquire into the reasons why one party wants a divorce.
B. Residency Requirements
a. Six months in the state of California; Three months in a California county
In order to file for dissolution of marriage in California, a party must have resided in the State for a minimum of six (6) months, and in the same California county for a minimum of three (3) months. People who don’t met this requirement, are not eligible to file for divorce in California.
b. Legal Separation- an alternative when residency requirements are not met.
Depending upon the circumstances, a party may opt to file for legal separation until s/he meets the California residency requirement. When parties are legally separated, their property is divided and support issues are determined. Also, property acquired by either party, after they’ve been legally separated, will not be classified as community property. It will be the separate property of the acquiring spouse. However, the parties will continue to remain legally married until the marriage is dissolved. In other words, the marital status will not be changed. Since the marital status is not terminated, most parties prefer to wait until they meet the California residency requirements, so that they can file for dissolution of marriage. However, if a party elects to file for legal separation, the action may be converted into a dissolution action once the residency requirements are met.
Legal separation is a viable option for clients who anticipate that they will have to leave the state, or the country, for an extended period of time.
Division of Assets
California is a Community Property State. That means that, absent certain exceptions, all property that is acquired or improved during marriage will be divided equally amongst the parties when the marriage is dissolved. Property that was inherited or acquired before marriage, will continue to be the separate property of the acquiring spouse. However, the community may be entitled to a credit for value enhancing improvements that were made to a to a spouses separate property while the parties were married. The rules regarding property division, and the exceptions thereto, can get complicated. Therefore, it is best to retain an attorney who is experienced in property valuation in order to guide you through this process, and to get you the best deal possible under existing law. Division of property can affect your rights in real estate, stock plans, retirement benefits, business ownership interests, and other investments.
Settlement vs. Litigation
Divorce can be an emotionally draining time for all concerned. It is often said that people going through a divorce are good people who are at their worst. This can also be a financially draining time for the parties. Thus, it is always in everyone’s best interest to try and negotiate an agreement with regards to major issues such as custody, support, and division of property. If the parties can settle most of the major issues, they can save a great deal of money and emotional energy. They also maintain control over the matter, which is usually better than leaving the final decision to an outsider, such as a judge.
FAMILY LAW SERVICES
Kirkland Law of California provides the following family law services:
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