DIVORCE LAW CALIFORNIA
Divorce in California is governed by the Family Code of California. The Code circumscribes the aspects like Grounds for divorce, Procedure for divorce, Custody of minor child/ children, maintenance, marital property etc.
GROUNDS FOR DIVORCE
Dissolution of the marriage or legal separation of the parties may be based on either of the following grounds, which shall be pleaded generally:
- Irreconcilable differences, which have caused the irremediable breakdown of the marriage.
- Irreconcilable differences
Irreconcilable differences are those grounds, which are determined by the court and have some substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved.
- Incurable Insanity
A marriage may be dissolved on the grounds of incurable insanity only upon proof, including competent medical or psychiatric testimony, that the insane spouse was at the time the petition was filed, and remains, incurably insane.
- For filing a divorce petition the spouse must have been a resident of the state for 6 months and a resident of the county for 3 months where the dissolution of marriage is to be filed.
A petition for dissolution of marriage or for legal separation of the parties may be filed before the Superior Court family division in the district.
The petition for dissolution of marriage or for legal separation of the parties shall set forth among other matters, as nearly as can be ascertained:
- The date of marriage.
- The date of separation.
- The number of years from marriage to separation.
- The number of children of the marriage, if any, and if none a statement of that fact.
The age and birth date of each minor child of the marriage.
A marriage of 5 years or less may be dissolved by summary action. Official mandatory and optional forms for filing for a Summary Dissolution of Marriage are available from the County Clerk of any county. A Joint Petition for Summary Dissolution of Marriage shall include all of the following:
A statement that as of the date of the filing of the joint petition all of the conditions stated below has been met.
The mailing address of both the husband and the wife.
A statement whether or not the wife elects to have her maiden or former name restored, and, if so, the name to be restored.
CONDITIONS FOR FILING SUMMARY DISSOLUTION OF MARRIAGE
The petition for summary dissolution may be filed if:
- either spouse has met the residency requirement for a standard dissolution of marriage;
- there is an irremediable breakdown of the marriage due to irreconcilable differences;
- there are no children born of or adopted during the marriage;
- the wife is not pregnant;
- neither spouse owns any real estate;
- there are no unpaid debts exceeding $4,000 incurred during the marriage;
- the total value of the community property (including any deferred compensation or retirement plans but excluding cars and loans) is less than $25,000;
- neither spouse has separate property (excluding cars and loans) exceeding $25,000 in value;
- the spouses have signed an agreement regarding the division of their assets and the assumption of their liabilities and have signed any documents or given proof of any transfers necessary to effectuate the agreement;
- the spouses waive any rights to spousal support [maintenance];
- the spouses waive their right to appeal the dissolution of marriage and their right to a new trial upon entry of the final dissolution of marriage judgment;
- the spouses have read and understand the summary dissolution of marriage brochure available from the county clerk; and
- Both spouses desire that the marriage be dissolved.
When the petition is filed, a copy of the petition along with summon has to be served upon the other party.
The court orders the dissolution of the marriage or a legal separation of the parties if from the evidence at the hearing the court finds that there are irreconcilable differences, which have caused the irremediable breakdown of the marriage.
In cases where there is a community estate, the party shall give affidavit in respect of an estimated value of the assets
DISTRIBUTION OF MARITAL PROPERTY
The property rights of husband and wife prescribed by statute may be altered by a premarital agreement or other marital property agreement.
A minor may make a valid premarital agreement or other marital property agreement if the minor is emancipated or is otherwise capable of contracting marriage.
- A premarital agreement or other marital property agreement that is executed and acknowledged or proved in the manner that a grant of real property is required to be executed and acknowledged or proved may be recorded in the office of the recorder of each county in which real property affected by the agreement is situated.
- Recording or non-recording of a premarital agreement or other marital property agreement has the same effect as recording or non-recording of a grant of real property.
The maintenance or the support of one spouse by another the court shall consider all of the following circumstances:
- The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
- The marketable skills in the job market of the supported party; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and to acquire other, more marketable skills or employment.
- The extent to which the supported party's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
- The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.
- The ability of the supporting party to pay spousal support, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living.
- The needs of each party based on the standard of living established during the marriage.
- The obligations and assets, including the separate property, of each party. (6) The duration of the marriage.
- The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
- The age and health of the parties.
- Documented evidence of any history of domestic violence,
- The immediate and specific tax consequences to each party.
- The balance of the hardships to each party.
- The goal that the supported party shall be self-supporting within a reasonable period of time.
The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support
CUSTODY OF MINOR CHILD
The custody of the minor unmarried child is vested with both the parents of the child till the child attains the age of 18 years. However, the court shall consider the following factors before handing over the custody to one of the parents or to a third person viz.
- The health, safety, and welfare of the child.
- Any history of abuse by one parent or any other person seeking custody.
- The nature and amount of contact with both parents,
The habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol by either parents.
In furtherance to the child's custody order to one spouse, the court may grant a visitation right to the other spouse provided that he/she should establish that there is no detrimental effect on the child's interest.
FORMS USED IN DIVORCE PROCEDINGS AND FOR CUSTODY AND SUPPORT
FL-100 For filing Petition
FL-110 For issuing summons
FL-115 Proof of Service of Summons
FL-117 Notice and Acknowledgment of Receipt
FL-142 Schedule of Assets and Debts
FL-145 Form Interrogatories
FL-150 Income and Expense Declaration
FL-160 Property Declaration
FL-170 Declaration for Default or Uncontested Dissolution or Legal Separation
FL-190 Notice of Entry of Judgment
FL-191 Child Support Case Registry Form
FL-192 Notice of Rights and Responsibilities-Health Care Costs and Reimbursement Procedures
FL-192 Information Sheet on Changing a Child Support Order
FL-195 Order/Notice to Withhold Income for Child Support
FL-196 Instructions to Complete Order/Notice to Withhold Income
for Child Support
FL-130 Appearance, Stipulations, and Waivers
FORMS FOR SUMMARY DISSOLUTION PROCEEDINGS
FL-800 Joint Petition for Summary Dissolution of Marriage
FL-810 Summary Dissolution Information-English
FL-820 Request for Judgment, Judgment of Dissolution of Marriage, and Notice of Entry of Judgment
FL-830 Notice of Revocation of Petition for Summary Dissolution