If you are contemplating
divorce, we recommend doing your research so you understand your rights under
California law. In fact, there are many benefits to learning about the
divorce process before telling one’s spouse, as this arms the individual
with information, clarifies any misunderstandings, and helps them make
informed decisions from the outset.
By its nature, divorce is a stressful experience, even if it’s the
right thing to do in every way. So, by conducting your research and truly
becoming familiar with the laws, you will give yourself the greatest advantage.
If your spouse was the one to serve you divorce papers, you want to take
a few days to buckle down and learn your rights so you don’t say
or do anything that you will later regret. Please, continue reading as
we explain what you should know about divorce in California.
1. California is a No-Fault Divorce State
Technically, California is a no-fault divorce state. This means that no
one has to blame the other spouse for the breakdown of the marriage. No
one has to claim
domestic violence or “cruel and inhumane treatment,” or that one of the spouses
abandoned the other.
All that matters is that one of you wants out, the court is not concerned
about a wife who had an affair, or a husband who squandered away the family’s
savings at the race track.
On the subject of adultery, a California judge generally will not be interested
in evidence of an affair. Unlike some states, an affair won’t have
an effect on spousal support, nor will it reduce a spouse’s interest
in the marital estate. The only time that an affair may affect a divorce
is where there are children involved.
Generally, an affair will not have a bearing on child custody unless the
adulterous spouse was particularly irresponsible and their behavior directly
affected the children. In some cases, a spouse’s cheating will not
be viewed kindly by a judge, especially if the children were somehow neglected
or harmed by the adultery.
2. Judges Can Issue Temporary Orders
While a divorce case is pending in the courts, spouses can ask the judge
to issue temporary orders for
child support and
spousal support. If you have children, we highly recommend getting a temporary order for
child custody, especially if you are planning on moving out of the marital
home and leaving the children behind, with your spouse.
When a parent moves out of the family home, this sends a powerful message
to the judge and it establishes a new status quo. When parents move out
without first obtaining temporary
child custody orders, they can face an uphill battle when fighting for custody later
on. Before you move out of the marital residence, speak to an attorney first.
3. It Takes at Least Six Months to Get Divorced
In California, it takes at least six months for a divorce to be finalized.
Before the judge can sign off on the divorce, the spouses must agree on
a marital settlement agreement, which addresses child custody, property
and debt division, and what will be done with the marital home.
If the spouses cannot reach an agreement on the above matters, the judge
will have to decide on a property and debt settlement arrangement that
is in accordance with California’s community property laws.
4. Spousal Support is Not Automatic
Spousal support is money paid by the higher-earning spouse to the lower-earning
spouse to help them gain their own financial footing. Spousal support
is NOT automatic, and it can be paid by a husband or a wife.
Awarding spousal support is up to the discretion of the judge and if it
is ordered, it usually (but not always) lasts for half the length of the
marriage. So, if the marriage lasted eight years, spousal support would
be awarded for four years.
One exception is marriages that lasted 10 years or longer; these are called
marriages of a “long duration.” In the case of a long marriage,
spousal support may last indefinitely.
Spousal support is tax deductible for the paying spouse and it is counted
as taxable income by the receiving spouse. Either spouse has the right
to petition the court for an upward or downward modification if they can
prove a “significant change in circumstances.”
Generally, spousal support ends when:
- A court order says that it does,
- Either spouse dies, or
- The receiving spouse remarries.
5. Both Parents Must Financially Support the Children
Both parents are expected to financially support their children. Usually,
the parent who has the children more of the time will receive child support.
In California, parents must pay child support until their children turn
18, or 19 if they are still going to high school full time and living at home.
Like spousal support, child support can be modified. However, the paying
parent is obligated to pay child support regardless if they are unemployed,
underemployed, or their ex does not allow them to see their children.
If a parent does not pay their court-ordered child support payments, they
could face serious consequences, such as:
- Wage garnishment
- Tax refund intercept
- Denial of passport
- Bank garnishment
- Driver’s license suspension
- And other penalties
If you are ordered to pay child support and you cannot afford to pay it,
for example, you lose your job, please be advised that losing your job
does not automatically lower your child support obligation.
You must go to court ASAP when your circumstances change, and ask the court
to lower your child support obligation. Otherwise, your arrears will continue
to accrue, and the court cannot go back to when you lost your job and
adjust what you owe.
If you are considering divorce,
contact our Los Angeles divorce firm to schedule a free, confidential consultation
with an experienced member of our legal team.