California Divorce: The Basics

As we all know, divorce can be very difficult on all parties involved, but it doesn’t have to be. If your own marriage is falling apart, we want you to know that it doesn’t have to be the end of the world. By nature, divorce can be a “highly emotional” process, but when you arm yourself with knowledge and know what to expect, your chances of feeling good about the outcome of your divorce increase exponentially.

We hope that you can consider this post the starting point of your educational journey. If you live in the Los Angeles area and you need more information about filing for divorce in Southern California, we encourage you to contact our firm for a free, confidential consultation.

California is a no-fault divorce state.
California was the first state to become a “no-fault” divorce state. This means that spouses can obtain a divorce as long as one spouse wants out and they NEVER have to blame the other spouse for the breakdown of the marriage.

Adultery does not usually affect property division.
Since California is a no-fault divorce state, family law judges are not usually concerned if one spouse had an affair. Generally, cheating does not affect property division or spousal support, however, it can affect child custody in extreme cases.

Also, if the cheating spouse wasted marital assets on the new boyfriend or girlfriend, then it can affect the settlement. For example, if an adulterous husband was paying for his girlfriend’s apartment with marital assets for a year, it can affect how much money a judge awards his wife in a litigated divorce.

California is a community property state.
California is one of a handful of states that divide marital assets based on the community property method of distribution. Under California’s community property law, each spouse is entitled to half or 50 percent of the assets acquired during the marriage. Separate property, such as property acquired before the marriage or after the date of separation, and inheritances and gifts received during the marriage are not usually subject to division.

Couples can reach their own settlement agreement.
Though California spouses are entitled to half of the marital assets acquired during the course of the marriage, including income from one spouse alone, spouses do not have to adhere to this 50/50 principal. In fact, spouses have every right to reach their own settlement agreement, even if it’s not split down the middle.

Premarital agreements cannot control child custody.
In California, a premarital agreement can do a lot, but one thing it cannot do is determine child custody. If child custody is a contested issue, only a family law judge has the power to decide where the children will live. If a spouse tried to address child custody in a prenuptial agreement, it would be unenforceable in court.

The courts don’t have to intervene.
Fortunately, when people seek a divorce in California, the courts do not have to intervene at all, providing the couple can put their heads together and reach an agreement on child custody and support, spousal support (if any), and property and debt division.

However, if the couple cannot reach an agreement on any one or more of these matters, the presiding judge will have to step in and decide for them.

Cheating may affect child custody, but it depends.
If a parent was able to keep an affair quiet and the children were not directly affected, it should not affect child custody, but there are exceptions. For example, if the children knew about the affair while it was going on, or if the adulterous parent allowed the affair to affect the children, a judge may decide that it’s best for the children to live with the other parent most of the time.

Why? Because, the cheating parent’s actions may be viewed as immoral to the judge and as if the parent was putting their own desires above their children’s best interests.

Your social media posts can be used against you.
Social media is addicting and if you’re like the average person (age 13-65), you probably have at least one social media account, such as Facebook. Beware, divorce attorneys everywhere turn to social media accounts for valuable, damaging information about their client’s spouses during a divorce.

We advise against posting anything that could be used against you in court, such as pictures of you partying or posts where you rant about your ex-spouse or their divorce attorney. You’re better off only sharing “safe” posts, or staying off social media during your divorce proceedings.

The judge can issue temporary orders.
While a divorce is pending, the judge can issue temporary orders (at either spouse’s request) for child custody, child support, visitation, and spousal support. So, keep this in mind when your divorce action is filed.

Spousal support is not automatic.
Spousal support is not automatic in a California divorce. It all depends on the length of the marriage, the age and health of both parties, each spouse’s individual income and assets, the lower-earning spouse’s need for support, and the higher-earning spouse’s ability to pay support.

If spousal support is awarded, it’s typically awarded for one-half the length of the marriage, unless the marriage was of “long duration.” In that case, spousal support can be awarded indefinitely.

A marriage of long duration lasts 10 years or longer.
A marriage of long duration is one that lasted 10 years or longer.

Spousal support is tax deductible, child support is not.
Spousal support is tax deductible for the paying spouse and counted as income for the receiving spouse. Child support on the other hand, is NOT tax deductible – sorry, we wish it was!

Child custody and support agreements can be changed.
After a divorce is final, it’s very common for child support and/or child custody orders to be changed once, if not several times until the child turns 18. However, the petitioning parent must prove a significant change in circumstances for the court to modify an existing order for child custody or support.

It’s better to close joint accounts or put them in one name.
If you have joint accounts with your spouse, you don’t want them to follow you after the divorce if at all possible. It’s much better to close all joint accounts or switch them into one spouse’s name. This way, you won’t be held liable for a debt if your spouse fails to pay it for some reason.

For professional divorce services in Los Angeles County, contact Claery & Hammond, LLPtoday!