If there is no way to reconcile your marriage in California, you have a few alternatives to end the relationship with your spouse. Divorce, nullity, and legal separation all serve to change your marital status.
- Divorce: This judicial decree releases couples from marital obligations and dissolves the legal relationship of the marriage.
- Nullity: A legal declaration, or annulment that the marriage is void or voidable because of some circumstance that existed at the time of marriage, such as fraud, bigamy, duress, or insanity.
- Legal Separation: A judicial determination that a married couple is living apart, but the marriage is not legally dissolved. The court determines custody and support obligations despite the legal continuation of the marriage.
California Grounds for Filing Divorce
When individuals bring a divorce petition to the court they are required to state why the divorce is required. These grounds for divorce must meet the state of California’s legality stipulations. Not every state has the same grounds for divorce, so filing for divorce in one state is different than filing for divorce in another state.
The individuals in the marriage can decide on the grounds for divorce as a couple or one of the individuals can bring the grounds forward at the hearing but will need to prove the grounds before the court. In California, one spouse can file for divorce from another, and the respondent will be served with papers.
The grounds for divorce may be based on several factors, including incurable insanity. In this case, one individual will be held responsible for the failure of the marriage. The individual in question will first need to be evaluated by a professional who will later provide testimony in court.
By law, the individual who has been evaluated to be insane must be in this condition when the petition is filed and will need to remain as such throughout court proceedings. When a divorce is granted due to incurable insanity, the petitioner is still required to support the former spouse as stated by the court.
Another ground for divorce is named irreconcilable differences. Under this section, most individuals will have attended marriage counseling. Irreconcilable differences do not name one spouse responsible for the diminishing of the marriage; instead, no one will be held responsible. Substantial reasoning must be brought before the court for a petition to be accepted.
California Domestic Partnership
As of 2005, all California couples who register with the state are entitled to many rights and obligations as married couples. This progressive law changes the way same-sex and domestic partners will want to think about their relationship. In order to register with the state of California, you must meet certain requirements. With these rights come obligations, including the processes to terminate the relationship, support, maintenance, and other martial obligations. To learn more, speak to attorney Daniel Jensen about California’s domestic partnership and cohabitation law.
Residency requirements for divorce
In order for a spouse to be able to apply for a Petition for Dissolution of Marriage in California, the Superior Court must have jurisdiction over your case. There are residency requirements to be followed, which include one of the residents residing in the state for a period of at least six months. They must also reside in the county in which they are filing for divorce for three months preceding the filing. Usually, Dissolution of Marriage will be filed in the county in which the filing spouse resides California Code – Sections: 297, 298, 2320, 2339.
The husband and wife may each have separate home, depending on proof of the fact, but not upon legal presumptions.
Parental Rights and Establishing Paternity
When you have questions concerning a party’s obligations and rights to a child, you may need help establishing paternity. One way to establish legal paternity is to file a complaint with the California Superior Court. With the use of DNA paternity testing, the court will rule on the paternity of your child. If you are an unwed father or mother seeking to establish your paternal rights, you must act immediately. Failing to contest or establish paternity in a timely manner may affect issues such support, custody and visitation rights.
In order to receive child support, or be awarded custody and visitation, the court must declare legal paternity for unwed parents. You can sign a Declaration of Paternity stipulating to the paternity of your child. Failing to stipulate to a child’s paternity subjects you to a paternity dispute.
If you are being investigated or sued by the California Department of Child Support Services, you will need advice. Depending on your case, you may be able to contest paternity by submitting to a court authorized DNA test. DNA paternity testing conclusively proves paternity.
Filing for Divorce
Filing for divorce requires many different types of documents and can be as many as twenty. Some of the documents required by the state of California include Marital Settlement Agreement forms, Preliminary Declaration of Disclosure forms, Declaration of Default forms, Waiver forms, Appearance forms, Uncontested Dissolution of Marriage forms, Stipulation forms, and Declaration Re-service of Declaration of Disclosure and Income and Expense Statement forms.
This paperwork will be submitted to the circuit court in the county of the individuals’ residency. Where the individuals reside will determine which court will receive the files. The Superior Court’s County Clerk’s Office will manage all the paperwork and present it at the set hearing date.
Grounds for divorce in California
Under California law, there are certain grounds under which the spouse filing the petition for divorce can ask the court to dissolve the marriage and these are outlined below:
- Irreconcilable differences have been the cause of the breakdown of the marriage
- Insanity that is incurable
Irreconcilable differences are determined by the court and as such will be very good reasons why the marriage cannot continue and would be better be terminated.
When terminating a marriage based on incurable insanity there must be ample professional proof that at the time of applying for dissolution of marriage the spouse was and remains insane for which there is no cure. California Code – Sections: 2310
When requesting a divorce in California the grounds for divorce must be declared. They must also be proved with evidence, otherwise, your application may be denied by the courts and your case may be dismissed. It is essential when applying to the courts that you realize there may be repercussions, so you need to understand the grounds.
Domestic violence is a very serious matter and occurs all too frequently in California families. If you are charged with or have been the victim of domestic violence, you need a good lawyer. A conviction of domestic violence has severe consequences on your rights regarding custody, visitation and support.
California law defines domestic violence as: “Abuse perpetrated against a spouse, former spouse, cohabitant, former cohabitant, a person with whom he/she had had a dating relationship, a person with whom he/she has had a child, a child of a party, or any other person related by consanguinity or affinity within two degrees.”
A restraining order or criminal conviction of domestic violence will seriously affect your rights in any custody, visitation and support proceedings. In the alternative, if you are the victim of domestic violence, attorneys can petition the court to obtain a restraining order.
Division of property when divorcing
In California, property may be divided between the spouses. Should the spouses fail to reach an agreement regarding division; the Superior Court will make the division of the property. California is a community property state. Community property consists of all property that was acquired during the marriage, from the first day to the cut-off day of the marriage. The Superior Court will split the assets equally between the spouses.
When dividing property the following is taken into account:
- Any property that was acquired during the marriage in the joint form will be considered community property. This will include tenancy in common property, joint tenancy, or property that is tenancy by the entirety. Proof of this may be needed and can be rebutted by either of the following:
- If there is proof by documentation or deed that, the property is spate property and not community property.
- The spouses have declared that the property is not community property and there is proof.
- One party may be awarded an asset of the community state when economic situations warrant it. If the court believes that, the situation warrants it.
Child Custody in California
Any children involved in a marriage will have to be taken into custody following the divorce’s completion. The court will take into account several factors before awarding custody to one parent or joint custody to both parents.
The court will review the child’s wishes, the parent’s wishes, current parental occupations, the parents’ residencies, parental personal relationships, the child’s health, the child’s safety, parental use of illegal substances, the child’s relationships with his or her parents, and parental use of alcohol, and many others.
The court will also review the emotional state of the child and if removal from one parent’s home to another is in his or her best interest. Visitation rights will also be established if any are to be given.
The California court considers many different matters when deciding who has child custody. These are as follows:
- The welfare, safety, and health of the child
- Any history of abuse which includes abuse to the child or another parent
- The amount of contact that the child has had with the parents and the nature of contact
- Habitual use of illegal or controlled substances or habitual use of alcohol is continued. California Code – Sections: 3011, 3020, 3024, 3040, 3042
Of course, the court of California will always do what is in the best interests of the child. They would also prefer that the spouses are able to reach an agreement between themselves as to child custody issues.