Getting divorced can be a troubling process. About half of marriages in California (and elsewhere) end in divorce, and Orange County is no exception. Whether you live in a private community along PCH in Laguna Beach or are from the heart of Orange County a few miles inland, California divorce law applies to everyone equally. Here's some general basics about the process and law.
Types of Divorce
California has a few different types of ways to end a marriage or legally separate, and it's important to know which may fit your situation.
A legal separation does not end a marriage or registered domestic partnership, but it does allow for a number of important decisions usually associated with a divorce to be made. These include decisions on custody, visitation, support, and more. This is an option for spouses who do not meet California's residency requirement for divorce, people who do not want a final divorce for personal or religious beliefs, or those who may want to stay married for financial reasons like sharing insurance and other benefits.
An annulment is an option for ending a marriage or domestic partnership that was not legal in the first place. Annulment is an option only if:
- one spouse was already married (or didn't have a final divorce);
- one spouse was under 18 at the time of the marriage;
- the marriage is between close blood relatives;
- the marriage or domestic partnership is a result of force or fraud; or
- one spouse was mentally or physically incapacitated.
The length of the marriage does not influence whether an annulment is an option.
Summary dissolution is designed to be an easier and faster way to get a divorce. A couple will not need to speak to a judge and may not need to consult an attorney to get a summary dissolution. The following are the requirements for a summary dissolution. The couple must:
- be married or in a domestic partnership for less than five years;
- have no children;
- not own land or buildings;
- not rent land or buildings for a term longer than one year;
- not have accrued more than $6,000 in debt since the marriage started;
- not have acquired $40,000 in assets during the marriage;
- not have separate property worth more than $40,000; and
- agree that neither spouse will receive alimony, and have an agreement for dividing community property.
Failing to respond to your spouse's petition for divorce or separation may end in a default judgment. This means that one would not have a say in how property, money, support, and child custody is handled. If you do not respond, what your spouse asks for in the petition may very well be what the judge orders.
Even if you and your spouse agree to the terms of the divorce, you should make sure that you are involved in the process. A relatively easy way to do this is to work out a formal divorce agreement with your spouse or domestic partner. You can both agree on how to divide property, money, debts, spousal support, and child care. Once everything is agreed upon and the agreement is drafted, it can be submitted to the court for final approval.
A contested divorce means that you do not agree with your spouse about the terms of the divorce. It does not mean that you disagree about getting a divorce. In fact, you cannot prevent someone from going through the divorce process even if you don't want to. In this situation, it is in your best interest to be as involved as possible. If you do not want to go through the courts, speaking with a divorce mediation attorney is an option, especially if you and your spouse agree on some issues, but not others.
Grounds for Divorce
California is a no fault state. This means that a spouse does not need to show that the other spouse did something wrong to get a divorce. The main reason for a divorce is called irreconcilable differences. You only need to check a box on the divorce petition form (also known as dissolution petition) that says "irreconcilable differences". California law defines this as "substantial reasons for not continuing the marriage". Another option is incurable insanity, which is a very rare and allows for a divorce when one spouse is medically insane.
A prenuptial agreement can cover a number of issues, including how to divide money, property, child care, and spousal support during and after marriage. Premarital agreements become effective when the parties marry, and may be changed or withdrawn at any time, as long as the change or withdrawal is in writing and signed by both spouses. California law makes a prenuptial agreement invalid if it was unconscionable (extremely unfair) or was not signed voluntarily.
California Residency Requirements
In order to get a divorce in Orange County, you must be a resident of Orange County for at least three months. California's residency law requires one spouse to live in California for at least six months, and live in the county of divorce for at least three months. This means that if you just moved to Orange County from a separation in LA or San Diego, you won't be able to file for divorce in Orange County immediately. If you do not meet the county or state residency requirement, legal separation is an option until the residency requirement is fulfilled.
Decisions Made in a Divorce
Dividing Property: California is a community property state, which means that each spouse owns half of all money and property acquired during the marriage, and is responsible for half of the debts. Courts will divide all marital property and debts equally.
Child Custody: Child custody is often on the forefront of parents' minds when getting divorced. Legal custody is the ability to make decisions for a child. Physical custody means the child lives with that parent.
Child Support: Divorce with children often leads to one former spouse paying the other for taking care of children, called child support. California provides a web-based calculator for estimating child support obligations.
Spousal Support: In California, when determining spousal support, also known as alimony, the judge will consider the job prospects of each spouse, the time it will take a spouse to get a job or a better job, and how much a spouse's current earning capacity was affected by unemployment during the marriage while contributing domestic duties.
If you need help with your own divorce, or would like to know more about the divorce process and your rights, there are many experienced divorce and family law attorneys in Orange County who may be able to help you.