Legal Grounds for Divorce in California
California is a “no-fault” divorce state, which means the court doesn’t require either spouse to place blame for the failed marriage on the other person. It was the first state to enact a purely no-fault divorce law in 1969. Unlike some states that allow a spouse to allege a reason for the divorce, such as abandonment or adultery, California only requires a spouse to claim the marriage is unsalvageable.
There are only two legal grounds for divorce in California: irreconcilable differences and permanent legal incapacity to make decisions. Let’s break them down:
- Irreconcilable differences – Regardless of the circumstances, the grounds for a majority of California divorces are “irreconcilable differences.” The state does not require a couple to testify in court about why their marriage isn’t working. Even if the reason was adultery or abuse, the court won’t factor marital fault when deciding issues about child custody, spousal support, or property division.
- Permanent legal incapacity – Legal incapacity or “incurable insanity” has a very high burden of proof and is not an easy way to get a divorce. It’s only applicable in cases of serious mental illness. You must provide psychiatric testimony or medical documentation to the court that demonstrates your spouse was incurably insane when you filed the divorce petition. Medical experts must agree that your spouse is unable to make decisions for the foreseeable future.
California also has rules for marriage annulment as an alternative to divorce. There are several grounds for annulment, including:
- The marriage license is not valid or was never filed
- Marriage through force or coercion
- Marriage through fraud or deception
- Evidence of incest
- One spouse was under the legal age of consent when the marriage began
- Polygamy or bigamy
If you’re interested in an anullment, don’t delay. There are statutory deadlines for annulment, so you must act quickly if you qualify!
What If the Divorce Is Contested?
A divorce can either be contested or uncontested. An uncontested divorce means a married couple mutually agrees on all the terms. On the other hand, a divorce becomes contested if you two can’t agree to the terms outlined in the divorce petition. This includes things like child support, child custody, alimony, the validity of prenups or postnups, and the distribution of assets.
If you’re dealing with a contested divorce, then you must file a declaration of the issues you have worked out and leave the rest for a judge to decide in court. This involves several steps:
- First, you or your spouse has to file a response (Form FL-150) within 30 days of receiving the petition.
- Next, you must fill out and serve a Preliminary Declaration of Disclosure that outlines all of you and your spouse’s assets, income, debt, and expenses. You must also attach tax returns from the past two years.
- At this point, the court sets a trial date. Both parties must attend a settlement conference before the trial.
The California courts recommend that couples seek mediation to resolve their differences before bringing the matter to court. Not only will it save you time and money, but it’ll also save you the emotional stress of fighting over your problems in court.
Can You Kick Your Spouse Out of the House?
Just because California is a no-fault divorce state doesn’t mean you don’t have the right to kick your spouse out of your marital home. This step may even be necessary for some domestic situations, especially if you or your kids are in danger.
California Family Code Section 6321 allows a spouse to ask the court to issue an “ex parte order” that excludes the other spouse from their home. These “kick out” requests are for protecting a party from domestic violence for a period set by the court. Good reasons for why the court should grant our order include:
- Your spouse has assaulted or threatened to assault you or someone under your care.
- There is evidence of serious risk of harm to you, your child, or someone else under your care, such as texts, video, letters, or a sworn witness statement.
- You could potentially suffer physical or emotional harm if the court does not grant the order.
If you meet the minimum requirements, the court will grant the order. In cases like this, it is better to consult with a family law attorney who can serve your spouse the order on your behalf to protect your personal safety. Contact the domestic violence hotline for more information.
What You Are Entitled to During Divorce
Community Property & Separate Property
California is one of seven community property states. That means any property, asset, debt, or income you and your spouse acquired over the course of the marriage is considered community property and must be divided equally. Examples of community property include real property (homes, vacation properties, etc.), cars, clothing, furniture, art, patents, businesses, retirement accounts, pension plans, bank accounts, cash, and debt.
The law considers any property acquired before the marriage or during the marriage via gift or inheritance to be separate property. It will remain legally yours even after the divorce.
Child support is a key facet of family law. In situations where parents are seeking a divorce, one parent may have to make monthly financial payments to support a minor child. These payments cover key expenses, including clothing, food, and shelter, until the child turns 18. They can also include additional costs related to education and expenses for transporting the child between parents.
The parent who spends the most amount of time with the child, or custodial parent, is the one who receives child support payments. To calculate the amount required in child support, the court takes into account:
- Both parents’ incomes
- The number of kids who need support payments
- Tax liabilities for both parents
- The existing time-sharing arrangement
- Health insurance expenses for the children
- Job-related expenses
- Other relevant expenses
A judge typically decides and orders child support payments. However, parents can optionally come to a support agreement without a court order. Parents can also ask the court to amend the chosen amount if there is a significant change in financial circumstances.
One spouse may be entitled to spousal support, which is a set amount of money that a spouse must pay to the other spouse each month. A judge will consider multiple factors when determining whether to award spousal support, including:
- Length of the marriage
- Supporting spouse’s financial ability
- Age and health of both parties
- Tax consequences
- Goal of self-support
The judge can either award temporary alimony or permanent alimony depending on the length of the marriage. For example, short-term marriages typically only award alimony for half the length of the marriage. The law measures a marriage from the date of the initial marriage to the official date of separation.
Entitlements are a major point of contention in many divorces. If there are minor children involved, this can also affect the family dynamic. Most experts recommend that the two parties try to amicably negotiate these terms on their own as much as possible before resorting to a court battle.
A People’s Choice Can Assist You With Your California Divorce
You don’t need to cast blame to file for divorce in California. To start your divorce, you simply need to indicate that the marriage is irretrievably broken. And you can start with one of many free resources out there.
The California courts website has a self-help center that can provide you with many of the basic documents. There are also numerous sites, including A People’s Choice, that can provide you with the relevant forms to start the process.
If you don’t want to tackle the paperwork on your own, then A People’s Choice is a good option. We can help you file for divorce for a fraction of the cost of a divorce attorney. Although our legal document assistants can’t provide legal advice, they can guide you through each step of the divorce process. Contact us if you want to settle your divorce case as inexpensively and easily as possible!