A marriage or domestic partnership in California will come to an end when one or both spouses/domestic partners seek a divorce. A divorce, otherwise known as a dissolution of marriage or dissolution of domestic partnership, results in a termination of the parties' marital status or domestic partnership and allows the two parties to legally remarry or become a domestic partner again.
In circumstances where a couple does not want the marriage or domestic partnership to end legally but still want to live apart, they may seek a legal separation. Some of the reasons a couple may wish to seek a legal separation instead of a divorce include religious or cultural prohibitions against divorce, need to remain on a spouse or domestic partner's health care plan, and immigration considerations.
Residency Requirements and Exceptions
In order for a married couple to get divorced in California, certain residency requirements must be met. At least one spouse must have to be a resident of California for at least six months and of the county where the spouse files for divorce for at least three months immediately before filing the petition for dissolution.
When both spouses have lived in California for at least six months, but have lived in different counties for at least three months, either spouse can file in their respective county.
Partners who originally registered their domestic partnership in California do not need to fulfill any residency requirements to get a divorce. The relationship can be severed regardless of where the partners are living. However, partners who registered their domestic partnership in a state other than California will need to meet the same residency requirements that married couples must meet.
If neither spouse/domestic partner can fulfill the residency requirements, one of the spouses or domestic partners can still file for a legal separation and then file for dissolution later once the residency requirements are met. After enough time has passed, a divorce action can be brought via an “amended petition.”
California Grounds for Divorce or Legal Separation
In California, the courts do not require either spouse or domestic partner to show fault or bad behavior in order to effectuate a divorce or legal separation. The state is a “no fault” state, where one spouse or domestic partner must simply allege that the couple has “irreconcilable differences” resulting in a marriage that is no longer sustainable. “Irreconcilable differences” means that there are substantial reasons for not continuing the marriage and make it appear that the marriage should be dissolved. Only one spouse or domestic partner needs to allege this claim; a divorce in California does not require that both parties consent or agree that their differences are irreconcilable. However, to obtain a legal separation based on this ground, both spouses/domestic partners must consent or one spouse or domestic partner must not appear in the action. The effect of this requirement gives the responding party the power to prevent the legal separation.
Despite the fact that California is a “no fault” state, fault or wrongdoing can be relevant when the court determines child custody and visitation, spousal support, and safety.
The other ground for divorce in California is permanent legal incapacity. A court can only dissolve a marriage on this ground with proof, including competent medical or psychiatric testimony, that a spouse or domestic partner was insane at the time of filing the petition and remains incurably insane. A divorce entered on this ground does not relieve a spouse or domestic partner from their obligation to support the incurably insane spouse or domestic partner.
No Common Law Marriage in California
California does not recognize common law marriages created within the state. Typically, the state only recognizes a marriage when it has been licensed, solemnized, and authenticated, and the authenticated license has been returned to the county recorder of the county where the marriage license was issued. In the eyes of a California judge, it typically does not matter how long the couple lived together or whether they presented themselves as husband and wife. If they were not formally married, the court usually will decline to acknowledge the relationship or grant a divorce.
There could be exceptions, however. If a couple entered into a common law marriage elsewhere and later moved to California, there may be an argument for the relationship to be treated as a formal marriage. In some states and in some foreign countries, common law marriage is legal, and a couple can gain status as a married couple without ever procuring a marriage license. If the proper evidence and legal arguments are presented, it is possible that a California court could validate a common law marriage formed outside of the state.
Availability of Other Orders in Divorce or Legal Separation
A court can make a wide variety of orders in both a legal separation and divorce proceeding. If the proper jurisdictional requirements are met, a judge can issue enforceable orders regarding the following:
- Child Custody and Visitation - California courts will assign legal decision-making custody and physical custody to either one or both parents. In some cases, a parent will only be permitted visitation rights.
- Child Support – All parents are responsible for the financial well-being of their children. A court will weigh various factors when deciding who owes what when it comes to child support.
- Spousal Support – In some cases, a judge will agree that a spouse or domestic partner merits financial support for a defined or indefinite amount of time. California law sets forth various factors a court will consider when awarding spousal support.
- Property Division – The default property division laws in California support community property arrangements. This means that all assets and debts acquired during the marriage are typically split equally between spouses or domestic partners. Couples can contract around these laws by way of prenuptial agreements.
- Attorney Fees and Costs – A court may order one spouse or domestic partner to pay the other a reasonable amount of money for attorney fees and costs to ensure that each party has access to legal representation in order to preserve each party's rights.
- Restraining Orders – A party may request a domestic violence restraining order for their peace and safety. A court may also grant restraining orders concerning money or property.
- Restoration of a Former Name – A party is entitled to restoration of a former name on request, except in a legal separation proceeding.
Contact a Skilled Contra Costa County Divorce Lawyer Today
Initiating a divorce or legal separation can be a difficult first step. It is common to feel stress and anxiety about what the future holds. As the process moves forward, it is critical to have a knowledgeable, experienced attorney at your side. Most spouses will have to make decisions regarding spousal support, child custody, child support, and property division. If you live in Contra Costa, Sacramento, Solano, or Yolo counties, Jaime L. Kissinger, a full-service family law lawyer, can provide compassionate representation. Contact her today to schedule an initial consultation.