Changes in California Divorce Law
Posted: Nov 10, 2019
New Divorce Law in California (Dissolution of Marriage)
Divorce, or dissolution of marriage, is the process of dissolving the legal relationship between married persons. Divorce related issues include:
- Division of marital property, assets, and debt
- Division of business interest
- Division of retirement benefits
- Stopping sale, transfer, encumbrance, or gift of property
- Child custody, support and visitation rights
- Spousal support rights (Alimony)
- Domestic violence restraining orders (DVRO)
- Tax liability and benefits related to divorce
- Tort liability of a former spouse (Lawsuits)
- Contempt of court (refusal to follow court orders)
Note: Laws related to a California divorce issues are complex and change frequently. Litigants who choose to represent themselves in divorce court without the aid of a divorce lawyer should be aware that family law judges are not lenient on non-lawyers who are unfamiliar the rules of law, legal deadlines, or court procedures. Before filing for a California divorce, contact a family law lawyer to avoid common costly mistakes that can negatively, and irreversibly, effect you and your family's best interest.
Reasons for a California Divorce
There are two legal grounds (reasons) upon which to base a California divorce: 1) Irreconcilable differences, and 2) Incurable insanity. By far, most divorce cases proceed on the grounds of irreconcilable differences. A divorce based on the grounds of incurable insanity is usually related to a request for conservatorship or sole child custody. For more information on divorce based on incurable insanity contact our our experienced divorce lawyers today to make an appointment for a free consultation.
Irreconcilable Differences and No Fault Divorce
Irreconcilable differences means that the spouses have differences that negatively impact the marriage and that it is not possible for the spouses to continue in the marriage based on those differences. Family law judges rarely inquire into the basis or the validy of the claim of irreconcilable differences, even if one spouse believes that the marriage can be saved without dissolving the marriage.
Also, California is a no-fault divorce state. No fault divorce means that it does not matter to the family law court who is at fault, if anyone, in causing the divorce; California family law judges will not inquire into areas that attempt to prove fault in a the divorce (i.e. infidelity, lack of affection, etc.).
Six Month Waiting Period for California Divorce
California law requires a six month waiting period from the time a divorce is filed to the time it is legally recognized in law. This six month period is created because many California divorce applicants actually change their minds about divorce after filing for a divorce. Incidentally, the spouses are not allowed to live with a person who is not their spouse, in a romantic relationship, during the six month waiting period. Cohabitation with a romantic partner during this six month waiting period can have negative impact on that spouse’s ability to collect spousal support, if any.
Automatic Temporary Restraining Orders (ATROs)
The petition for divorce includes automatic temporary restraining orders (ATROs) designed to stop a spouse from selling, encumbering, or gifting community property, or from acquiring new community debt before the family law judge has a chance to make further orders concerning those assets and debts. These automatic temporary restraining orders also forbid a spouse from ceasing to pay for the other spouse’s medical or dental insurance, car payments, etc., if the paying spouse regularly paid those bills before he or she was served with the divorce petition.
Note: Failure to comply with the ATROS can lead to contempt of court.
Community Property & Debt
There are common issues that come up in many California divorce cases; many of those issues are discussed in debt in other areas of this website (See List of Common Family Law Issues); however, community property and community debt as it relates to divorce deserves extra attention here as it is commonly misunderstood.
Community property is any property or asset acquired during marriage by either spouse, whether vested or not, and whether or not the property is real, personal, or intellectual. This include retirement benefits, goodwill value in a business (jointly or solely owned), cash on hand, securities and bonds, accounts receivable, income from employment, money from trusts, and more. The value of community property, once established, is divided equally at divorce, unless otherwise agreed to under a marital settlement agreement, prenuptial agreeement, or postnuptial agreement. This does not mean that a particular item is divided equally, but rather, the value of community property as a whole is equally divided.
Community debt is any debt acquired by either spouse during marriage. Community debt is usually divided equally at divorce, but family law judges may use equitable factors to assign debt unequally. These equitable factors include, but are not limited to, any or all of the following: 1) which spouses benefited from the community debt, 2) which spouse is more capable of paying for the debt, 3) and which spouse was primarily sought by third parties to repay the debt. For more information see Community Property.
Community Property v. Separate Propert
As stated, all property and debt acquired during the marriage is considered community property and community debt respectively. However, there are exceptions to this rule where prenuptial and postnuptial agreements may predetermine the character of the property, or where a third party contracts with the married spouses to predefined the character of the property. Also, propery acquired by inheretence, or before marriage and after divorce or legal separation is considered the separate property of the acquiring spouse unless the acquiring spouse has commingled that property with community property. For more information on commingling community property see Community Property.
Difference between Divorce, Annulment, & Legal Separation
Divorce is the process of separating the legal relationship between married spouses. An annulment is to make a marriage void from the beginning (as thought the marriage never took place). An annulment is available in very limited circumstances but contrary to popular opinion, an annulment is not always dependent on the length of marriage. A legal separation is a legal accounting for the married couple’s respective rights and responsibilities to assets and debts, whether acquired prior to, during, or after marriage. The main different between a divorce and legal separation is that after a legal separation the married couple remains married, whereas after a divorce, the married couple is no longer married. For more information, see Annulment & Legal Separation.
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