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What You Need to Know Before Filing for Divorce

by Law Offices of David M. Lederman
Jun 15, 2023

The decision to divorce is not an easy one for most people. It is something a spouse may mull over for a long period of time, and for that, the reason is simple: a divorce has consequences. These consequences extend well beyond emotions because they will impact your social, professional, and financial lives. Plus, if you have young children together, that only magnifies the issues with which you must already deal. Knowledge is key to handling and preparing for these potential consequences. In fact, it’s knowledge that will help you ensure your divorce in California goes as smoothly as you could hope it would for someone in your unique circumstances.

Things to Consider Before Filing for Divorce

Property Division

The first thing you should know is that California is a community property state. While most states now follow the equitable distribution principle when it comes to the division of marital property, California remains a 50/50 split state. In other words, everything you have acquired while married, regardless of whether it was paid for with money from only one spouse’s paycheck or your name is not on the title, you are entitled to half of it – or half its value, at least. This is also true about debt – you are responsible for all debts, even if your name is neither on the bill nor the title, so long as the debt was acquired during the marriage. 

Generally, community property (assets and debt) is divided equally between the spouses. The court, however, can take into consideration certain factors and give a little more here versus taking away some there. Factors can include things like earning capacity and economic disparities.

Division of property can get tricky, especially when community property is intertwined with non-community property (for example, a spouse used inheritance funds to place a down payment on a vacation home) or one spouse tries to hide assets from the other spouse (for example, one spouse has opened an offshore bank account without notifying the other spouse). Further, if a prenuptial or postnuptial agreement was signed, the terms – so long as they are valid – can restrict or dictate what property and income belongs to which party. 

Residency Requirements

In terms of residency requirements, California is like most other states: there is a minimum residency requirement. People are sometimes surprised by this requirement because California is, generally speaking, a progressive state, and its adherence to the community property doctrine makes our state an attractive place to divorce. If you just moved here, then you may not be able to file if you do not meet the residency requirements.

To file for divorce in California, at least one spouse must have been a resident of California for a minimum of six months before filing for divorce. Additionally, they must have lived in the county where they file the divorce petition for at least three months. So, there are two layers of residency requirements that must be satisfied before divorce papers can be filed.

Grounds for Divorce

California is a no-fault divorce state, which means that spouses can seek a divorce without having to prove fault or assign blame. Only one of two possible grounds for divorce is mostly used in California, and that is divorce grounds based on irreconcilable differences. Irreconcilable differences is an irremediable breakdown of the marriage. The other possible grounds for divorce is permanent legal incapacity to make decisions, and it may only be used as a grounds for divorce with proof, such as competent medical or psychiatric testimony, that the other spouse permanently lacks the legal capacity to make decisions.

So, former grounds for divorce, like domestic violence, neglect, abandonment, or adultery are no longer grounds for divorce. If any are applicable, then the divorcing party would invoke irreconcilable differences. 

Spousal Support

Spousal support, which is commonly referred to as alimony, may be awarded to the spouse in need of financial assistance following a divorce. The court considers various factors, including:

  • Duration of the marriage
  • Standard of living established during the marriage
  • Earning capacity of each spouse

The purpose of spousal support is to help the lower-earning spouse maintain a similar lifestyle and transition into post-divorce life. There are two types:

  1. Temporary spousal support, and 
  2. Long-term spousal support.

Temporary spousal support are payments to a spouse ordered by the court before the divorce case is final. A party to a divorce seeking temporary spousal support can request temporary payments as soon as divorce papers are filed. Long-term spouse support are payments ordered by the court at the end of the case and are called permanent support orders. 

The use of “permanent,” however, can be misleading because in California, the duration of permanent spousal support depends in part on whether you have been married for ten years or not. If married for 10 years or less, payment of spousal support may be ordered up to half the length of the marriage. If married for longer than 10 years, no specific duration applies but the receiving party is expected to become self-supporting at some point. 

Child Custody and Support

Child custody and child support issues are of utmost importance in divorces involving children. Courts prioritize the best interests of the child when determining custody arrangements. In most cases, joint custody, where both parents share legal and physical custody, is favored. However, the court may grant sole custody if it is deemed in the child’s best interests.

In terms of child support, California employs guidelines to determine the amount of child support to be paid by the noncustodial parent. These guidelines take into account certain factors, including:

  • Parents’ income
  • Number of children
  • Amount of time each parent spends with the children