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Q: What is dissolution of marriage?
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A: Rather than referring to "divorce," California law refers to "dissolution of marriage." Both terms refer to the process by which a marriage between parties is terminated and their respective legal rights and obligations regarding property, child custody, and child and spousal support are determined. There is no fundamental difference between what is called "divorce" in another state and what is called "dissolution of marriage" in California.
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Q: What is a no fault divorce?
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A: Traditionally, divorce was granted on the basis of some marital misconduct such as adultery or physical abuse. In these cases the "guilty" spouse was punished by getting a smaller share of the couple's property or being denied custody of their children while the "innocent" spouse was rewarded for being faithful to the vows of marriage. In a no fault divorce, however, both parties agree that there is no "fault" involved in the grounds for divorce. California is a “no fault” divorce state.
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Q: Because California is a "no-fault" divorce state, does the court ever consider spousal misconduct?
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A: In a few situations, the court will consider spousal misconduct. For example, a California court may look at spousal misconduct when making a custody or support determination in the presence of evidence of domestic violence or a domestic violence conviction. California law provides that in making a property award, the court may consider breach of a spouse’s fiduciary duty to the other spouse (this may include the misappropriation of an asset by one party to the detriment of the other).
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Q: What are the requirements for filing a petition for dissolution of marriage in California?
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A: At least one of the parties must have lived in California for at least 6 months and in the county in which the action is filed for at least 3 months, in order to file a petition for dissolution of marriage.
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Q: Must a parent obtain sole custody in order to be awarded child support?
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A: No. A parent may share both legal and physical custody with the other parent, and, depending upon financial circumstances, may still receive child support based on state guidelines.
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Q: May the provisions in a final dissolution be subsequently changed?
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A: Provisions cannot be changed unless the separation agreement so states, one of the parties commits fraud, or a modification is necessary to correct mistakes in drafting. However, a provision in the law permits modification of spousal support or child support based upon a change in circumstances.
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Q: California is a community property state; what does that mean?
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A: In a community property state, property is classified as either community property or separate property. Community property, but not separate property, will be divided equally in a dissolution of marriage. Community property generally includes income or assets acquired during the course of the marriage, while the parties are living together. Separate property generally includes property owned by a spouse prior to marriage and any gifted or inherited property received during the marriage which was treated as separate property.
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Q: What is the difference between spousal support and alimony?
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A: Generally, there is no difference. Spousal support is the term that California law uses to refer to what is called "alimony" or "maintenance" in other states.
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Q: What does it mean to have a "pro se divorce"?
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A: "Pro Se" is a Latin phrase meaning "for oneself." In California, you do not have to hire an attorney; you may represent yourself in dissolution of marriage cases. However, you may be putting yourself at a serious disadvantage. Most divorces are not straightforward unless there are no marital assets, children, or other joint issues. Given the complexity of the issues, it may be beneficial to employ the services of a professional who is knowledgeable in the law and experienced in the field.
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Q: What is a "summary dissolution?"
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A: In California, marriage may be dissolved by a summary dissolution procedure if all factors on a list of several factors are met. These factors include:
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- Meeting residency requirements;
- An agreeement that irreconcilable differences have caused the irremediable breakdown of the marriage, that the marriage should be dissolved, and that the parties wish the marriage be dissolved;
- Both parties waive the right to appeal the decree of dissolution;
- Both parties waive any right to spousal support;
- Both parties have signed an agreement dividing all of the community assets and liabilities;
- The parties have no children between them, and the wife is not currently pregnant;
- The parties were married less than five years prior to the date the petition is filed;
- Neither party has any interest in real property;
- The parties have not incurred large amounts of debt during the marriage (this amount fluctuates with the cost of living, and other factors);
- The parties' community property assets are less than the statutory amount (this amount fluctuates with the cost of living, and other factors);
- The parties waive any rights to spousal support; and
- At least one adoptive parent is a U.S. citizen.
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