California divorce laws can be found in both statutory law (mostly within the California Family Code) and case law (the State’s published Appellate and Supreme Court decisions). The Family Code, by itself, is hundreds of pages of laws. California divorce laws have been interpreted by our Appellate Court and Supreme Courts over many decades.
We are excited to bring you this guide on California’s divorce laws and we believe you will enjoy it. Before we get into it, there are a few things you must know:
- What you will read in this guide are one or more common questions we have heard husbands and wives ask about different categories of California’s divorce laws. They are not even close to all of the questions or categories. We cover each subject generally and none of the answers are intended to be a detailed statement of California law. That would take a book to write. There are significantly more codes, cases, law and procedure on these topics than what is stated in this guide.
- Our family law firm decided to write this guide on California divorce laws in the format of an FAQ (frequently asked questions). These questions and the answers below them as well as everything else written or referred to in this guide is not about your case. It is not about your specific facts. Please do not rely on anything written in this guide to answer your questions or make decisions on your matter. In other words, this is not legal advice. Legal advice doesn’t come from any guide or article. Legal advice comes from the chosen attorney you hire to represent you.
- When we wrote this guide on California divorce laws, we did so with the assumption you will be represented by an experienced divorce lawyer in California. You should not represent yourself. This guide is not intended to help you represent yourself.
- All of the Family Code sections listed here are those that exist (and the language within them) as of the end of 2015. Laws change which means code sections and its language may change or case law may change the interpretation of California’s divorce laws, and this guide may not be updated by the time you read this.
One last thing – there is a lot of information written here. Take your time, go through it and if your matter is in Orange County, California and you want to set a time to have a strategy session with one of our experienced family law attorneys, please contact us.
Ready to get started? Let’s do it. Here is a table of contents that you can click on to jump ahead if you wish.
- What do California divorce laws state about ordering attorney fees?
- What are California divorce laws on alimony?
- Does my spouse’s adultery matter?
- How can my spouse and I divide our assets under California divorce laws?
- What protections do our divorce laws provide our children due to my spouse’s alcoholism and substance abuse?
- California divorce laws and bifurcation of marital status
- California divorce laws and division of bank accounts
- Do our divorce laws allow a spouse to keep property or assets acquired before marriage?
- California divorce laws and child custody
- What do California divorce laws consider community property?
- How is child support calculated under our divorce laws?
- How do our State’s divorce laws change?
- How are debts divided under California divorce laws?
- California divorce laws and taking a spouse’s default
- California divorce laws and date of separation
- What is the impact of domestic violence under our divorce laws?
- What disclosure obligations do my spouse and I have to each other under California divorce laws?
- California divorce laws and reimbursement claims related to the home
- Do our State’s divorce laws say anything about gifts between spouses during the marriage?
- California divorce laws and maintaining health insurance for a spouse and children
- California divorce laws and inherited property
- California divorce laws and the IRA
- What do joint or sole legal and physical custody mean under our divorce laws?
- California divorce laws and legal separation
- California divorce laws and child custody move away cases
- What is the 6 month waiting period?
- How are pensions and retirements divided under our divorce laws?
- California divorce laws and the child support and spousal support calculator
- What is considered separate property under our divorce laws?
I do not have the same access to money that my spouse does. Can I get a court order for my spouse to pay my attorney fees?
California Family Codes 2030 and 2032 are very helpful to understand on this topic. Here are part of code sections (not all of it) and pay special attention to the sections we have bolded, below. It will help generally explain what the Court considers. We have also written an article on the subject of attorney fees in a divorce.
Parts of Family Code 2030 state:
(a) (1) In a proceeding for dissolution of marriage, nullity of marriage, or legal separation of the parties, and in any proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal representation, including access early in the proceedings, to preserve each party’s rights by ordering, if necessary based on the income and needs assessments, one party, except a governmental entity, to pay to the other party, or to the other party’s attorney, whatever amount is reasonably necessary for attorney’s fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding.
(2) When a request for attorney’s fees and costs is made, the court shall make findings on whether an award of attorney’s fees and costs under this section is appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties. If the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney’s fees and costs. A party who lacks the financial ability to hire an attorney may request, as an in pro per litigant, that the court order the other party, if that other party has the financial ability, to pay a reasonable amount to allow the unrepresented party to retain an attorney in a timely manner before proceedings in the matter go forward.
Part of Family Code 2032 states:
(a) The court may make an award of attorney’s fees and costs under Section 2030 or 2031 where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties.
(b) In determining what is just and reasonable under the relative circumstances, the court shall take into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party’s case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in Section 4320. The fact that the party requesting an award of attorney’s fees and costs has resources from which the party could pay the party’s own attorney’s fees and costs is not itself a bar to an order that the other party pay part or all of the fees and costs requested. Financial resources are only one factor for the court to consider in determining how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances.
(c) The court may order payment of an award of attorney’s fees and costs from any type of property, whether community or separate, principal or income.
My spouse is causing delays and also taking unreasonable positions that is making this divorce more expensive than it should be. Can I seek attorney fees against my spouse for this reason?
California Family Code 271 states (pay special attention to the parts we have bolded):
(a) Notwithstanding any other provision of this code, the court may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney’s fees and costs pursuant to this section is in the nature of a sanction. In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties’ incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting an award of attorney’s fees and costs is not required to demonstrate any financial need for the award.
(b) An award of attorney’s fees and costs as a sanction pursuant to this section shall be imposed only after notice to the party against whom the sanction is proposed to be imposed and opportunity for that party to be heard.
(c) An award of attorney’s fees and costs as a sanction pursuant to this section is payable only from the property or income of the party against whom the sanction is imposed, except that the award may be against the sanctioned party’s share of the community property.
What is the purpose of California divorce laws on temporary alimony?
California divorce laws on temporary alimony are designed to maintain the status quo. Typically, an in-depth evaluation of the marital standard of living is not done. Instead, in most courts, the court will rely on the same computer program that calculates child support. This computer program takes certain inputted data (such as income as one example) and determines what temporary alimony should be. The Court is not required to follow the computer program. It can do so, choose not to do so or choose to partially do so and adjust the number.
How does the court determine alimony at the end of the divorce?
The court does not rely on the computer program to determine alimony at the end of the divorce.
California Family Code 4330(a) states:
(a) In a judgment of dissolution of marriage or legal separation of the parties, the court may order a party to pay for the support of the other party an amount, for a period of time, that the court determines is just and reasonable, based on the standard of living established during the marriage, taking into consideration the circumstances as provided in Chapter 2 (commencing with Section 4320).
The court is required to conduct an analysis of Family Code 4320. Family Code 4320 is designed to look at the marital standard of living.
What is a Gavron warning?
California Family Code 4330(b) states:
(b) When making an order for spousal support, the court may advise the recipient of support that he or she should make reasonable efforts to assist in providing for his or her support needs, taking into account the particular circumstances considered by the court pursuant to Section 4320, unless, in the case of a marriage of long duration as provided for in Section 4336, the court decides this warning is inadvisable.
We have written an article on Gavron Warnings in California divorces. Please check it out.
What are California divorce laws on post judgment modification of alimony?
Post judgment modification of alimony is typically based on a request for a downward modification, upward modification or even termination of alimony. The laws regarding modification of alimony are complicated and beyond the scope of this guide. However, in general, California divorce laws require a spouse who seeks the modification to show a material change of circumstances that has arisen since the order for alimony went into effect. The most common change of circumstance is a change in income although that is one of several grounds for a modification.
I am thinking about living with my significant other. I am currently receiving alimony from my ex spouse. Will this affect my alimony payment?
California Family Code 4323 states:
(a) (1) Except as otherwise agreed to by the parties in writing, there is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabiting with a nonmarital partner. Upon a determination that circumstances have changed, the court may modify or terminate the spousal support as provided for in Chapter 6 (commencing with Section 3650) of Part 1.
(2) Holding oneself out to be the spouse of the person with whom one is cohabiting is not necessary to constitute cohabitation as the term is used in this subdivision.
(b) The income of a supporting spouse’s subsequent spouse or nonmarital partner shall not be considered when determining or modifying spousal support.
(c) Nothing in this section precludes later modification or termination of spousal support on proof of change of circumstances.
Therefore yes, cohabitation with a non-marital partner can have an impact on spousal support.
Does my spouse’s remarriage to another person automatically cut off alimony I am paying my spouse or do I have to go to court to have it terminated?
California Family Code 4337 states:
Except as otherwise agreed by the parties in writing, the obligation of a party under an order for the support of the other party terminates upon the death of either party or the remarriage of the other party.
I have heard that California divorce laws state that once a marriage reaches the 10 year mark, alimony is automatically forever. Is that true?
No, just because a marriage from the date of marriage to data separation reaches the 10 year mark does not mean that spousal support will automatically last for the rest of either spouse’s life. The amount of alimony and how long it lasts is based on the individual facts of a case.
Family Code 4336 states:
(a) Except on written agreement of the parties to the contrary or a court order terminating spousal support, the court retains jurisdiction indefinitely in a proceeding for dissolution of marriage or for legal separation of the parties where the marriage is of long duration.
(b) For the purpose of retaining jurisdiction, there is a presumption affecting the burden of producing evidence that a marriage of 10 years or more, from the date of marriage to the date of separation, is a marriage of long duration. However, the court may consider periods of separation during the marriage in determining whether the marriage is in fact of long duration. Nothing in this subdivision precludes a court from determining that a marriage of less than 10 years is a marriage of long duration.
(c) Nothing in this section limits the court’s discretion to terminate spousal support in later proceedings on a showing of changed circumstances.
(d) This section applies to the following:
(1) A proceeding filed on or after January 1, 1988.
(2) A proceeding pending on January 1, 1988, in which the court has not entered a permanent spousal support order or in which the court order is subject to modification.
My spouse committed adultery. Does that matter under California divorce law?
Generally, no. California is a no-fault state and just because there is adultery does not mean that will have an impact on the Family Court’s decisions. There are certain potential circumstances where adultery may become an issue and one of the more common ones is a situation where a spouse who commits adultery uses community property funds on the other person with whom he or she committed the adultery. This may give rise to a reimbursement claim of community property funds. Such situations really depend on the individual facts of a case so it isn’t a one size fits all scenario. This is not the only way that adultery may become indirectly relevant under California divorce laws.
Are spouses able to negotiate division of assets as they wish?
Yes, spouses are able to negotiate division of assets under California divorce law. Family Courts generally prefer that spouses come to an agreement regarding asset division. However, the Court still does make the final call as to whether the Court will sign the stipulated judgment or marital settlement agreement.
If my spouse and I cannot agree on the division of assets, what does California divorce law state should happen?
If two spouses cannot agree on the division of assets, that issue is typically left for the Family Court to decide. It does not however have to be an all or nothing scenario. Spouses may disagree on certain asset division but still agree to others. A disagreement on division of some assets does not have to cause division of each and every asset to be determined by the Court in a contested hearing.
Does California divorce law require an asset, like a home, to be sold if my spouse and I cannot agree on its division?
An asset such as a home or any property does not have to be sold if the spouses do not agree on its division. Courts typically have discretion on how to divide assets. Two common examples are ordering a buyout of an asset or offsetting one asset in whole or in part with another.
A property that my spouse and I acquired during the marriage is only in my name. Does title to an asset control whether it is community or separate property?
Title, by itself, does not necessarily control whether an asset is community or separate property. For example, if a home is purchased in California during the marriage with community property funds but only placed in one spouse’s name, that does not mean the spouse who is solely on title receives the house as his or her sole property. This issue is complicated and title can become a factor under certain circumstances. Those circumstances are beyond the scope of this guide. You should seek the advice of an experienced divorce lawyer regarding your specific situation.
What protections do California divorce laws provide our children due to my spouse’s alcoholism and substance abuse?
My spouse has a substance abuse problem. How does that factor into the court’s decisions on child custody and visitation?
A spouse’s substance abuse problem is a factor under California divorce laws and specifically child custody cases. The habitual or continuous use of any substance that impacts the children’s best interest is something the court can and often does take into consideration when evaluating issues such as legal and physical custody. Courts may however require corroboration of the substance abuse issue, versus simply relying on a “he said, she said” situation.
On that issue, California Family Code 3011 says the following on substance abuse issues (we have cut out the parts of the code that don’t relate to substance abuse).
In making a determination of the best interest of the child in a proceeding described in Section 3021, the court shall, among any other factors it finds relevant, consider all of the following:
…(d) The habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances by either parent. Before considering these allegations, the court may first require independent corroboration, including, but not limited to, written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical facilities, rehabilitation facilities, or other public agencies or nonprofit organizations providing drug and alcohol abuse services. As used in this subdivision, “controlled substances” has the same meaning as defined in the California Uniform Controlled Substances Act, Division 10 (commencing with Section 11000) of the Health and Safety Code.
(e) (1) Where allegations about a parent pursuant to subdivision (b) or (d) have been brought to the attention of the court in the current proceeding, and the court makes an order for sole or joint custody to that parent, the court shall state its reasons in writing or on the record. In these circumstances, the court shall ensure that any order regarding custody or visitation is specific as to time, day, place, and manner of transfer of the child as set forth in subdivision (b) of Section 6323.
Can the court order drug or alcohol testing?
Yes. Please read our article on drug and alcohol testing in a child custody case.
I’ve heard that I can end the status of my marriage even though my divorce case is still ongoing. Is that true?
Yes, a marital status may under certain circumstances be bifurcated and ended even while the divorce is still pending. However, there are often certain conditions that have to be met before this occurs. Some of those are outlined in California Family Code 2337. This issue can get complicated and the advice of a family law attorney is essential.
What do California divorce laws say about division of bank accounts?
Bank accounts are typically treated like any other asset and if they are community property (the funds in it) in their entirety, they are usually divided equally. For example, if at the date of separation the spouses had $25,000 in a community property bank account and all of those funds are clearly community property, each spouse would typically be entitled to half of that account. The issues become more complicated if one spouse claims the bank account is not community property, one spouse claims money from that account had to be spent on community property funds after the date of separation, etc. We cannot discuss every hypothetical here but an experienced divorce attorney will be able to advise you how a bank account may be divided in your case.
I have assets that I acquired before the marriage. Will I get to keep the asset as my separate property?
Assets acquired prior to the marriage are typically considered separate property. However, it is possible a separate property asset may have as part of it a community property interest that was created during the marriage.
As one of many examples, if a home is acquired prior to the marriage, the spouse who acquired it would have a separate property interest. However, if the mortgage payments are made during the marriage with community property funds, the principle amount owed on the mortgage is reduced as a result and the home appreciates in value, a community property interest may be acquired in the home. In our example, these are not the only factors. In our example, this is called a Moore-Marsden claim.
Separate from Moore-Marsden, there are many different types of examples of ways a separate property asset make take on a community property character or interest, in whole or in part. Homes, bank accounts, businesses and various other assets and even debts may be separate property if acquired prior to the marriage but could still take on a community property character depending on the facts of the specific case.
How does a family law judge determine the custody and parenting time he or she will order?
The overriding principle under California divorce laws is the children’s best interest. That is what courts focus on when evaluating custody and parenting time. Please check out our in depth guide on California custody laws for much more information.
I have heard that California divorce laws favor the mother. Is that really true?
California Family Code 3040 states the court “shall not prefer a parent as custodian because of that parent’s sex.”
While we realize there is still a perception that there is gender bias and it is possible that a judge may have a bias, our family law attorneys have never experienced this during the representation of our clients. Perhaps that is because we are vigilant to ensure such bias does not occur.
Here is an article on common myths in divorce and custody cases.
Do California divorce laws prefer a particular parenting schedule?
There is no one, preferred schedule in a child custody case. The court has broad discretion to determine what parenting time schedule is in the child’s best interest. In Orange County, we do have Orange County Parenting Guidelines which are helpful in determining different parenting schedules that may fit different circumstances. We highly encourage you to check it out.
What is community property?
California Family Code 760 defines community property as:
“Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.”
The “except as otherwise provided by statute” part is very important. California community property law is much more complicated than section 760. And there are many Family Code sections (statutes) and case law that discuss community property law. Discussing each of those is of course beyond the scope of this article.
How is child-support calculated under California divorce law?
Child support is calculated under a guideline formula. The formula is stated in Family Code 4055. It is complicated. Fortunately, there are computer programs that do the math.
What are the most important factors when calculating child support?
There are several factors that go into a child support calculation but the two that have the most impact are parenting time (calculated as a percentage) and each parent’s income.
How is parenting time of each parent determined for child support purposes?
Different lawyers and different judges may calculate parenting time in different ways but the most accurate way to calculate it is by hours. For example, there are 8760 hours in a year and although it takes a little bit longer, calculating parenting time by the amount of hours, including overnight, that one parent has a year provides the most accurate percentage. Our family law firm has a template that counts the hours based on the most common parenting plans. That way, we don’t have to sit there and do math.
Additional reading: we encourage you to read our comprehensive guide on California child support laws.
How does California divorce law change from year to year?
California divorce law is similar to most other areas of law. Typically, one to two times per year (typically January and July), our California legislature will amend existing laws, repeal them or add new laws. In addition, our California appellate courts and Supreme Court make decisions that can have a significant impact on how laws are interpreted.
My spouse and I have substantial debts. How does that work under California divorce law?
Debts are divided much the same way as assets under California divorce law. A community debt is typically divided equally. A debt that is entirely the separate property of one spouse is typically assigned to that spouse. Certain debts may be both community and separate. Debts can also be offset against other debts and can even impact how assets are divided.
If my spouse does not respond to the divorce petition, can I take my spouse’s default?
Yes. Assuming that you have properly completed the summons and petition, as well as related documents to lay out the community and separate property assets and debts and you have properly served everything, you may take your spouse’s default. The default process under California law can get complicated and failure to follow proper procedure can result in a judgment that is void, voidable and subject to set aside. We strongly encourage you to seek the advice of an experienced family law attorney before taking a default.
Assuming I have properly taken my spouse’s default, how do I make that default into a judgment?
In Orange County, at the request of the spouse who has had the proper default entered, the court will set a default prove–up hearing. Certain documents including a judgment have to be submitted before the prove–up hearing in a timely manner. At the hearing, the spouse, through his or her counsel, requests the judgment be entered by “proving up” the merits of its terms. The court does not have to enter the judgment under the terms requested by the spouse.
We have written an article on the date of separation in a California divorce and its importance under our laws. Please check it out.
What is considered domestic violence under California divorce laws?
California Family Code 6203 states:
(a) For purposes of this act, “abuse” means any of the following:
(1) To intentionally or recklessly cause or attempt to cause bodily injury.
(2) Sexual assault.
(3) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another.
(4) To engage in any behavior that has been or could be enjoined pursuant to Section 6320.
(b) Abuse is not limited to the actual infliction of physical injury or assault.
Family Code 6320 states:
(a) The court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating as described in Section 528.5 of the Penal Code, falsely personating as described in Section 529 of the Penal Code, harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members.
(b) On a showing of good cause, the court may include in a protective order a grant to the petitioner of the exclusive care, possession, or control of any animal owned, possessed, leased, kept, or held by either the petitioner or the respondent or a minor child residing in the residence or household of either the petitioner or the respondent. The court may order the respondent to stay away from the animal and forbid the respondent from taking, transferring, encumbering, concealing, molesting, attacking, striking, threatening, harming, or otherwise disposing of the animal.
(c) This section shall become operative on July 1, 2014.
As you can see, the definition of “abuse” and on what facts the court may issue a restraining order is broad. The above statute is not the entirety of California family law on this topic. The above are two of the more common code sections on this topic.
What is a temporary restraining order?
A temporary restraining order is an order that the court may grant on an emergency basis. Typically, this order will last approximately three weeks until there is a formal hearing on the domestic violence allegations.
What is a permanent restraining order?
A permanent restraining order can be permanent but it usually isn’t. Such a restraining order typically lasts between six months to five years depending on the severity of the domestic violence. It could also be less or more. The hearing on this restraining order takes place after the emergency one, regardless of whether the emergency one is granted or denied.
Please read our page on seeking or opposing family law restraining orders.
How does the courts decide whether to grant or deny a restraining order?
Restraining orders are governed by the preponderance of the evidence standard. That means if the evidence more likely than not supports proper grounds to grant a restraining order, the court will grant it. This is a very involved process that includes the court’s consideration of the facts and the law. It includes the court weighing each party’s testimony, each witness’ testimony, any documentary evidence, credibility issues and more.
If the court finds that domestic violence has occurred, what impact could that have on the divorce?
There are multiple different impacts that a finding of domestic violence may have on a divorce. They include but are not limited to an impact on child custody, child visitation, spousal support and more.
Read more about domestic violence and California divorce laws:
- We have written an article on the impact of a domestic violence finding on spousal support.
- We have also written an article on the impact of domestic violence on child custody.
I have heard that my spouse and I have to exchange disclosures. What are those?
Disclosures are a set of forms and documents that must be exchanged so that each spouse knows the nature and extent of each and every community and separate asset and debt. It also includes an income and expense declaration. There are certain Judicial Council forms that each spouse must complete as well as certain documents that are not forms. The disclosure process is one of the most important parts of a California divorce case and California divorce laws can be very unforgiving and even punitive if there is not full and complete disclosures.
The advice of an experienced divorce attorney is important during the disclosure process.
I have completed my disclosures but my spouse refuses to do so. What can I do?
There are many options available in such a situation. While we cannot list them all here, two of the more common ones are a motion with the court to compel your spouse and order him or her to produce complete and accurate disclosures as well as an attorney fee request.
I completed my disclosures but I inadvertently left out an important asset. Can I modify my disclosures?
Yes. You can speak with your lawyer about serving an amended disclosure which includes what was left out. Hopefully, you are pre-judgment when you discover this. Because the process becomes more complicated if this is discovered post judgment and the advice of a family law attorney is once again very important in such a circumstance.
What happens if my spouse lies on the income and expense declaration?
We have written a great article on lying on an income and expense declaration and some of the serious consequences that could come with that.
My spouse moved out of our family residence and I stayed. I have been making the mortgage payments wile exclusively living there. Can I seek half of the mortgage payments from my spouse?
This is a common occurrence. If the house is community property, under some situations the spouse who lives there is creating something called an “Epstein credit” for himself or herself. That is because the other spouse should be paying one half of the mortgage payment on the community property residence. However, since the spouse who lives there has exclusive possession of the home, to the exclusion of the other spouse, the spouse who does not live there has a “Watts charge” against the other spouse for one half of the rental value. In many instances, if the total mortgage payment is the same or very close to the total rental value, the credit and charge may wash out. This is a simplified way of looking at these credits and charges although the result can be significantly different depending on the individual facts of the case.
I put money as a downpayment on the purchase of a home my spouse and I bought during the marriage but the money came from my separate property funds. Can I get the downpayment money back?
We have written an article regarding the separate property down payment toward a purchase of a community property home. It refers to Family Code 2640 and how it may apply in such a situation. Please read the article for more information.
My spouse gave me gifts of jewelry during the marriage. Do I get to keep that or is that community property?
Typically, gifts of jewelry or other items during the marriage by one spouse to another spouse are considered the receiving spouse’s separate property. A very common example would be a birthday present or Christmas gift. This may be disputed and that usually involves the intent (whether it was intended as a gift) and/or value compared to the lifestyle (for example there is a big difference between giving someone a $5,000.00 pair of earrings and calling it a gift versus claiming the $80,000.00 BMW was really intended as a gift) . If there is a factual dispute regarding whether the item was intended as a gift, that creates a host of other issues that need to be resolved.
My spouse has health insurance for me and my kids. Is my spouse required to maintain that insurance during the divorce?
California Family Code 3751 states, in part: “In any case in which an amount is set for current support, the court shall require that health insurance coverage for a supported child shall be maintained by either or both parents if that insurance is available at no cost or at a reasonable cost to the parent.” The statute then goes on to explain what is considered reasonable cost and has several other provisions that a family law attorney can explain to you and how it may apply to your situation.
Separate from this code section, the California Standard Family Law Restraining Orders (they are on the back of a summons) state neither spouse may engage in “cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage, including life, health, automobile, and disability held for the benefit of the parties and their child or children for whom support may be ordered.”
We have written an article regarding these California family law temporary restraining orders.
I inherited property during my marriage. What do California divorce laws say about inherited property?
Inherited property is typically the separate property of the spouse who received the inheritance. What sometimes will complicate this issue is when an inherited property is commingled with community property or the other spouse is placed on title to inherited property. An experienced family law attorney (who may get a forensic accountant involved) will be necessary to help determine the characterization of the inherited property.
How are individual retirement accounts (IRAs) divided in a divorce?
An Individual Retirement Account, also called an IRA, is generally divided like any other asset. If the entire IRA is community property, then it may be divided through its liquidation, transfer of the community property portion or other means such as offsetting it against other community property assets. Liquidating an IRA or taking other action related to it can have tax consequences and the advice of a tax professional is important.
What is joint legal custody?
California Family Code 3003 states:
“Joint legal custody” means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.
We have written a comprehensive article on legal custody in California. We encourage you to check it out.
What is sole legal custody?
California Family Code 3006 states:
“Sole legal custody” means that one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.
What is joint physical custody?
California Family Code 3004 states:
“Joint physical custody” means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents, subject to Sections 3011 and 3020.
Spouses sometimes get caught up in the label of joint physical custody. The label for physical custody is not as important as the actual parenting time the parents spend with the children. There are situations where a court order may state the parents have joint physical custody but the reality is the parenting time does not create a true joint physical custody situation because one parent does not have sufficient parenting time for there to be true joint physical custody. The reverse can also be true.
What is sole physical custody?
California Family Code 3007 states:
“Sole physical custody” means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation.
My spouse wants a legal separation but I want a divorce. Do I have to go along with what my spouse wants?
If one spouse wants a legal separation and the other one requests a divorce, a divorce proceeding will commence. A legal separation is typically something both spouses have to agree to. You cannot force a spouse to remain married.
If my spouse and I both agree on a legal separation, can we still resolve all of our division of assets, debts and support issues?
Yes. A legal separation proceeding is exactly the same as a divorce proceeding in the sense that it allows both spouses to resolve all of the same issues. If the spouses cannot come to a resolution, the court can make the decision.
How does the court decide under California divorce laws whether a parent should be allowed to move with the child?
We have written an in-depth article about California move away cases. Please check it out.
I have heard that I have to wait six months before I can resolve my divorce case. Is that true?
No. The 6 month waiting period just applies to ending the status of your marriage. You can resolve your divorce case and the issues such as property division, debt division, support, custody, etc. before that 6 month period.
How are pensions or retirements such as a 401(k) typically divided?
Pensions, retirements and/or a 401(k) are typically divided through something called a qualified domestic relations order or QDRO for short. At our family law firm, we refer the preparation of these QDROs to lawyers who are experienced in handling them. That is what many family law attorneys do.
I have heard there is a computer program that is used to determine child support and spousal support. Is that true?
That is partially true. There is a computer program that is typically used to determine child support. The two most common programs are called Dissomaster and x-spouse. This same program may be used to determine temporary spousal support but not the final spousal support number. The final spousal support number and any posted judgment modification of spousal support is determined based on the California Family Code sections such as, as one example, Family Code 4320. A court is not permitted to rely on a computer program for the final, sometimes called permanent, spousal support number or a post judgment modification of it.
What does California divorce law state is separate property?
The following California Family Code sections are a starting point to help understand what our State considers separate property.
Family Code 770 states:
(a) Separate property of a married person includes all of the following:
(1) All property owned by the person before marriage.
(2) All property acquired by the person after marriage by gift, bequest, devise, or descent.
(3) The rents, issues, and profits of the property described in this section.
(b) A married person may, without the consent of the person’s spouse, convey the person’s separate property.
Family Code 771 states:
- The earnings and accumulations of a spouse and the minor children living with, or in the custody of, the spouse, while living separate and apart from the other spouse, are the separate property of the spouse.
- Notwithstanding subdivision (a), the earnings and accumulations of an unemancipated minor child related to a contract of a type described in Section 6750 shall remain the sole legal property of the minor child.
Family Code 772 states:
After entry of a judgment of legal separation of the parties, the earnings or accumulations of each party are the separate property of the party acquiring the earnings or accumulations.
The subject of separate property is a complicated one and it is not enough to simply rely on a few code sections. There is extensive case law and other statutory law that deals with the separate property characterization of assets and debts. You will need to retain an experienced family law attorney regarding your separate property related questions.
Want some additional reading on the topic of California divorce?
We have written an informative guide on the California divorce process. It is in a similar FAQ format and it provides a road map for husbands and wives from the initial divorce petition to the final judgment.
Spousal support can be simple. It can be complex. Want to learn more about it? We have a detailed guide on alimony in California. It goes through its calculation, determination, modification and termination. We think you will enjoy it.
Most divorce cases settle. But for the ones that go to trial, it’s a good idea to know what divorce trials are all about. Want to learn more? We have written an article entitled California Divorce Trials with Questions, Preparation and Keys to Winning.