California Divorce Laws Have Six Essential Parts You Have to Understand

Divorce Laws on Custody, Support, Assets, Debts and Fees

California divorce laws are both simple and complex.

Some of our laws are common sense. Some require a deeper understanding. In this guide, we will focus on 6 key areas.

1. Custody and visitation
2. Child support
3. Alimony
4. Division of assets
5. Division of debts
6. Attorney's fees, costs, and legal expenses

Our family law firm handles all kinds of divorces, from moderate to high complexity. We have an extensive understanding of California's divorce laws and can help you navigate your situation. We know you will find this guide helpful, and speaking with us will be even more helpful. Contact us if you want to discuss your California divorce.

Let's get into California's divorce laws on these six important topics.

California Divorce Laws on Child Custody and Visitation

Child custody and visitation laws focus on a child's best interest. That sounds simple, but contested custody in a divorce case rarely is, especially when young children are involved. We will now cover California law on the different types of custody, the legal factors that affect custody decisions, and how to determine the visitation (parenting time) schedules.

Types of Custody in California

California law divides child custody into two categories: legal custody and physical custody.

1. Legal Custody: Legal custody refers to a parent's authority to make important decisions about the child's upbringing, including education, health, safety, and general welfare. Legal custody is awarded solely to one parent (called sole legal custody) or jointly to both parents (called joint legal custody). California law favors joint legal custody arrangements unless compelling reasons exist to grant sole legal custody to one parent.
2. Physical Custody: Physical custody refers to where the child will live day-to-day. Similar to legal custody, physical custody can be solely to one parent (sole physical custody) or shared between both parents (joint physical custody). California law favors frequent and continuous contact with both parents, so each parent has substantial time with the child. However, that does not mean California law favors a specific custody schedule. The exception to frequent and continuous contact is when that substantial contact is contrary to the child's best interest.

Legal Factors Considered in Custody Decisions

California law prioritizes the best interests of the child. Several legal factors influence the choice of custody arrangement consistent with the best interest standard.

1. Child's Health and Safety: The law requires a court to determine each parent's ability to provide a safe and stable environment for the child. The law mandates the court consider a history of domestic violence, child abuse, substance abuse, neglect, or inability to care for the child.
2. Child's Relationship with Each Parent: The law asks the court to examine the child's bond and relationship with each parent. The goal is to maintain meaningful and ongoing relationships with both parents. Suppose a parent was less involved in a child's life during the marriage. In that case, that does not mean that parent must receive minimal parenting time. Because California law favors frequent and continuous parenting time, a parent who wants more time and can handle it often gets it.
3. Parenting Skills and Capacity to Parent a Child: The law requires evaluating each parent's ability to meet the child's physical, emotional, and developmental needs. Important factors include parenting skills, involvement in the child's life, and willingness to facilitate the child's relationship with the other parent. The last factor is the one most often forgotten, but it is one California law specifically considers.
4. Child's Wishes: Depending on the child's age and maturity, the law states the court may consider the child's preferences regarding parenting time. The consideration usually starts at age 12, although no specific age requirement exists. By age 14, it is common for courts to listen more to a child's preference. While California law allows a court to listen to the child, that does not mean the court must do what the child wants. A child's wishes are not determinative. The law still requires an evaluation of the best interest.

Developing a Visitation (Parenting Time) Schedule

Visitation schedules (parenting time) determine when the child will spend time with each parent.

Common visitation schedules in California include:

1. Fixed Visitation Schedule: This schedule provides specific days and times for visitation. It offers predictability and consistency for both parents and the child. One common example is different types of 50/50 custody schedules.
2. Flexible Visitation Schedule: A flexible schedule allows parents to adjust visitation arrangements based on their work schedules, travel plans, and other commitments. It provides greater flexibility but requires effective communication and cooperation between parents. A schedule like this only works for parents who co-parent and communicate well.
3. Supervised Visitation: where a parent may be a danger to a child, the law allows the court to order supervised visitation. During supervised visits, a professional supervisor oversees the interaction between the parent and child. Sometimes, parents agree to a non-professional supervisor who may be a family member or friend.
4. Virtual Visitation: With technological advancements, virtual visitation through video calls or online platforms is standard, especially for parents who live far apart. Virtual visitation allows parents to maintain regular contact with their child, supplementing in-person visits.

Let's move on to California divorce laws on child support.

California Divorce Laws on Child Support

Child support prioritizes children's well-being and ensures both parents contribute financially to their upbringing. Let's look at child support calculation, enforcement, and modification under California law.

Calculation of Child Support

Child support is calculated based on statewide guidelines that consider several factors, including each parent's income, the time each parent spends with the child, each parent's tax filing status and exemptions, pre or post-tax health insurance premium costs, and other factors. The statewide uniform guideline formula is usually calculated using a software program. There are two popular ones on the legal market.

California law allows the family court to deviate from the statewide uniform guideline formula, but the rules are strict.

The California Family Code states the duty to pay child support continues as to an unmarried child who has attained 18 years of age, is a full-time high school student (unless excused as we explain below), and who is not self-supporting, until the child completes the 12th grade or attains 19 years of age, whichever occurs first. California law also states a child is excused from the requirement to be a full-time high school student if the child has a medical condition documented by a physician that prevents full-time school attendance.

The law allows parents to agree to a longer child support duration. California law even allows for adult child support in certain circumstances.

Enforcement of Child Support Orders

Court orders are legally binding. Where a parent fails to pay court-ordered child support, the law has enforcement mechanisms in place, including:

1. Income Withholding Orders: Employers can be ordered to withhold child support payments directly from the parent's paycheck.
2. Interception of Tax Refunds: The California Department of Child Support Services (DCSS) has the authority to intercept federal and state income tax refunds to collect past-due child support.
3. Driver's License Suspension: Failure to pay child support can result in the suspension of the non-paying parent's driver's license.
4. Credit Reporting: Delinquent child support payments may be reported to credit bureaus, negatively affecting the non-paying parent's credit score and financial standing.
5. Contempt Proceedings: If a parent fails to pay child support despite court orders, they may be subject to family law contempt proceedings, which can result in fines, community service, or even imprisonment.

Modification of Child Support Orders

Suppose there has been a significant change in circumstances. In that case, the law gives parents the right to seek child support modification. Common reasons for modifying child support orders include changes in income and the time each parent spends with the child.

However, those are not the only two reasons. To request a modification, either parent can file a written modification request with the court with facts and evidence that support the modification.

We will now move on to alimony.

California Divorce Laws on Alimony

Alimony laws, also called spousal support, is a crucial part of divorce proceedings where one spouse outearns the other.

In a divorce, alimony provides financial support to spouses based on various factors.

Types of Alimony in California

Alimony takes two primary forms.

1. Temporary Alimony: Also known as "pendente lite" support, California divorce laws allow the court to order temporary alimony to provide financial support to a spouse until a final divorce judgment. Temporary alimony allows both spouses to maintain the pre-separation status quo during the divorce.
2. Alimony at the Judgment Phase: The alimony in the divorce judgment may not be the same amount as the temporary alimony. The alimony in the judgment provides ongoing support for a set duration or an open-ended time.

Factors Considered in Alimony Awards

For temporary alimony orders, the law allows a court to rely on the same computer program that calculates child support to determine alimony. And that is precisely what courts often do.

For the alimony in the judgment, the law does not allow the computer program to determine it. Family Code section 4320 is the key to the alimony amount. These include each spouse's need, ability to pay alimony, marital standard of living, and several other factors.

Modification and Termination of Alimony

California divorce law allows alimony to be modified or terminated during and after the divorce unless the spouses agree to make the alimony unmodifiable. The common reasons are.

1. Change in Circumstances: Either spouse may ask the court to modify alimony if there has been a significant change in circumstances, such as a change in income, ability to pay, need, retirement, and other reasons. Even a passage of time and a spouse's failure to try to contribute to their support may be a legal basis for modification.
2. Cohabitation or Remarriage: Alimony ends if the recipient spouse remarries or enters a new domestic partnership. If the recipient spouse cohabitates with a non-marital partner, there is a rebuttable presumption of reduced need for alimony. The spouses can agree around such laws.
3. Death of Either Spouse: Alimony terminates upon the death of either spouse unless the spouses agree to do something different in their judgment or other written agreement.

California Divorce Laws on the Division of Assets

California divorces often involve the division of assets. The assets may be extensive, modest, or minimal. California law for a divorce focuses on dividing community property equally between the spouses and awarding a spouse's separate property to the spouse entitled to that. Some assets are partially community and separate. A common example is a home acquired during the marriage where the downpayment came from a separate source.

What is the Difference Between Community and Separate Property?

1. Community Property: Community property includes assets acquired by either spouse during the marriage with marital funds, regardless of which spouse earned the income. This typically includes income earned, vehicles, bank accounts, retirements, real estate such as a marital home, businesses created, investments made, and more.
2. Separate Property: Separate property is assets acquired by either spouse before the marriage, after separation, or during the marriage through inheritance, gift, or other separate sources. Separate property belongs to the spouse who acquired it.

Factors Influencing Asset Division

When dividing marital assets in a California divorce, the court considers various factors to ensure a proper division consistent with California divorce law.

1. Valuation of community property: California law does not require spouses to value assets before they divide them, although it is a bad idea not to value them if the assets have moderate to significant value, such as a successful business, as one example.
2. Sale of community property: California divorce law allows spouses to sell property and agree on the sale terms.
3. Trading community property: Spouses can trade one or more community property assets for other assets of the same or similar value.

California Divorce Laws on Dividing and Untangling Debt

Divorce often involves dividing debts accumulated during the marriage. Debts may be owed now or may become debts later (potential debt or liability).

Like assets, a debt or liability may be a community obligation or a separate one. It can also be a mixed obligation where part is community and part is separate.

The "type" of debt rarely matters under California divorce laws. It may be a mortgage, car loan, credit card debt, or personal loan.

However, there are exceptions. As one example, California law created an exception for student loan debt and how it is handled in a divorce. There are other examples.

Factors Influencing Debt Division

The following are the most important when dividing debts and liabilities under California's divorce laws.

1. The Date the Debt was Incurred: When was the debt incurred? That matters because if a debt predates the marriage, it is usually a separate debt. If it was during the marriage, it is often a community debt, although not always. Debts incurred after separation are also usually the separate property of the spouse who incurred it. However, the one thing you should know about California divorce laws is that there are exceptions to these rules.
2. Purpose of the Debt: California law considers the purpose for which the debt was incurred. Debts used to benefit the marriage, such as household expenses or joint investments, are typically divided equally between spouses. However, if there was no benefit to the "community" or a breach of fiduciary duty involved, there is a potential argument that the debt or liability belongs to the spouse who incurred it. Such a result is usually for more extreme situations.

California Divorce Law and Attorney's Fees, Costs, and Other Legal Expenses

The California Family Code divides fees, costs, and expenses into two categories - those based on "need" and "ability to pay" versus those as a "sanction" (punishment) for bad conduct.

The Law on Need and Ability to Pay

Family Code 2030 through 2032 are the need and ability-based laws. When one spouse has greater financial resources than the other, the court may order the spouse with the resources to pay the other spouse's attorney's fees, costs, and legal expenses.

Such an order ensures both parties have equal access to legal representation and a fair opportunity to present their case.

The Law on Sanctionable Conduct

The most common award results from one spouse's conduct during the divorce litigation that is so unreasonable that it violates California's policy of amicably resolving the issues. California Family Code 271 is the most common code section used for this purpose, but there are others.

Examples may include:

1. Taking legal positions that are not consistent with the facts or the law.
2. Refusing to participate in good faith in settlement negotiations.
3. Refusing to provide complete disclosures and responses to reasonable requests for information.

What About the Source of Payment and its Timing

California's divorce law allows the court to order fees, costs, and legal expenses from the community or separate property. The court can even order assets sold or borrowed from to pay for these items in more extreme situations.

The law also allows the court to make these orders at any time during the divorce. There are also no limits to how often a spouse may ask for fees, costs, and expenses.