California Divorce Overview

In 1969, California Governor Ronald Reagan signed the country’s first no-fault divorce law. Before that time, judges could only grant divorces based on marital fault, such as adultery, abandonment, or cruelty. The new law legalized divorce based on “irreconcilable differences,” which basically means that the marriage has broken down but neither spouse was to blame. Over the next ten or fifteen years, most all other states passed their own no-fault laws, and the divorce rate rose exponentially during the 1970s and 1980s. In the 1990s, the divorce rate began leveling off. Although it has actually declined recently, the divorce rate is still much higher than it was in 1970.

Today, California is a pure no-fault state, because lawmakers have abolished all the evidence-based grounds, except for insanity. Divorce may be “easy” from this perspective, but there are still significant financial and emotional issues to work out before the marriage can truly be dissolved. If you find yourself overwhelmed with the process, speaking to a divorce lawyer may be your best bet.

Child Custody and Child Support

In addition to the nation’s first no-fault law, California is also home to the nation’s first joint custody law. Prior to 1979, child custody almost always went to the mother. Divorced fathers had only limited visitation with their kids and basically no hope to obtain custody, regardless of the facts in the case. The joint custody presumption involves both:

  • Physical Custody: Most timeshare arrangements are 2-2-3s (children spend Monday and Tuesday with Parent A, Wednesday and Thursday with Parent B, Friday, Saturday, and Sunday with parent A, and then the two parents switch). This arrangement works best when both parents live in the same area of town. If there is a greater distance (e.g. Mother lives in Los Angeles and Father lives in San Diego), alternating extended weekends (Thursday through Monday) usually work a little better.
  • Legal Custody: Technically, the two parents share decision-making, such as where the children will attend school. To deal with tie votes, some divorce decrees contain specific language, such as “the children shall be raised Catholic.”

The timeshare arrangement significantly impacts child support, a point that is discussed below.

While there is a strong presumption in favor of joint custody, such arrangements are not always in the children’s best interest, and that is the guiding principle in these matters. For example, infants and very young children usually need to be with their mothers. In these situations, judges normally order stairstep visitation that begins at a few hours and eventually becomes a 2-2-3 or extended weekend when the children are older.

Judges also use best interests to determine the custody award itself, i.e. which parent has “custody” and which one has “visitation.” There are several factors:

  • Health and Safety: There is a strong presumption that the current living arrangement is workable in terms of health and safety, unless there is a social services investigation, domestic abuse matter, or other serious issue.
  • Child’s Preference: Judges can interview children of any age to determine their preference. If the children are a little older, most judges appoint attorney ad litems to assist in this area.
  • Co-Parenting: The custodial parent must be willing to share access and responsibility with the other parent to the greatest extent possible, and also be willing to resolve everyday disputes.

The law presumes that children benefit from consistent contact with each of their parents.

Child Support

In terms of support, California is an income share state that uses both parents’ income to calculates a child support obligation, and then divides that obligation proportionally. The theory is that children should receive the same level of financial support from divorced parents as married ones. The California child support calculator takes into account:

  • Both parents’ incomes,
  • Number of children before the court,
  • Any stepchildren, and
  • Children’s expenses, such as daycare costs, health insurance premiums, and unreimbursed healthcare expenses.

The guideline amount is presumed to be a reasonable amount, and it can be modified later based on changed circumstances, such as a parent’s new job or a child’s decreased expenses.

Property Division and Spousal Support

California is a community property state, so all marital property is normally divided 50-50, regardless of the record owner. To rebut the community property presumption, challenging spouse must present clear and convincing evidence that the property was either acquired before the marriage or by gift.

This division is often very complex, because property is usually commingled, especially in longer marriages. For example, Wife may use a financial gift from her parents (separate property) to fund improvements on a jointly-owned rental house (community property). In this situation, Wife’s separate estate would probably be entitled to reimbursement; there may also be an issue as to whether the rental income is Wife’s separate property or community property, and the answer probably depends on the specific facts.

Alimony is part of a property division. Some states have significantly overhauled their spousal support laws in recent years to limit long-term alimony, give judges less discretion when setting the amount and duration of payments, or both. So, far California’s laws have remained essentially unchanged, and there are two types of spousal support that serve two different functions:

  • Temporary Alimony: As the name implies, temporary alimony gives obligee spouses the additional funds they need to pay interim living expenses, attorneys’ fees, rental deposits, and other divorce-related expenses.
  • Permanent Alimony: This kind of spousal support is very rarely “permanent,” but it is long-term support designed to equalize the standard of living between the ex-spouses and help the obligee spouse attain economic self-sufficiency.

In most cases, either spouse may modify payments based on materially changed circumstances, such as an involuntary income reduction or the obligee spouse’s subsequent remarriage.

About the Author: Hossein Berenji is the founder and attorney at Berenji & Associates, a Los Angeles, CA family law and divorce firm.

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