Summary of California Separation, Divorce
and Alimony Law

Separation and Divorce in California

Legal Separation

A legal separation does not end a marriage or domestic partnership in California. A legally separated (and not divorced) person also cannot enter into a marriage or a domestic partnership with another person. A legal separation does allow a couple to petition a court for orders regarding economic issues (splitting up money and property), child custody, visitation, child support, spousal/partner support (alimony), and other orders a court would normally issue in a divorce. California law generally does not require either party to meet California’s residency requirements in order to file a legal separation. Residency requirements would still be required to be met for a California divorce; however, it is possible to later file an amended petition to ask a California court for a divorce after residency requirements can be met.

Initial considerations for Divorce

To file for divorce in California, at least one party must be a resident of the state for 6 months and either party a resident of the county in which the action is brought for 3 months. The action needs to be filed in Superior Court in the specific county in which one of the parties has been a resident for three months. The Superior Court has jurisdiction over all the issues of the divorce including division of property and child custody.

Grounds for Divorce

“Grounds for divorce” are the legal reasons for a divorce. California recognizes two grounds for divorce: “irreconcilable differences” and “incurable insanity.” Not surprisingly, “irreconcilable differences” is the much more common reason given. California is considered a "no-fault" state for divorce. “Irreconcilable differences” are defined as "those grounds which are determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved.”

Division of Property

In California, the rules for the distribution of property are straightforward. Property is divided into two types: separate property and community property. Separate property is generally awarded to the spouse who originally owned it. Community property is generally split equally the spouses (subject to some exceptions). The trick is to figure out what property is separate property and what property is community property.

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.
•     (see the California Family Code at section 770)

Alimony in California

Alimony (also referred to as maintenance or spousal support) is the court-ordered financial support of one spouse by the other spouse as part of a legal separation or a divorce.

The laws of California governing alimony are contained in the California Family Code (a link here). Generally, they are found in Sections 4300 to 4360 of the Family Code. Additional information about spousal support during the pendency of a proceeding for divorce or legal separation can be found in Sections 3600 to 3604 of the Family Code. It is a good idea to read the statutes carefully and to consult an attorney to determine the laws’ application in your particular situation.

Factors Affecting the Amount and Duration of Alimony in California

In California, alimony is not mandatory in a divorce or legal separation. A court may decide not to grant alimony or to limit the amount and duration of alimony depending on the ability of both parties to provide for their own needs.

In determining whether to grant alimony, as well as the amount and duration of the alimony, a court looks at a variety of factors. These factors are explained in California Family Code Sections 4320 to 4326. Among others, the factors include:

• • The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage
• • The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.
• • The ability of the supporting party to pay spousal support, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living.
• • The needs of each party based on the standard of living established during the marriage.
• • The obligations and assets, including the separate property, of each party.
• • The duration of the marriage.
• • The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
• • The age and health of the parties.
• • Documented evidence of any history of domestic violence between the parties, including consideration of emotional distress resulting from domestic violence.
• • The balance of the hardships to each party.
• • The goal that the supported party shall be self-supporting within a reasonable period of time (see the statute itself for more information about the law’s definition of a “reasonable period of time”
• • Any other factors the court determines are just and equitable.

As you can see, the law is complex. This explanation is intended only as a basic overview. It is always best to read the actual statutes carefully (linked above) and to consult an attorney to determine the law in your particular situation.

Modifying or Terminating Orders for Spousal Support in California

A court may increase or decrease the amount of money paid as alimony if either spouse requests it from a court. It is generally required that a court determine that “changed circumstances” of the parties warrants such a modification.

When do Alimony Payments End?

Unless the parties have “otherwise agreed” in writing, alimony will end upon death of either spouse or remarriage of the spouse receiving the alimony.

If alimony has been awarded only for a fixed period of time, then it will generally end at the time specified in the court order. In certain circumstances, however, a court may retain jurisdiction to extend the obligation.

If alimony has been awarded for a “contingent period of time,” then it will generally end on the happening of that contingency.

Tax Consequences of Alimony

It is important to understand that there may be tax implications for individuals who pay or receive alimony. According to Section 71 of the Internal Revenue Code, alimony must be included in the recipient’s gross income and can be excluded from the payer’s gross income.

However, it is critical that payments actually qualify as alimony under the law. To qualify as alimony (also according to Section 71 of the Internal Revenue Code), payments must generally meet five conditions:

• (1) The payment is be a cash payment (such as a check or money order)
• (2) The payment is received by (or on behalf of) a spouse under a “divorce or separation instrument”
• (3) The divorce or separation instrument does not designate the payment as a payment which is not includible in gross cross income as alimony and not allowable as a deduction for the payee spouse (under Section 215 of the Internal Revenue Code).
• (4) The payer and payee are not members of the same household at the time payments are made
• (5) There is no liability to make payments after the death of the recipient spouse

Sometimes it is difficult to determine whether a payment qualifies under the law as alimony. Therefore, it is best to consult with an attorney or qualified tax professional.

There also may be state and local tax implications for individuals who pay or receive alimony. The State of California has some helpful information at this link on the tax implications of alimony.