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.

Child Support in California

Child support is a court-ordered payment by one parent to the custodial parent of a minor child, generally after divorce or separation. In California, the Court can impose support until the age of 19 or until the child finishes 12th grade, whichever occurs first.

Generally, the amount of child support is based on such factors as the combined income of both parents, the number of children, the expenses of the custodial parent, and any special needs of the child. The amount of child support in California is determined based on a statewide uniform guideline, which can only be departed from in limited special circumstances (see section 4052 of the CA Family Code).

A link to the California State Government site, with a helpful child support calculator is available here.

The guidelines are described in section 4055 of the CA Family Code as follows:

(a) The statewide uniform guideline for determining child support orders is as follows: CS = K (HN - (H%) (TN)).

(b) (1) The components of the formula are as follows:

(A) CS = child support amount.

(B) K = amount of both parents' income to be allocated for child support as set forth in paragraph (3).

(C) HN = high earner's net monthly disposable income.

(D) H% = approximate percentage of time that the high earner has or will have primary physical responsibility for the children compared to the other parent. In cases in which parents have different time-sharing arrangements for different children, H% equals the average of the approximate percentages of time the high earner parent spends with each child.

(E) TN = total net monthly disposable income of both parties.

     (2) To compute net disposable income, see Section 4059.

     (3) K (amount of both parents' income allocated for child support) equals one plus H%
     (if H% is less than or equal to 50 percent)
     or two minus H% (if H% is greater than 50 percent) times the following fraction:

Total Net   Disposable   Income Per Month	K
$0-800	0.20 + TN/16,000
$801-6,666	0.25
$6,667-10,000	0.10 + 1,000/TN
Over $10,000	0.12 + 800/TN

     For example, if H% equals 20 percent and the total monthly net disposable income
     of the parents is $1,000, K = (1 + 0.20) X 0.25, or 0.30. If H% equals 80 percent and
     the total monthly net disposable income of the parents is $1,000, K = (2 - 0.80) X 0.25,
     or 0.30.

     (4) For more than one child, multiply CS by:

2 children	1.6
3 children	2
4 children	2.3
5 children	2.5
6 children	2.625
7 children	2.75
8 children	2.813
9 children	2.844
10 children	2.86

     (5) If the amount calculated under the formula results in a positive number,
     the higher earner shall pay that amount to the lower earner.
     If the amount calculated under the formula results in a negative number,
     the lower earner shall pay the absolute value of that amount to the higher earner.

A link to the California State Government site, with a helpful child support calculator calculator is found here.(Have your tax returns handy!)

As you can see, the calculation is complicated. As such, it’s always best to consult a qualified California attorney when dealing with issues related to divorce or child support.

Child Custody in California

There are two types of custody in California: legal custody and physical custody (also known as residential custody). Legal custody is the right and responsibility to make decisions for a minor child. This can take the form of either joint custody or sole custody. Physical custody (or residential custody) refers to where a child lives. Physical custody also can take the form of either joint custody or sole custody. California, by statute, expresses no preference for any particular arrangement (see section 3040 of the California Family Code).

Section 3040(b) of the California Family Code provides:

In California, custody determinations are made according to “the best interest of the child.” This is an important standard under California law. (see section 3011 of the California Family Code).

Sometimes parents will be able to come to an agreement themselves about how to share custody. If they cannot, a court may adjudicate custody. When considering “the best interest of the child” for purposes of custody, California courts consider several factors. These include:

• • The health, safety, and welfare of the child;
• • Any history of abuse to any child, other parent, or cohabitant;
• • Amount of contact with both parents;
• • Abuse of drugs or alcohol.

Child Visitation in California

The laws of California governing visitation are generally contained in the California Family Code, at sections 3100 to 3105 (a link here). To fully understand the law regarding visitation, it may also be necessary to read these sections with other California family law statutes and case law. It is always best to consult with a qualified family law attorney to know how the law applies to your particular situation.

Courts in California place importance on frequent and continuing contact with both parents and will generally grant reasonable visitation rights to a parent unless it is shown that the visitation would be detrimental to the best interests of the child. Courts generally have broad discretion in determining “reasonable” visitation rights. It is important to remember that a court’s most important priority in any case involving visitation or child custody is to serve the “best interests of the child.” This is a very important standard under California law and it will generally guide a court in making a decision about visitation.

Courts look at several other factors in making a decision about visitation. These include the child’s age and maturity, how close a parent lives to the child’s primary residence and the child’s preference (if the court deems it appropriate).

In general, if a protective order (that is, a restraining order or a protection-from-abuse order) has been issued, courts will consider whether the best interest of the child requires that some or all visitation be supervised by a third person or whether visitation should be suspended or denied entirely. In such a case, courts would consider the nature of the acts that were the cause of the protection order and the amount of time that has elapsed since the protection order was issued. See California Family Code Section 3100 for more information about the law regarding visitation in cases of abuse or where a protection order has been issued.

Grandparent Visitation

Under California law, a court may, in limited situations, grant reasonable visitation rights to people other than a parent who have an interest in the welfare of the child. If a parent does not wish for a grandparent to have visitation rights, then a court must generally give special weight to the parent’s wishes and presume that the parent is acting in the best interests of the child. The issue of grandparent visitation is somewhat complicated because of a recent United States Supreme Court decision, Troxel v. Granville, which concerned grandparents’ custody and visitation rights. It is always best to consult a qualified family law attorney in cases involving custody and visitation rights.