If you are planning to get divorced in California, but know nothing about it — there are a few key facts you will want to consider at the outset. To begin the proceedings, you must meet the mandatory minimum residency requirement. At least one spouse must reside in the state for six or more months and the particular county for three or more months before you can file for divorce. If you qualify and plan to proceed, there are three unique facts about a California divorce that you will want to know.
Community Property State
California, along with a handful of other Western states, is a Community Property state. This means your marital property is shared on an equal basis, rather than divided in an “equitable” way. Regardless of which spouse earned the money (yes, earnings are marital property, too!), the property will be split 50/50 if no exceptions or carve-outs apply.
This clearcut guideline brings a lot of comfort to the non-earning or lesser-earning spouse. What about the “saving” spouse and the “spendthrift” spouse? Debts, right alongside assets, which are acquired during the marriage also belong to both of you equally — regardless of who incurred them or whose name they are in. If one of you spent earnings on lifestyle and the other pooled resources in a 401K, an equal division is a hard pill to swallow. Yet, the benefits and the responsibilities are shared, as equal management and control of assets is assumed during the marriage.
There are exceptions to nearly every rule, but generally speaking, you can expect to divide most assets in half or trade-off assets (or debts) of equal value with your spouse. Assets that were obtained before you married or after the separation date are considered separate property, and as such will not be divided.
California is the oldest “no-fault” state when it comes to grounds for divorce, marking its 50 year anniversary this year. Yes, since the 1970s, you have not had to provide the court with a specific reason why you are filing for divorce (beyond “irreconcilable differences”) and you do not need “proof” of wrongdoing to qualify for a divorce, like in some other states. If you can assure the Court that there is no chance of reconciliation, after a six-month mandatory “cooling off” period, you can terminate marital status and return to that of a single person. The no-fault divorce concept applies even if one person wants the divorce and the other one does not. No mutual agreement is required.
California law does not provide for a Common-Law marriage, like several other states and countries, such as parts of Canada. Common-Law marriages are marriages by appearance and are typically based on the duration of the relationship or cohabitation period. In places that honor Common-Law marriages, the thought is to treat cohabitants as spouses for all intents and purposes so that rights can accrue to benefit both people in an equitable way. In contrast, California requires a ceremonial marriage with a license to prevent what could become an accidental or unwitting marital union and the corresponding rights of property division and spousal support. Because California does not recognize common-law marriages, couples who have been living together for a lengthy period can separate without legal divorce.
Consult with a good family law attorney before proceeding with your divorce and make sure you are well represented to confirm the process will go as smoothly as possible.