Family Law FAQ
1) Q: What’s the difference between a dissolution of marriage, a legal separation, and an annulment?
2. Q: What are the requirements for filing a petition for dissolution of marriage in California?
3. Q: How does misconduct by either spouse affect the final judgment of the court?
4. Q: How is child support and spousal support (alimony) calculated?
5. Q: Must a parent obtain sole physical custody in order to be awarded child support?
6. Q: California is a community property state. What does that mean?
7. Q: My spouse and I were married outside of California. Can I get a divorce here?
8. Q: Does California recognize a common law marriage?
9. Q: My spouse says he or she won’t grant me a divorce. What can I do?
10. Q: I want to be divorced immediately. How long do I have to wait before I am divorced?
1) Q: What’s the difference between a dissolution of marriage, a legal separation, and an annulment?
A: A dissolution of marriage or “dissolution of domestic partnership” ends your marriage or domestic partnership. Rather than referring to “divorce”, California law refers to “dissolution of marriage.” However, there is no fundamental difference between what is called “divorce” in another state and what is called “dissolution of marriage” in California. Both terms refer to the process by which a marriage (or domestic partnership) between parties is terminated and their respective legal rights and obligations regarding property, child custody, and child and spousal support are determined.
After a dissolution, you will be single, and you can marry or become a domestic partner again.
In a dissolution, you can seek orders like child support, spousal support, partner support, custody and visitation, domestic violence restraining orders, division of property, and other orders.
A legal separation does not end a marriage or domestic partnership. You can’t marry or enter into a partnership with someone else if you are legally separated (and not divorced). A legal separation is for couples that do not want to get divorced but want to live apart and decide on money, property, and parenting issues. Couples sometimes prefer separation for religious reasons.
In a legal separation case, you can seek orders like child support, spousal support, partner support, custody and visitation, domestic violence restraining orders, or any other orders you can get with a divorce case.
An annulment (or “nullity of marriage” or “nullity of domestic partnership”) is when a court says your marriage or domestic partnership is NOT legally valid. A marriage or domestic partnership that is incestuous or bigamous is never valid. Other marriages and partnerships can be declared “void” because:
of force, fraud, or physical or mental incapacity;
one of the spouses or partners was too young to legally marry or enter into a domestic partnership; or
one of the spouses or partners was already married or in a registered domestic partnership.
Annulments are very rare. If you ask to have your marriage or domestic partnership annulled, you will have to go to a court hearing with a judge.
2. Q: What are the requirements for filing a petition for dissolution of marriage in California?
A: In California, those wishing to seek dissolution of marriage must first meet the residency requirement. At least one of the parties must have lived in California for at least 6 months and in the county in which the action is filed for at least 3 months, in order to file a petition for dissolution of marriage.
3. Q: How does misconduct by either spouse affect the final judgment of the court?
A: Because California is considered a “no-fault” divorce state, misconduct by either spouse typically does not come into play. Specifically in the division of property, bad acts such as infidelity, etc., usually have little or no bearing on the outcome of the case
However, in some circumstances, certain actions of the parties are relevant. For example, under California law, when making a custody determination, the court must consider whether there is evidence of domestic violence. Also, a determination of whether one party will be awarded spousal support may hinge on the issue of a domestic violence conviction, or other bad acts. California law also provides that in making a property award, the court may consider misappropriation of an asset by one party to the detriment of the other.
4. Q: How is child support and spousal support (alimony) calculated?
A: Child support is calculated on a strict mathematical formula based upon percentage of custodial time, income of each parent, and other factors including any extraordinary needs of the children.
While the court may use a mathematical formula as a guideline for spousal support, the actual amount of spousal support depends on a number of factors that the court will weigh and assess. It can range anywhere from no award to a quite significant dollar amount.
5. Q: Must a parent obtain sole physical custody in order to be awarded child support?
A: No. A parent may share both legal and physical custody with the other parent, and, depending upon financial circumstances, may still receive child support based on state guidelines and the state mathematical formula.
6. Q: California is a community property state. What does that mean?
A: In a community property state, property is classified as either community property or separate property. Community property, but not separate property, will be divided equally in a dissolution of marriage. Community property generally includes income or assets acquired during the course of the marriage, while the parties are living together. Separate property generally includes property owned by a spouse prior to marriage and any gifted or inherited property received during the marriage which was treated as separate property. Admittedly, this is a bit of an oversimplification. However, it does provide the basic definition of community property.
7. Q: My spouse and I were married outside of California. Can I get a divorce here?
A: No matter where the marriage ceremony took place, you can file for a divorce in California as long as you have been a resident of this State for at least six months and of the county of filing for at least three months.
8. Q: Does California recognize a common law marriage?
A: In short, the answer is No. This is one of the most common legal misconceptions about marriage in California. If you are living together without a marriage license or ceremony, you are not considered legally married in California.
However, if you and your partner lived in another state that recognized a common law marriage and you met the requirements for marriage there, you would need to get a divorce under California law if you are a resident here now.
9. Q: My spouse says he or she won’t grant me a divorce. What can I do?
A: Since California is a “no-fault” state, a divorce proceeds with or without consent of the other spouse. While a spouse can make the process difficult or lengthy, eventually the court will intervene and enter judgment for dissolution.
If the responding spouse does not answer the Petition for dissolution, your Attorney can move for default, and you will be divorced in as little as six months
10. Q: I want to be divorced immediately. How long do I have to wait before I am divorced?
A: In California, there is a six-month waiting period before a divorce can be finalized. The six months starts from the date the Petition is served. It is the goal of the State of California that the six months be a cooling off period, so that couples do not rush to divorce. Even if parties reach an agreement and all formalities are completed soon after the Petition is filed and served, the date of dissolution will be entered at least six months out.
