Divorce Law

Many people who contact us ask “What are the exact steps to get divorced?” Likewise, people ask specifics about the law. Here is a very brief guide to answer some of those questions. We also include a few links to great resources of information and law.

1. Divorce and legal separation in California are all dictated by the family law code. A great public online resource can be found at www.leginfo.legislature.ca.gov Then click on California law, then family code. Virtually every step and every possible issue can be found in the family code.
2. California further has a great self-help website for everyone to see the laws and steps related to divorce. See the website www.selfhelp.courts.ca.gov.  Once on the site, you can click through to family law and get step-by-step information.
3. Each county has its own local rules and specific procedures. Our practice has frequently filed cases in, of course, Santa Cruz, but also Santa Clara County, Monterey County, and San Francisco. The local rules to each are extremely important to follow. The Santa Cruz local rules can be found online at www.santacruz.courts.ca.gov.
4. There are of course many nuances, and twists and turns to interpreting the family law code, especially regarding divorces in California.  It would be impossible on one page here, to summarize the nuts and bolts of family law simply because there are so many complexities. However, there are a few fundamental principles worth mentioning to anyone reading this page.  These are bright-line rules, that come up in almost every single divorce or legal separation:

• • Everything earned by either party between the date of marriage, and the date of separation is considered community property and owned 50-50 by each party.  In other words, if one spouse worked hard during the marriage, earning money, then that money is all community property.  Likewise, all debt accrued during marriage is equal community debt, although there are a number of exceptions.
  • California has no common law marriage law. If a couple is together for 30 years and has three kids together and told all their friends and family that they are married, they are still not considered married under the law. Neither party can get spousal support. Neither party can get Social Security rates based on the other party’s income. No other marital rights attach. The law is harsh in that way, and there is a prevailing myth that California has common-law marriage, but that is not true.
  • All retirement earned between the date of marriage, and the date of separation is community property, and both parties are 50-50 owners of any such retirement accounts.  If one party earned a pension, that is going to pay, say, $5000.00 per month for life, then that is 50-50 money to be split, even if the other party never worked at all.
  • Affairs don’t matter to the courts, except in very rare circumstances. The role of the court’s and of us as mediators is to divide the property and make other important decisions, such as child, custody, or support issues. We do not go into things like affairs, or who’s at fault for the breakdown of the marriage.
  • Anything owned before the date of marriage, normally remains the sole and separate property of the person who owned it.
  • Any inheritances or gifts are the sole and separate property of the spouse who received them.
  •  Prenuptial agreements are sometimes valid, and sometimes not. There is a long list of complicated legal principles and laws that must be discussed and analyzed.
  • If one party put their own separate money into a down payment on a community property house, that party gets that down payment back. For example, if the wife put $50,000 from her personal savings account (from before marriage) into the down payment of a house that the parties purchased during marriage, then later in divorce she is entitled to get that $50,000 back from the house before the money is otherwise divided. There are, of course, numerous other complexities to dealing with real estate and houses.
  • As a very general and loose rule, the higher-income spouse pays support to the other spouse. This is called spousal support and used to be called alimony. In short-term marriages, support is paid roughly half the length of the marriage. In long-term marriages of over 10 years, support is usually at least half the length of the marriage. There is a long list of factors enumerated in the family code to determine spousal support. In mediation, we have a number of techniques to use those factors and also assess the overall needs of the parties and ability to pay, in order to ultimately arrive at a fair and workable spousal support number. In mediation, we have lots of options to work with.