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Legal Information: California

California Divorce

Laws current as of
April 4, 2019

This section has basic information about divorce in California. You will find more information about divorce, including the risks of taking your children out of state while a divorce is pending, on our general Divorce page. To watch brief videos about divorce in Spanish with English sub-titles, go to our Videos page. Lastly, learn more about the court process on our Preparing for Court – By Yourself page.

What are the residency requirements to file for divorce in California?

You or your spouse must have been a resident in the state of California for at least six months and a resident in the county where the divorce is going to be filed for at least three months prior to filing for divorce, except in the case of same-sex marriages.1

Spouses of the same sex can get a judgment for divorce, nullity, or legal separation even if neither spouse is a resident of California at the time the proceedings if:

  • the marriage was entered in California; and
  • neither spouse lives in a state that will dissolve the marriage (Note: If the state does not recognize the marriage, it is assumed that the state will not dissolve it).

In this case, the same-sex spouse would file in the superior court in the county where the marriage was entered.1

1 Ann.Cal.Fam.Code § 2320

What are the grounds for divorce or legal separation in California?

You can file for divorce or for legal separation in California based on either of the following grounds (reasons):

  1. Irreconcilable differences, which have caused the permanent breakdown of the marriage; or
  2. Permanent legal incapacity to make decisions.1 For this ground, there needs to be proof (competent medical or psychiatric testimony) that the spouse was at the time the petition was filed, and still is, lacking the legal capacity to make decisions.2

1 Ann.Cal.Fam.Code. § 2310
2 Ann.Cal.Fam.Code. § 2312

Can I get spousal support? What factors will a judge consider?

Spousal support, also known as alimony, is financial support paid by, or to, your spouse. The goal of alimony in California is to allow the party who gets alimony to be self-supporting within a 'reasonable period" of time. For marriages that lasted less than ten years, a “reasonable period” is considered to be half of the length of the marriage.1 However, the judge is not limited by this and may order support for a shorter or longer period of time.2

The judge will consider certain factors to determine a fair alimony award. These factors include, but are not limited to:

  • the extent to which the earning capacity of you and your spouse is sufficient to maintain the standard of living that was established during the marriage, while considering:
    • the marketable skills you might have;
    • the job market for those skills;
    • the time and cost required for you to get the necessary education or training to develop those skills;
    • the possible need for retraining or education to get more marketable skills; and
    • how much your present or future earning capacity may have been restricted based on periods of unemployment during the marriage for the purpose of you taking care of household duties;
  • the amount that you contributed to your spouse getting an education, training, career position, or a license;
  • the ability of your spouse to pay alimony, considering his/her earning capacity, earned and unearned income, assets, and standard of living;
  • the needs of you and your spouse based upon the standard of living established during the marriage;
  • the obligations and assets of you and your spouse, including non-marital property;
  • the length of the marriage;
  • your ability to work without interfering with the interests of the children in your custody;
  • the age and health of you and your spouse;
  • the immediate and specific tax consequences to you and your spouse;
  • hardships facing you and your spouse;
  • all documented evidence of any history of domestic violence (as defined by law) between the parties or committed by either party against either party's child. The type of documented evidence the judge will consider includes (but is not limited to):
    • a plea of "nolo contendere;"
    • the emotional distress resulting from the violence committed against you (the person receiving alimony) by your spouse;
    • any history of violence that you (the person receiving alimony) may have committed against your spouse (the person paying alimony);
    • if a protective order was after a hearing under this section of the law;
    • a determination (finding) made by a judge in a divorce, separation, child custody proceeding, or domestic violence restraining order proceeding that a spouse committed domestic violence; and
  • any other factors that the judge determines are fair and just.3

Note: If the person requesting alimony has been criminally convicted of misdemeanor domestic violence, felony domestic violence, or a violent sexual felony against his/her spouse within a certain timeframe, this will affect whether or not the judge awards him/her spousal support.4 For more information, see If my spouse was convicted of abusing me, can I be ordered to pay him/her spousal support? What if I was wrongfully convicted of abusing my spouse but I am the real victim?

1 Cal. Fam. Code §§ 4320(l); 4336(b)
2 Cal. Fam. Code § 4320(l)
3 Cal. Fam. Code § 4320(a)-(k),(n)
4 Cal. Fam. Code §§ 4320(m); 4324.5(a)(1); 4325

If my spouse was convicted of abusing me, can I be ordered to pay him/her spousal support? What if I was wrongfully convicted of abusing my spouse but I am the real victim?

The law regarding whether or not you can be ordered to pay spousal support to an abusive spouse is slightly different based on whether the conviction was a misdemeanor or a felony.

For misdemeanor convictions

If your spouse was convicted of a misdemeanor act of domestic violence against you within the five years before you filed for divorce or at any time while the divorce is pending, there is a "rebuttable presumption" against you paying spousal support and his/her attorney's fees. What this means is that the judge is supposed to assume that you should not be ordered to:

  • pay him/her temporary or permanent spousal support; and
  • pay his/her attorney's fees from your separate property (although payment can come from the community assets).1

However, the convicted spouse can present evidence to convince the judge to change his/her mind.1

Note: If you were the real victim of abuse but you were convicted of domestic violence against your abusive spouse, the judge can consider any documented evidence of your history as a victim of domestic violence. With that proof, the judge can decide to not follow these guidelines and can still order your abusive spouse to pay you spousal support.2

For purposes of this law, a domestic violence misdemeanor is when a spouse commits a misdemeanor act of "abuse" (as defined by law).3

For felony convictions

If your spouse was convicted of a violent sexual felony or a domestic violence felony against you and you file for a divorce within five years of the conviction and of any time in prison, on probation, or on parole, you cannot be ordered to pay spousal support. Also, you cannot be required to pay any attorney's fees of the convicted spouse out of your separate property (but the fees can be paid from the community assets).4

For purposes of this law, a domestic violence felony is when a spouse commits a felony act of "abuse" (as defined by law).5

For purposes of this law, the following crimes are considered violent sexual felonies:

  • rape (as defined in paragraph (2) or (6) of subdivision (a) of Section 261 or paragraph (1) or (4) of subdivision (a) of Section 262);
  • sodomy as defined in subdivision (c) or (d) of Section 286;
  • oral copulation as defined in subdivision (c) or (d) of Section 288a;
  • sexual penetration as defined in subdivision (a) or (j) of Section 289; or
  • rape, spousal rape, or sexual penetration, in concert, in violation of Section 264.1.5

    If your spouse was convicted of attempted murder or solicitation of murder against you, the judge is not only prohibited from ordering you to pay any temporary or permanent spousal support, but you also the abuser is prohibited from getting any medical, life, or other insurance benefits or payments from you.6

    Note: If you were the real victim of abuse but you were convicted of of felony domestic violence or a violent sexual felony against your abusive spouse, the judge can consider any documented evidence that your abusive spouse committed domestic violence (as defined by the law) or one of the above-listed violent sexual offenses against you. With that proof, the judge can decide to not follow these guidelines and can still order your abusive spouse to pay you spousal support.7

    1 Cal.Fam.Code § 4325(a)(1), (a)(2)
    2 Cal.Fam.Code § 4325(b)
    3 Cal.Fam.Code § 4325(e)(1)
    4 Cal.Fam.Code § 4324.5(a)
    5 Cal.Fam.Code § 4324.5(b); Cal.Penal.Code § 667.5(c)(3),(4),(5),(11),(18)
    6 Cal.Fam.Code § 4324
    7 Cal.Fam.Code § 4324.5(c)

    What are the basic steps for filing for divorce?

    While divorce laws vary by state, here are the basic steps:

    • First, you must meet the residency requirements of the state in which you wish to file.
    • Second, you must have “grounds” (a legally acceptable reason) to end your marriage.
    • Third, you must file divorce papers and have copies sent to your spouse.
    • Fourth, if your spouse disagrees with anything in the divorce papers, he will then have the opportunity to file papers telling his side. This is called “contesting the divorce.” In this case, you will have to attend a series of court appearances to sort the issues out. If your spouse does not disagree with anything, he should sign the papers and send them back to you and/or the court. This is called an “uncontested divorce.” If a certain period of time passes and your spouse does not sign the papers or file any papers of his/her own, you may be able to proceed with the divorce as an uncontested divorce anyway. You should speak to a lawyer in your state about how long you have to wait to see if your spouse answers the divorce papers before you can continue with the divorce.
    • Fifth, if there is property that you need divided, or if you need financial support from your spouse, you will have to work that out in an out-of-court settlement, or in a series of court hearings. Custody may also be decided as part of your divorce.

    Where can I find additional information about divorce?

    We hope the following links to outside sources may provide helpful information.

    The California Courts website provides the following resources concerning divorce:

    • information about summary dissolution;
    • facts about annulment;
    • information about spousal/partner support; and
    • links to court forms that you may need if you wish to get a divorce in California.

    WomensLaw.org is unrelated to the above organizations and cannot vouch for the accuracy of their sites. We provide these links for your information only.