Although millions of people in California have gone through the divorce process at some point in their lives or had parents that went through it, if you haven’t yet experienced it yourself, there is probably a lot you do not understand about divorce in California. There are many misconceptions and much ignorance about divorce, and yet divorce is often the most impactful financial and emotional ordeal a person may ever go through. At the Law Office of Kelley C. Finan, our mission is to help individuals understand all aspects of divorce in California as it applies to their specific situations, and, while many previous articles posted here explore individual topics within California family law, here are few of the basics of divorce to keep in mind as you begin your journey.
California is a Community Property State
All income that you and your spouse earn during your marriage, and any property purchased with that income is considered community property. Courts do not look at who earned the income, or whether one spouse earned the majority of income. Instead, all income and property earned and acquired during the marriage is considered community property and will be split 50/50 in a divorce (unless a prenuptial or postnuptial agreement between the spouses says otherwise). Property that each spouse had before the marriage or inherited or was gifted individually, however, will be separate property and returned to that spouse upon divorce.
Spousal Support is Awarded Even When Both Spouses Work
While some states such as Texas disfavor spousal support (or alimony as it is often called) except in cases of hardship, California commonly awards spousal support in order to maintain both spouse’s standard of living during the marriage. Thus, even if one spouse earns a comfortable salary, that spouse may still be awarded spousal support if the other spouse earns significantly more. Furthermore, both men and women can be ordered to pay spousal support. Again, a valid prenuptial or postnuptial agreement can dictate how spousal support will be determined in a divorce.
You May Be Eligible for Temporary Spousal Support From the Outset
A final spousal support award will be made at the finalization of a divorce (unless the court decides not to award spousal support), but a spouse may seek temporary spousal support from the very beginning of the divorce proceedings. In awarding spousal support, the court will generally put both spouse’s monthly incomes into a county-wide formula to determine monthly spousal support obligations.
California Custody Law Does Not Prefer the Mother
One of the greatest misconceptions about California divorce law is that the court will prefer the mother over the father in awarding custody, but state law specifically prohibits family law judges from making a preference based on gender.
Custody is Determined on the Best Interests of the Child
Instead, courts will make custody determinations based on the best interests of the child. By state law, there are a number of factors that the court should consider in determining what custody arrangement will be in the best interests of the child, which include:
- The age of the child
- The relationship of the parents with other persons who may affect the child’s welfare (i.e. boyfriends, girlfriends, fiancees, roommates, etc.)
- The preference of the child
- The ability and willingness of each parent to provide for the child’s needs
- The stability of a proposed living arrangement and the stability of the child’s current living arrangement (including home life, school, church, community ties, extended family, etc.)
- The willingness and capacity of parents to foster ongoing involvement of other parent
- Any relevant history of domestic violence and abuse, drug abuse, alcohol, etc.
Courts will make determinations on both physical custody (where the child will live) and legal custody (which parent(s) will make important decisions on behalf of the child, such as educational and medical decisions. Both forms of custody may be awarded jointly to both parents (with a plan for timesharing) or solely to one parent.
For any questions on divorce law in California, contact the Law Office of Kelley C. Finan today to schedule a consultation to discuss your circumstances.