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Divorce laws are written and enforced by the state in which the partners reside. This means your state and local family law court determine such things as divorce case filing and pleading procedures, spousal and child support payments, custodial rights of parents and the division of community property. Described information comes from government publications and resources. Make sure to consult a lawyer in your state for the most current law and procedures.

LEGAL GROUNDS FOR DIVORCE:

Dissolution of the marriage or legal separation may be based on either of the following grounds: (a) Irreconcilable differences, which have caused the irremediable breakdown of the marriage; or (b) Incurable insanity (only upon proof). [Based on California Family Code - Sections: 2310]

RESIDENCY REQUIREMENTS AND WHERE TO FILE: To file for a dissolution of marriage (divorce), one party must be a resident of California for six months, and a resident of the county in which the proceeding is filed for three months, before filing the petition. The superior court has jurisdiction in proceedings under this code. [Based on California Family Code - Sections: 200, 2320]

LEGAL SEPARATION: The grounds for a legal separation are the same as the grounds for a divorce, and the same residency requirements must be met. After entry of a judgment of legal separation of the parties, the earnings or accumulations of each party are the separate property of the party acquiring the earnings or accumulations. [Based on California Family Code - Sections: 2310, 2320, 772]

MEDIATION OR COUNSELING REQUIREMENTS: When issues are being contested, and there is a minor child of the spouses or parents or of either of them whose welfare might be affected thereby, the family conciliation court has jurisdiction as provided in this part over the controversy and over the parties to the controversy and over all persons having any relation to the controversy. [Based on California Family Code - Sections: 1830]

PROPERTY DIVISION: California is a community property state. Except as otherwise provided by statute, all property (wherever situated) acquired during the marriage while domiciled in this state is community property. Except upon the written agreement of the parties, or on oral stipulation of the parties in open court, or as otherwise provided in this division, the court shall divide the community estate of the parties equally. Separate property is not included in the division of the community estate.

Separate property of a married person includes all of the following: (1) All property owned by the person before marriage. (2) All property acquired by the person after marriage by gift, bequest, devise, or descent. (3) The rents, issues, and profits of the property described in this section. (b) A married person may, without the consent of the person's spouse, convey the person's separate property. After entry of a judgment of legal separation of the parties, the earnings or accumulations of each party are the separate property of the party acquiring the earnings or accumulations. [Based on California Family Code - Sections: 760, 770, 772, 2550]

SPOUSAL SUPPORT: The court shall consider all of the following circumstances where determining spousal support: (a) The ability to maintain the standard of living established during the marriage, taking into account all of the following: (1) The ability of the spouse seeking support to gain self-supporting employment (2) The extent to which that spouse's present or future earning capacity was impaired by periods of unemployment during the marriage to permit the supported party to devote time to domestic duties. (b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party. (c) The ability of the supporting party to pay spousal support. (d) The needs of each party based on the standard of living established during the marriage. (e) The obligations and assets, including the separate property, of each party. (f) The duration of the marriage. (g) The ability of the supported party to be gainfully employed without unduly interfering with the interests of dependent children in the custody of the party. (h) The age and health of the parties. (i) Documented evidence of any history of domestic violence between the parties. (j) The immediate and specific tax consequences to each party. (k) The balance of the hardships to each party. (l) The goal that the supported party shall be self-supporting within a reasonable period of time. (m) Any other factors the court determines are just and equitable. [Based on California Family Code - Sections: 4320]

SPOUSE'S NAME: In a proceeding for dissolution of marriage or for an annulment, but not in a proceeding for legal separation of the parties, the court, upon the request of a party, shall restore the birth name or former name of that party, regardless of whether or not a request for restoration of the name was included in the petition. [Based on California Family Code - Sections: 2080]

CHILD CUSTODY: Either parent may be awarded custody. There is neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, allowing the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child. In making a determination of the best interest of the child when deciding custody, the court shall consider all of the following:

* The health, safety, and welfare of the child.

* Any history of abuse by one parent or any other person seeking custody against any of the following: (1) Any child to whom he or she is related by blood or affinity or with whom he or she has had a care-taking relationship, no matter how temporary. (2) The other parent. (3) A parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship.

* The nature and amount of contact with both parents, except as provided in Section 3046.

* The habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol by either parent. The provisions of this subdivision shall not apply if the parties stipulate in writing or on the record regarding custody or visitation.

* Any other factors the court finds relevant.

[Based on California Family Code - Sections: 3010, 3011, 3040]

CHILD SUPPORT: Both parents of a minor child have an equal responsibility to support their child in the manner suitable to the child's circumstances. The duty of support continues until the time the child completes the 12th grade or attains the age of 19 years, whichever occurs first. Both parents have an equal responsibility to maintain, to the extent of their ability, a child of whatever age who is incapacitated from earning a living and without sufficient means.

The court shall adhere to the statewide uniform guideline and may depart from the guideline only in the special circumstances set forth in this article. [Based on California Family Code - Sections: 3900, 3901,3910, 4052] » Return to top

PREMARITAL AGREEMENT: To be valid, a premarital agreement shall be in writing and signed by both parties. It is enforceable without consideration. Parties to a premarital agreement may contract with respect to all of the following: (1) The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located. (2) The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property. (3) The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event. (4) The making of a will, trust, or other arrangement to carry out the provisions of the agreement. (5) The ownership rights in and disposition of the death benefit from a life insurance policy. (6) The choice of law governing the construction of the agreement. (7) Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

The right of a child to support may not be adversely affected by a premarital agreement. Any provision regarding spousal support, including but not limited to, a waiver of it, is not enforceable if the party against whom enforcement of the spousal support provision is sought was not represented by independent counsel at the time the agreement was signed, or if the provision regarding spousal support is unconscionable at the time of enforcement. [Based on California Family Code - Sections: 1611, 1612]

HOW TO ENFORCE CHILD SUPPORT IN THE STATE OF CALIFORNIA – THE FEDERAL OPTION

Federal Options Enforcement (CSE) Program is a federal/state/local effort to locate parents, their employers, and/or their assets; establish paternity if necessary; and establish and enforce child support orders. The federal role is to provide funding, issue policies, ensure that federal requirements are met, and interact with other federal agencies that help support the CSE program.

How and where do I apply?

In most states, CSE offices are listed under the human services agency in the local government section of the telephone directory. If there is not a separate listing, the human services agency information operator should be able to give you the number. State CSE agencies are listed at the end of this brochure; they also can provide telephone numbers for local offices.

Call your Child Support Enforcement office to learn how to apply for enforcement services and what documents (birth certificates, financial statements, etc.) you should provide.

What are the steps to collecting support?

The first step, if a child was born out of wedlock, is to establish paternity - or make a legal determination of who fathered the child. Many men will voluntarily acknowledge paternity. Either parent can request a blood test in contested paternity cases. Your caseworker will help you to establish paternity for your child.

Establishing the obligation is the next step. The fair amount of child support that the non-custodial parent should pay is determined according to state guidelines. Your CSE office will be able to tell you how support award amounts are set in your state. Your CSE office can also request medical support for your child.

The last step is enforcement of the child support order. The CSE office can help with collecting the money due no matter where the non-custodial parent lives.

At any of these steps, the CSE office may need to know where the non-custodial parent is living or where he/she is working. When a parent has disappeared, it is usually possible for the CSE office to find him/her with the help of state agencies, such as the Department of Motor Vehicles, or the Federal Parent Locator Service. Your caseworker can tell you what information is needed to find an absent parent or his/her employer.

The most successful way to collect child support is by direct withholding from the obligated parent's paycheck. Most child support orders require the employer to withhold the money that is ordered for child support and send it to the CSE office. Your Child Support Enforcement office can tell you about this procedure.

Federal and State Income Tax refunds may be withheld to collect unpaid child support. States also have laws, which allow them to use: liens on real and personal property; orders to withhold and deliver property; or seizure and sale of property with the proceeds applied to the support debt. Many states routinely report child support debts to credit bureaus and smart parents are bringing their payments current so that their credit won't be affected.

For More Information write for the Handbook on Child Support Enforcement by contacting:

ACF OCSE National Reference Center

370 L'Enfant Promenade, S.W.

4th Floor Washington, DC 20447

(202) 401-9383

CURRENT CALIFORNIA CODE:

http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=fam&codebody=&hits=20