How Does Divorce Work in California? 
Updated: Jan 21
Maybe things aren’t going great in your relationship, maybe your partner has mentioned it, or maybe you’re just curious. We’re going to take a look at the basics of divorce in California, and specifically in San Diego, in 2020.
First off, divorce in Southern California is complex, and you are almost certainly going to need a lawyer. That being said, the more educated you are about how the process works, the less you are going to have to spend on that lawyer. When someone shows up at my office who is knowledgeable and has done some research on the upcoming steps, we end up charging less money, period.
Step 1: What are we asking for? In California we have three different ways to “end” our marital relationship. Dissolution, which is the California word for divorce. Legal separation, also known sometimes as “trial separation.” And nullity.
Nullity is pretty rare and its an attempt to prove that the underlying marriage was never valid. This happens sometimes because of underage marriages, and in sitcoms, because the characters were drunk. We’re not going to spend any time on nullity today.
We know what divorce is, so what is legal separation?
Well basically we are going to go through all the steps of a divorce, without pulling that final trigger. There will be the same discussions (arguments?) about separation of assets, monthly support, and child custody. When the legal separation is officially granted it will end the community property relationship of the couple. For all intents and purposes, they are independent, BUT, they remain technically married. Sometimes people do this to try it out without taking a relatively irreversible step of getting divorce, and sometimes people choose this method for religious reasons, where a true divorce might not be culturally accepted.
Which leaves us with divorce, of which of course, we have subtypes: contested, uncontested, and true default.
Let’s step back for just a second and talk about what marriage actually is. A marriage is not as much a contract between two people as it is a contract between a couple and the government. Think about it. Two people can just live together and share money and raise a kid without ever getting marriage involved. The only thing that a marriage really does, is invite the government to regulate the terms of your relationship. Romantic.
So because the government is a major party to this contract, they want to have a say about how and when it ends. Here in California luckily courts do no-fault divorce. Basically all divorcing couples just check the little box for “irreconcilable differences” and we move on. The court does however, want to approve your financial and custody plan.
Thus, all three situations are going to require a judge to review and sign off for approval.
A true default means that one of the spouses literally never responded to the divorce petition. Maybe they moved away, or don’t want to be bothered, or think that by not responding they will someone save the marriage. This happens more often than you’d think. True defaults are relatively easy. One side gets to write up a proposal of how the property and custody division should go and present it to the judge. If the judge thinks it’s reasonable, it’s approved and we’re done.
Uncontested divorce is fairly self-explanatory. This means that both spouses were able to come to an agreement on property and custody division that they can live with. This often happens under the guidance of a mediator, and sometimes takes place before lawyers get involved at all. If you and your spouse can find a way to agree on things amicably and file an uncontested divorce, you will both probably save a lot of money.
And finally Contested Divorce means that the two parties cannot agree on a division of assets, custody and/or spousal support. While there are formulas, guidelines, and case history to help spouses and their attorneys come to reasonable agreements about who gets what, the multi-billion dollar divorce industry churns on anyway. Pro Tip: Don’t try use your lawyer to spitefully get back at your spouse.
So specifically, what are the things that we need to find common ground on with our spouse?
1. Custody arrangements. Who are the kids going to live with, for how long, and how will visitation work? What about holidays or out of country travel? Yes, there are some basic rough guidelines but there is a lot of room to argue about this, and people do. This is also the part of divorce law that people find the most emotionally taxing, your attorney should help prepare you for each of the steps involved.
2. Property division. It’s not just “who gets the house?” The application of California’s community property law is anything but straightforward. Arguments about what constitutes separate property vs community property are common. Property can also transmute (the legal word) from community property to separate property and vice versa. Strong divorce lawyers understand how to negotiate these nuances to best protect their clients and their clients’ children.
3. Spousal support. When there is a financial disparity between the spouses, and one is high-earning while the other is low-earning, the lower-earning spouse is typically entitled to spousal support, known also as alimony. This comes in two flavors, temporary and permanent. Temporary spousal support can be granted for the period of time while the divorce takes place. Divorces in California can take forevvvver so this could be significant. It is intended to keep the lower-earning spouse afloat while the divorce issues are hammered out and the amount they will receive is relatively fixed by a formula.
Temporary spousal support ends as soon as the divorce is finalized by the judge. After that, there may be a separate monthly payment made by one spouse to another known as permanent spousal support, thought it may not be actually permanent.
Permanent spousal support is another thing that the parties can debate during the divorce proceedings. The phrases “maintain the marital lifestyle,” or “same standard of living” get used a lot on TV, and we sometimes hear breathless news reports about so-and-so celebrity being awarded this many zillion dollars a month. The reality here is that this a tough to determine, not easily resolved issue. Evidence of marital lifestyle, and ensuing arguments about continuing that lifestyle, obviously can become emotionally charged. Again, a good attorney is really important here.
Hopefully you and your spouse can work with a mediator, or if that fails, with your own attorneys to work out a marital settlement agreement that can be presented to the judge. Call Christopher Marshall Law for additional information about your specific situation.