Back To Basics: Residency Requirement To Get A Divorce In California

If you need to obtain a California divorce there is a state residency requirement and you can look to California Family Code Section 2320. Section 2320 requires that a judgment of dissolution of marriage may not be entered unless one of the parties to the marriage has been a resident of California for six months and of the county in which the family law matter is filed for three months immediately before you file your petition with the Superior Court.

However, if you are obtaining a legal separation, please note that you may file a petition for legal separation before the residency requirement for divorce have been met. This means that if you cannot meet the state's residency requirement for divorce, an option may be to file for legal separation and then amend the petition to seek dissolution after at least one spouse has met the state residency requirement. If you have some doubts as to whether you or your spouse meets the state residency requirement for divorce in California, please feel free to contact one of our attorneys at Castellanos & Associates, APLC at (323) 655-2105. We will be happy to discuss with you the state jurisdictional requirements for obtaining a divorce in California.

Back To Basics: Can I Obtain A Divorce In California If I Have a Common Law Marriage?

A couple cannot become legally married by living together as man and wife in California (a so-called "common law" marriage). If you want to obtain a divorce in California you must have a valid marriage. If the marriage never took place or is void, then getting a divorce in California would not be appropriate.
However, a  marriage may be considered "valid" in California if it is valid under the laws of the state in which you entered into the marriage. Therefore, while California law does not recognize "common law" marriages entered into within California, a "common law" marriage  recognized as valid in the place where the marriage was originally entered into may be considered a valid marriage in California and may entitle you to divorce in California.

In California, it is important to note that it may be possible to obtain compensation similar to the division of community property and "palimony" under California civil contract law. Please: If you are at all unclear about the validity of your marriage, or if you are unmarried and break up with your partner, you should consult with a qualified family law attorney to help you understand your rights and to explain just how California law would apply in your situation. This is particularly important if you and your long term partner had children as a result of your long-standing relationship together. If you are in need of legal advice, please feel free to contact our office at (323) 655-2105. One of our California licensed family law attorneys will be happy to  discuss your legal matter with you.

Back To Basics: What Are The Grounds For Obtaining a Divorce In California?

California is a "no-fault" divorce state. What does the emphasis of "fault" or "no-fault"  really mean? Before the enactment of the Family Law Act of 1969, a divorce could be obtained in California if one spouse could prove the other spouse committed adultery, extreme cruelty (resulting in grievous bodily injury or grievous mental suffering), willful desertion, willful neglect, or habitual intemperance, or if the other spouse was convicted of a felony, or was incurably insane.

Consequently, when California emphasized the use of "fault" in  divorce proceedings, the law required the "innocent" party to receive more than half of the community property in an amount determined by the trial court. Needless to say, divorce proceedings in California became "adversarial" in nature as the innocent" spouse was extremely motivated to prove "fault" to obtain a greater division of property from the marriage. 

After the enactment of the Family Law Act in the Family Code, proving "fault" was no longer part of the judicial framework for obtaining a divorce in California. Today, California has two grounds for obtaining a divorce, which have no basis in fault. These grounds are "irreconciliable differences" or "incurable insanity."

Further, California law provides for the equal division of community property without any reference to or proof of "fault" by one spouse against the other spouse. While acts of misconduct may be used in some circumstances in child custody proceedings, it is important to understand that except as may be provided for in limited circumstances enumerated by statute, any specific acts of misconduct may not be used in a divorce proceeding as a basis for obtaining a judgment of marital dissolution or legal separation in the State of California.