Summary of California Divorce Law

Initial considerations for Divorce

To file for divorce in California, at least one party must be a resident of the state for 6 months and either party a resident of the county in which the action is brought for 3 months. The action needs to be filed in Superior Court in the specific county in which one of the parties has been a resident for three months. The Superior Court has jurisdiction over all the issues of the divorce including division of property and child custody.

Grounds for Divorce

Grounds for divorce are the legal reasons or basis for the divorce. California recognizes two grounds for divorce: “irreconcilable differences” and “incurable insanity.” Not surprisingly, “irreconcilable differences” is the much more common reason given. California is considered a "no-fault" state for divorce. “Irreconcilable differences” are defined at Sec. 2311 as follows: “Irreconcilable differences are those grounds which are determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved.”

Division of Property

In California, the rules for the distribution of property are straightforward. Property is divided into two types: separate property and community property. Sec. 2551. The trick is to figure out what property is separate property and what property is community property.

Sec. 770. (a) 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.

Separate property is awarded to the party that owns it separately. Community property is treated as follows:

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, in a proceeding for dissolution of marriage or for legal separation of the parties, the court shall, either in its judgment of dissolution of the marriage, in its judgment of legal separation of the parties, or at a later time if it expressly reserves jurisdiction to make such a property division, divide the community estate of the parties equally. Sec. 2550.

Additionally, section 760 of the California Code provides that, “[e]xcept as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in California is community property.

Separate property is not included in the division of the community estate. Significantly, the burden of proof rests on the individual party to establish property as separate and not subject to community property treatment.