The Final Divorce Judgment in California: What It Is and What It Does

A final divorce judgment in California is the judgment of dissolution of marriage that Family Code section 2338 says shall be entered when the court determines that a dissolution should be granted. Under section 2339, no judgment of dissolution is final for the purpose of terminating the marriage until six months have expired from service of the summons and petition or the respondent's appearance, whichever occurs first, subject to subdivision (b) and sections 2340 to 2344.

This article walks through what the judgment is, when the marriage ends, what the judgment contains, and when it can be reopened or modified.

What a Final Divorce Judgment Is Under California Law

The judgment is the court's written decision in a dissolution case, the legal name for a divorce. Under Family Code section 2338, once the court decides a dissolution should be granted, "a judgment of dissolution of marriage shall be entered."

Two separate events matter here: entry of the judgment, and termination of the marital status. Under Family Code section 2343, the court may retain jurisdiction over the date of termination of the marital status or order that it be terminated at a future specified date, so the two can be different days. Under section 2338(c), after entry of the judgment of dissolution and before it becomes final, neither party has the right to dismiss the proceeding without the consent of the other.

Family law cases from Carlsbad are generally heard at the Superior Court of California, County of San Diego, North County Regional Center, 325 South Melrose Drive, Vista, CA 92081. The court describes that courthouse's venue as most of northern San Diego County.

The Six-Month Waiting Period: When It Starts and What It Means

Family Code section 2339(a) sets the clock. It says no judgment of dissolution is final for the purpose of ending the marriage "until six months have expired from the date of service of a copy of summons and petition or the date of appearance of the respondent, whichever occurs first."

The six months do not start when the petition is filed. A petition filed in March but not served until May starts its clock in May, unless the respondent appeared first. That gap can push the earliest possible end date back by weeks or months.

The six months are a floor, not a promise. Section 2339(a) is subject to subdivision (b) and to sections 2340 to 2344, which this article does not cover. Under section 2339(b), the court may also extend the period for good cause shown.

So, how long until a divorce is final in California? At the earliest, once six months have expired from service or appearance, whichever came first, subject to subdivision (b) and sections 2340 to 2344. A broader walk-through of each stage appears in the firm's California divorce process timeline.

A related rule, Family Code section 2343, lets the court reserve the question of the termination date or set a future date for it, on notice and good cause or by agreement. On that date, the statute says, the spouses "are restored to the status of unmarried persons."

What the Judgment Contains: Property, Support, and Custody

Community property. Under Family Code section 760, except as otherwise provided by statute, property acquired by a married person during the marriage while domiciled in California is community property. Family Code section 2550 provides that, except on the spouses' written agreement, an oral stipulation in open court, or as otherwise provided by law, the court "shall... divide the community estate of the parties equally." The court can do this in the judgment itself or, if it expressly reserves jurisdiction, at a later time.

Valuation. Under Family Code section 2552(a), the court values assets and debts "as near as practicable to the time of trial." Under section 2552(b), on 30 days' notice and for good cause, the court may value some or all of them at a date after separation and before trial, to reach an equal division in a fair way. The date of separation is not the default valuation date.

Separate property and reimbursement. Under Family Code section 770, separate property includes property owned before the marriage, property acquired after marriage by gift, bequest, devise, or descent, and the rents, issues, and profits of that property. Family Code section 2640 deals with separate money put into community property. If a spouse traces a down payment, payments for improvements, or principal payments on a loan to a separate source, that spouse is generally reimbursed, without interest and not more than the property's net value at division, unless the right was waived in writing.

Moore/Marsden apportionment is the opposite situation, community money paying down a loan on a home that is one spouse's separate property. Section 2640 does not address it. The community's share comes from California case law (In re Marriage of Moore (1980) 28 Cal.3d 366; In re Marriage of Marsden (1982) 130 Cal.App.3d 426): the community's principal payments are compared with the purchase price, that percentage is applied to the home's appreciation, and amounts paid for interest, taxes and insurance are not counted toward the community's share.

Business interests. When one spouse owns a business or professional practice, its value can include goodwill. That value is decided on the evidence, often with experts on each side.

Spousal support. The judgment may order spousal support, money one spouse pays the other after divorce. For a marriage of long duration, Family Code section 4336(a) provides that, except on the spouses' written agreement to the contrary or a court order terminating support, "the court retains jurisdiction indefinitely." Under section 4336(b), a marriage of 10 years or more, measured from the date of marriage to the date of separation, is presumed to be of long duration. The court may weigh periods of separation during the marriage, and it may also find that a shorter marriage is of long duration. This is what people mean by the "ten-year rule." It does not mean support is automatically awarded or lasts forever. It means the court keeps the power to revisit it. The firm's page on spousal support in California covers the subject in more depth.

Custody and visitation. If custody or visitation is contested, Family Code section 3170(a) requires that "the court shall set the contested issues for mediation." In San Diego County, that mediation is child custody recommending counseling with the court's Family Court Services. Under Family Code section 3183(a), the mediator, called a child custody recommending counselor, may, consistent with local court rules, submit a recommendation to the court, if it is first provided in writing to the parties and their attorneys before the hearing. Family Court Services, which calls this person the Family Court Counselor, says that if no agreement is reached, the counselor makes a recommendation to the court and the hearing proceeds. The judge decides. Under section 3170(b), domestic violence cases are handled by Family Court Services under a separate written protocol approved by the Judicial Council. More on custody is in the firm's guide to child custody in Carlsbad.

Child support. When children are minors, child support is set under the statewide uniform guideline in Family Code section 4055, a formula built on the parents' net monthly disposable income and the approximate percentage of time the higher earner has primary physical responsibility for the children. The firm's page on child support in Carlsbad explains how that formula plays out.

Disclosure Requirements Before the Judgment Is Entered

A declaration of disclosure is a sworn statement of each spouse's assets, debts and finances, signed under penalty of perjury on a Judicial Council form. California requires two rounds.

The first is the preliminary declaration. Family Code section 2104(f) says the petitioner serves it "either concurrently with the petition for dissolution or legal separation, or within 60 days of filing the petition." The respondent serves it with the response or within 60 days of filing the response. The spouses can extend those periods by written agreement, or the court can extend them by order.

The second is the final declaration. Under Family Code section 2105(a), each spouse serves a final declaration of disclosure and a current income and expense declaration, except by court order for good cause, before or at the time they enter an agreement on property or support issues other than pendente lite support. If the case goes to trial, the deadline is no later than 45 days before the first assigned trial date. The spouses can mutually waive the final declaration. When it is served, it must include all material facts about the characterization of assets and debts, meaning whether each is community or separate, along with the value of contested community assets and the amounts of community obligations.

Section 2105(a) states that perjury on the final declaration of disclosure may be grounds for setting aside the judgment, or any part of it.

How the Judgment Is Entered at the North County Court

Under Family Code section 2338(a), in a proceeding for dissolution of marriage the court files its decision and any statement of decision as in other cases, and under section 2338(c), if the court determines that a dissolution should be granted, a judgment of dissolution of marriage is entered. When a respondent has defaulted, Family Code section 2336(a) provides that a judgment of dissolution is not granted on the default alone: the court requires proof of the grounds alleged, and the proof, if not taken before the court, is by affidavit. Where there are minor children, each affidavit or offer of proof must include an estimate of the monthly gross income of each party, and where there is a community estate it must include an estimate of the value of the assets and the debts the declarant proposes to distribute to each party, unless a complete and accurate property declaration has been filed. Under section 2336(b), the affiant must appear personally only if it appears to the court that reconciliation is reasonably possible, a proposed child custody order is not in the best interest of the child, a proposed child support order is less than a noncustodial parent is capable of paying, or a personal appearance would be in the best interests of justice. Family law cases from Carlsbad are generally heard at the Superior Court of California, County of San Diego, North County Regional Center, 325 South Melrose Drive, Vista, CA 92081. The San Diego Superior Court's family law self-help resources and the California Courts Self-Help Guide on divorce describe the court-side steps.

What Changes — and What Does Not — Once the Judgment Is Final

On the termination date, each spouse is restored to the status of an unmarried person under Family Code section 2343. Each is legally single.

A motion to set aside a judgment, or any part of it, is governed by Family Code section 2122, covered in the next section. Section 2123 adds that a judgment "may not be set aside simply because the court finds that it was inequitable when made, nor simply because subsequent circumstances caused the division of assets or liabilities to become inequitable, or the support to become inadequate." Separately, section 2556 gives the court continuing jurisdiction to award community estate assets or liabilities that were not previously adjudicated by the judgment, on a postjudgment motion or order to show cause in the proceeding.

Support and custody orders can be changed. Family Code section 3651(a) provides that, subject to listed exceptions, "a support order may be modified or terminated at any time as the court determines to be necessary," and section 3651(c)(1) generally bars modifying or terminating a support order as to an amount that accrued before the notice of motion or order to show cause to modify or terminate was filed. For custody, Family Code section 3022 provides that the court may make an order for the custody of a child during minority that seems necessary or proper "during the pendency of a proceeding or at any time thereafter."

Family Code section 4336(c) provides that nothing in that section limits the court's discretion to terminate spousal support in later proceedings on a showing of changed circumstances. For marriages of long duration, the ten-year rule discussed earlier keeps the court's support jurisdiction open unless a written agreement or court order ends it.

Some documents signed before the divorce are addressed by the Probate Code. Under Probate Code section 6122(a), unless the will expressly provides otherwise, if after executing a will the testator's marriage is dissolved, the dissolution revokes any disposition of property made by the will to the former spouse and any provision nominating the former spouse as executor, trustee, conservator, or guardian. Under section 5040, a nonprobate transfer to the former spouse, of a type described in Probate Code section 5000, fails if at the transferor's death the former spouse is not the surviving spouse because of the dissolution, with exceptions, and the statute's definition of "nonprobate transfer" does not include "a provision of a life insurance policy." Under section 5042, a joint tenancy between the decedent and the former spouse is severed as to the decedent's interest in the same circumstances, again with exceptions. Each rule has conditions, so the statute for the particular document governs.

When the Judgment Can Be Reopened or Modified

Setting aside a judgment and modifying an order are two different things. Setting aside means undoing all or part of a judgment and requires one of the grounds listed in section 2122.

Family Code section 2122 lists those grounds and their time limits, including:

• Actual fraud, where a spouse was kept in ignorance or otherwise prevented from fully taking part. The motion must be brought within one year after the fraud was discovered, or should have been discovered.
• Perjury in the preliminary or final declaration of disclosure, a waiver of the final declaration, or the income and expense statement. Also one year from discovery.
• Duress, within two years after entry of judgment.
• Mental incapacity, within two years after entry of judgment.
• Mistake, mutual or one-sided, of law or of fact, as to stipulated or uncontested judgments or the part of a judgment stipulated to by the parties. Within one year after entry of judgment.
• Failure to comply with the disclosure requirements of Chapter 9 (commencing with Section 2100). The motion must be brought within one year after the complaining party discovered, or should have discovered, the failure to comply.

Each ground has its own rules, and the time limits run from different starting points.

Family Code section 1101 gives a spouse a claim against the other for a breach of fiduciary duty, when it impairs the claimant's one-half interest in the community estate. Under section 1101(b), a court may order an accounting of the spouses' property and debts. Whether a set-aside motion, a fiduciary-duty claim, or both fits a particular situation depends on the facts and the timing.

Talking With the Firm About the Divorce Judgment

Carlsbad Family Law Advocates practises California family law only. Its North County service area includes Oceanside, Vista, San Marcos, Encinitas, Solana Beach, Del Mar and Rancho Santa Fe.

To talk with the firm about the final divorce judgment, call Carlsbad Family Law Advocates at (760) 840-5102 for a confidential consultation.