Preparing for Divorce in California: What the Law Requires and What to Expect

Preparing for divorce in California means knowing a few fixed rules before anything is filed. At least one spouse generally must meet the state and county residency requirements. No one has to prove fault. Both spouses generally must exchange sworn financial disclosures. Community property is generally divided equally. The marriage generally cannot end sooner than six months after service or appearance.

This article walks through those requirements in the order they tend to come up. It covers where a Carlsbad case is heard and which California rules govern it. It also explains what each rule means in practice.

What California Requires Before a Divorce Can Be Filed

Family Code section 2320 sets the residency threshold. A judgment of dissolution of marriage, which is California's legal term for divorce, generally cannot be entered unless one spouse has lived in California for six months before the petition is filed. That spouse must also have lived in the county where the case is filed for three months before filing. Only one spouse has to meet these requirements, not both.

A spouse who has not yet met the residence requirement may have another way to start. Under Family Code section 2321, in a proceeding for legal separation in which neither party had complied with the residence requirements of section 2320 when it began, either party may, upon complying with them, amend the petition or responsive pleading to request a judgment of dissolution. The date of filing of the amended petition or pleading is deemed the date the dissolution proceeding began, for the purposes only of the residence requirements of section 2320.

For a Carlsbad resident, the county is San Diego County. 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.

California is also a no-fault state. Under Family Code section 2310, a divorce may be based on either of two grounds, "which shall be pleaded generally": "(a) Irreconcilable differences, which have caused the irremediable breakdown of the marriage" or "(b) Permanent legal incapacity to make decisions." Neither spouse has to prove the other did anything wrong. The broader process is covered in the firm's overview of divorce in Carlsbad.

The Six-Month Waiting Period Under California Law

Family Code section 2339 generally provides that no judgment of dissolution is final to end 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."

That wording matters. The six months do not run from the day the petition is filed. They run from the date the other spouse, called the respondent, is served with the summons and petition, or from the date the respondent appears in the case, whichever comes first. A petition filed in March but not served until May starts the clock in May. The statute also allows the court to extend the period for good cause.

Six months is a floor, not a forecast.

Financial Disclosure: What Each Spouse Must Provide

Financial disclosure is generally required in a California divorce. A declaration of disclosure is a sworn financial statement each spouse serves on the other, executed under penalty of perjury.

The first round is the preliminary declaration of disclosure. Under Family Code section 2104(f), the petitioner serves it "either concurrently with the petition for dissolution or legal separation, or within 60 days of filing the petition." The respondent has the same choice, measured from the response. Those time periods can be extended by written agreement of the spouses or by court order. Under section 2104(c), the declaration must set forth, with enough particularity that a person of reasonable and ordinary intelligence can ascertain them, the identity of all assets in which the declarant has or may have an interest and all liabilities for which the declarant is or may be liable, regardless of whether they are characterized as community, quasi-community, or separate, along with the declarant's percentage of ownership in each asset and of obligation for each liability when property is not solely owned by one or both of the parties. Under section 2104(a) it includes all tax returns the declarant filed in the prior two years, and under section 2104(e) each party also provides a completed income and expense declaration unless one has already been provided and is current and valid.

A second round comes later. Family Code section 2105 generally requires each spouse to serve a final declaration of disclosure and a current income and expense declaration. The deadline is before or at the time the spouses reach an agreement on property or support. If the case goes to trial, the deadline is no later than 45 days before the first trial date. The spouses may mutually waive the final declaration. The final disclosure must include "all material facts and information" regarding the characterization of all assets and liabilities, and regarding the valuation of all assets that are contended to be community property or in which it is contended the community has an interest.

The consequences of leaving something out are real. Section 2105 states that perjury on the final declaration "may be grounds for setting aside the judgment." In plain terms, perjury on the final declaration can be a ground for setting aside the judgment.

The disclosure rules rest on a broader duty. Under Family Code section 721, spouses owe each other "a duty of the highest good faith and fair dealing," and neither may take unfair advantage of the other. That duty includes giving "true and full information" about community property transactions on request.

How California Divides Property: The Community Property Framework

Community property is generally property acquired by either spouse during the marriage while living in California. Family Code section 760 states the general rule: unless a statute provides otherwise, property "acquired by a married person during the marriage while domiciled in this state is community property." Under Family Code section 2550, the court divides the community estate equally. The exceptions are a written agreement, a stipulation in open court, or another statute providing otherwise.

Separate property is the other category. It belongs to one spouse alone and is not divided as community property. Family Code section 770 includes "all property owned by the person before marriage" and all property acquired during marriage "by gift, bequest, devise, or descent." In plain terms, that means gifts and inheritances. It also includes the rents, issues and profits of that property. A condo owned before the wedding or an inheritance received during the marriage falls within those categories.

Timing is the next point many people get wrong. Family Code section 2552 directs the court to value assets and debts "as near as practicable to the time of trial." On 30 days' notice by the moving party to the other party, and for good cause shown, the court may instead value all or any portion of the assets and liabilities at a date after separation and before trial. Property is not frozen at its value on the day the spouses separated.

Mixed property raises two different questions:

• Separate money put into community property. Under Family Code section 2640, a spouse who uses traced separate funds toward community property is reimbursed. Examples include a down payment, improvements, or principal payments on the loan. Interest, maintenance, insurance and taxes do not count. The reimbursement is without interest and cannot exceed the property's net value at division. A written waiver ends the right to reimbursement.
• Community money paying down a separate-property home. This is the opposite situation: community earnings paying down the loan on a home that one spouse owned before marriage. Courts call this kind of case a Moore/Marsden apportionment.

Businesses add another layer. A business's value can include goodwill. Its value is decided on the evidence, often with the help of experts. The firm's page on property division in Carlsbad goes further into how these questions are sorted out.

Spousal Support and the Long-Marriage Consideration

In ordering spousal support under Family Code section 4320, the court "shall consider all of the following circumstances," including these:

• The extent to which each spouse's earning capacity is sufficient to maintain the standard of living established during the marriage.
• Time spent out of work to handle domestic duties.
• Contributions to the other spouse's education or career.
• The supporting spouse's ability to pay.
• Each spouse's needs based on the standard of living established during the marriage.

A spouse is generally entitled to an equal share of the community estate under section 2550. Support is a separate question, and the court answers it by weighing those factors against the facts of the case.

The so-called ten-year rule comes from Family Code section 4336. For a marriage of long duration, the court "retains jurisdiction indefinitely" over support unless the spouses agree otherwise in writing or a court order ends it. The statute presumes that a marriage of ten years or more is of long duration, measured from the date of marriage to the date of separation. A court may also find that a shorter marriage qualifies. "Retains jurisdiction" means the court keeps the power to revisit support later. It does not mean support lasts forever. Section 4336 preserves the court's discretion to end support on a showing of changed circumstances.

Section 4320(l) adds the goal that the supported spouse be self-supporting within a reasonable period of time. Except for a marriage of long duration as described in section 4336, a "reasonable period of time" generally shall be one-half the length of the marriage, and nothing in the section limits the court's discretion to order support for a greater or lesser length of time. Support can also be ordered while the case is pending: under Family Code section 3600, during the pendency of a dissolution proceeding the court may order either spouse to pay any amount necessary for the support of the other spouse, consistent with subdivisions (i) and (m) of section 4320 and section 4325, or either or both parents to pay any amount necessary for the support of a child. This is sometimes called pendente lite support, Latin for "pending the litigation."

More detail is on the firm's spousal support page.

Children, Custody, and the Role of Family Court Services in San Diego County

When children are involved, custody decisions turn on the child's best interests. Under Family Code section 3011, the court considers factors including "the health, safety, and welfare of the child" and any history of abuse.

Mediation is required when custody is contested. Family Code section 3170(a) provides that when a pleading shows custody or visitation is contested, "the court shall set the contested issues for mediation." Mediation of a contested custody or visitation issue is not voluntary. For other kinds of mediation, see divorce 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 make a recommendation to the court, consistent with local court rules, if it is first provided in writing to the parties and their attorneys before the hearing. Family Court Services calls this person the Family Court Counselor. The court's Family Court Services explains that if no agreement is reached, the Family Court Counselor makes a recommendation to the court, and the court hearing proceeds. The judge makes the decision.

Under section 3170(b), domestic violence cases are handled by Family Court Services under a separate written protocol approved by the Judicial Council.

The firm's page on child custody in Carlsbad covers the best-interest factors in more depth.

Documents and Information to Gather Before Filing

The disclosure rules described above shape what records matter. A person preparing to file typically needs enough paperwork to complete the preliminary declaration of disclosure within its 60-day window, and to support any claim that something is separate property. The records that usually come up are these:

• Tax returns for recent years. These show income, business interests and the figures used in support discussions.
• Bank, investment and retirement account statements. These are the core of the asset schedule.
• Mortgage statements, deeds and records of separate-property contributions to real estate. These matter for section 2640 reimbursement and for Moore/Marsden questions.
• Pay stubs and records of self-employment income. These feed the income and expense declaration.
• Records of debts. These include credit cards, loans and lines of credit.
• Proof of separate property. This means inheritance records, statements from accounts held before marriage, and documents showing gifts.
• Information about the children. This includes schools, healthcare providers and the current parenting arrangement.

Tracing is the reason older records carry weight. A separate-property claim usually depends on showing where money came from, sometimes years back. The firm's financial documents checklist lists these categories in more detail.

Where Carlsbad Divorce Cases Are Filed and Heard

A divorce filed by a Carlsbad resident proceeds under California's Family Code and is 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.

Carlsbad Family Law Advocates serves clients in Carlsbad and in the surrounding North County communities of Oceanside, Vista, San Marcos, Encinitas, Solana Beach, Del Mar and Rancho Santa Fe.

For official procedural information, the Judicial Council's California Courts Self-Help Guide is a statewide court resource. The California Courts website provides general information about the state court system.

Talking With the Firm About Preparing for Divorce

Preparing for a divorce raises questions that depend on the facts of the marriage. These include when residency was established, what each spouse brought into the marriage, how long the marriage lasted, and whether a parenting schedule is likely to be contested. A consultation is a place to raise those questions. Carlsbad Family Law Advocates practises California family law only.

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