Divorce In California: Common Law Or Not?

California has unique divorce laws, including a six-month waiting period from the time of filing for divorce until it is finalised. While California does not recognise common-law marriages, it may be possible to file for divorce in the state if a couple has a valid common-law marriage from another state. California abolished common-law marriages in 1895, and couples must obtain a marriage license and formally register their union to be considered legally married. Couples with a domestic partnership registered in California do not need to meet the residency requirement for divorce, but if neither partner meets it, the court may end the partnership without deciding on property, support, or children.

California does not recognise common-law marriages

California does not allow common-law marriages within the state. This means that a couple won't be considered legally married, no matter how long they've lived together in California. However, there are exceptions to this rule. California may recognize a common-law marriage if it is valid under the laws of another state or country. For example, if a couple legally enters into a common-law marriage in another state or country and then moves to California, the state of California may recognize that marriage.

In California, recognition of common-law marriages ended over 100 years ago, in 1895. However, this does not mean that California will never recognize a common-law marriage. While it is generally true that California does not recognize common-law marriages formed within the state, there are some instances where California courts have recognized common-law marriages formed in other states. A notable example is the 1986 appellate court decision in the Marriage of Smyklo, where a common-law marriage from Alabama was recognized in California.

In situations where no valid common-law marriage exists, but a couple shares assets in California, several legal questions may arise. For example, does the joint account provide equal rights to the funds within it? Are either of the parties listed as an alternate payee on a 401(k) or a pension beneficiary? Does being on the title to real estate confer equal or other ownership interests? Does the form of title (tenancy in common or joint tenancy) matter?

If a couple has been in a legally recognized marriage for ten years or longer, it is considered a long-term marriage. This only impacts a couple if they divorce. Divorcing couples who were married for ten years or longer generally have higher spousal support. They could also receive their ex-spouse's Social Security benefits. However, spousal support is still not mandatory.

Divorce is not immediate—a six-month waiting period is required

California has a unique set of laws regarding divorce. One notable feature is the requirement of a six-month waiting period from the time of filing for divorce until it is finalised. This mandatory waiting period means that even if both spouses are in full agreement on the terms of the divorce and have completed all the necessary paperwork, they must still wait six months before the divorce can be legally finalised.

This waiting period is a standard feature of the divorce process in California and is intended to give couples a cooling-off period and an opportunity to be certain that they want to proceed with the divorce. It also allows time for any necessary arrangements to be made regarding the division of assets and debts, which can be a complex process. California is a community property state, meaning that all assets and debts acquired during the marriage are generally considered community property and will be subject to equal division upon divorce, regardless of which spouse acquired them. This can include assets such as pension plans if they were contributed to during the marriage.

The waiting period also provides an opportunity for couples to attempt reconciliation, if they so desire. While it may be too late to save the marriage, the six-month period can be used constructively to lay the groundwork for a more amicable separation and to make any necessary arrangements for co-parenting if children are involved.

During this waiting period, it is advisable for couples to seek legal advice to ensure they understand their rights and obligations. This is especially important in California, as the state does not recognise common-law marriages. Therefore, couples who were in a common-law relationship before marrying, or who assumed common-law rights during their marriage, may find that their rights and entitlements differ from what they expected, particularly regarding property and asset division.

In summary, the six-month waiting period required for divorce in California serves multiple purposes, from ensuring couples have made necessary arrangements to providing an opportunity for reconciliation. It is a standard part of the divorce process in California and must be adhered to before a divorce can be legally finalised.

Couples must meet residency requirements to file for divorce in California

To file for divorce in California, couples must meet the state's residency requirements. California does not allow common-law marriages, so you can't get a divorce unless you obtained a marriage license, had a ceremony, and fulfilled the other requirements for a legal marriage.

If you or your spouse has recently moved to California, you must wait until you meet the residency requirements before filing for divorce. The requirements mandate that either you or your spouse must have lived in California for the past six months and in the county where the divorce petition will be filed for the past three months. If neither of you meets the residency requirements, the court may still end your marriage, but it might not be able to make decisions about property, support, or children.

If you don't meet the residency requirements, you have a few options. You can file for a legal separation until you meet the requirements for divorce. Alternatively, if you or your spouse came from a different state that you lived in for at least six months, you can return to that state and file for divorce, as long as you meet that state's divorce residency requirements. Another option is to file for divorce in the county where you were married if that county has different residency requirements.

There are exceptions to the residency requirements for same-sex married couples and registered domestic partners. Same-sex married couples who married in California but live in a state that does not allow same-sex divorces may get a divorce in California regardless of residency requirements by filing in the county where they were married. Registered domestic partners in California do not need to meet the same residency requirements as married couples, and they can end their partnership by filing in California even if they have never lived in the state.

California is a no-fault state, meaning fault does not need to be established

California does not recognize common-law marriages. The state abolished common-law marriages in 1895, and couples must obtain a marriage license and formally register their union to be considered legally married. Therefore, a couple cannot file for divorce based on a common-law marriage in California. However, if they have a valid common-law marriage from another state, they may file for divorce in California.

Additionally, California is a community property state, meaning that all assets and debts acquired during the marriage are generally considered community property and will be subject to equal division upon divorce, regardless of who acquired them. This could include assets such as pension plans if they were contributed to during the marriage. However, separate property, such as assets owned by either spouse prior to the marriage, may not be subject to division.

It is important to note that California requires a six-month waiting period from the time of filing for divorce until it can be finalized. This waiting period allows for a simpler divorce process if the couple has been married for less than five years and has no children. During this time, it is recommended that couples seek legal assistance to help navigate the complexities of divorce law in California.

Child custody and support are determined by the child's best interests

California does not allow common-law marriage. To get a divorce in California, a couple must have a valid marriage license. This means that a couple must have lived together for a long time, but this alone does not count as a legal marriage in California.

When it comes to child custody and support, California law puts a heavy emphasis on ensuring that the child's needs are met and that their overall well-being is prioritised. This means that the court will take into account factors such as the child's age, their relationship with each parent, their medical and educational needs, and any special considerations or circumstances that may be unique to the child.

The court will also look into each parent's history of care and willingness to support the child's ongoing needs. This includes any history of abuse, neglect, or substance dependency that may impact the child's safety or ability to thrive in the care of a parent. Judges may not take into account the sex, gender, or orientation of a parent when making a determination as to what is in the child's best interests. This protects people from losing parental rights due to gendered bias or homophobia.

In certain cases, a judge may find that limiting one parent's custody rights is in the child's best interests. This occurs when a parent cannot provide a safe and healthy environment for their child. For example, exposure to drug use or domestic violence may be grounds for the court to restrict or prohibit visitation, awarding full custody to the other parent.

Parents who are willing to collaborate and promote the child's relationship with the other parent are more likely to receive favourable custody arrangements. Parents seeking custody for selfish reasons, such as revenge or control, can negatively impact their custody case.

In California, the ultimate goal of custody laws is to create a stable and supportive environment for the child to grow and thrive in.

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