California Divorce Procedures

California Divorce Procedures

Complete overview of California divorce laws for people considering a California divorce or filing a California divorce with issues to be resolved about child custody, child support, visitation and alimony.

California State Divorce Residency Requirements

In order to file your Petition for Dissolution of Marriage in California, you must make sure the Superior Court has jurisdiction over your case. The most common way spouses are eligible to use a specific court system is by meeting the residency requirements. Meeting the California residency requirements is typically only a concern for a spouse who has recently moved or is planning to move in the near future. The filing requirements are as follows:

A judgment of dissolution of marriage may not be entered unless one of the parties to the marriage has been a resident of this state for six months and of the county in which the proceeding is filed for three months next preceding the filing of the petition.

For the purpose of a proceeding for dissolution of marriage, the husband and wife each may have a separate domicile or residence depending upon proof of the fact and not upon legal presumptions.

The Dissolution of Marriage is typically filed with in county in which the filing spouse lives.

(California Code – Sections: 297, 298, 2320, 2339)

Since a dissolution of marriage is governed by state law, it is required that you meet specific residency requirements in order to file for a dissolution of marriage in the state of California. It is most common that people file for a dissolution in the county in which they live. If you are unsure of whether or not you meet the California residency requirements you can try contacting the Clerk’s office of the domestic relations or family law division of your county courthouse.

California Grounds for Divorce

The Petition for Dissolution of Marriage is the initial document filed with the California court. It is in this document that the filing spouse will request the court to terminate the marriage under certain specified grounds.

Dissolution of the marriage may be based on either of the following grounds:

a) Irreconcilable differences, which have caused the irremediable breakdown of the marriage;
b) Incurable insanity.

Irreconcilable differences are those grounds which are determined by the court to be adequate reasons for the marriage to not continue and which makes it evident that the marriage should be terminated.

A marriage may be terminated by reasons of incurable insanity only upon ample proof, including competent medical or psychiatric testimony from a professional, that the spouse was at the time the petition for dissolution of marriage was filed, and actually remains, incurably insane.

(California Code – Sections: 2310)

Every divorce case that is filed in the state of California must declare the grounds in which the divorce is to be granted. The grounds for divorce must be substantiated with evidence or testimony otherwise the court may dismiss the case. When you are petitioning the court for a divorce, or agreeing to a divorce, make sure that you completely understand the grounds and any potential legal repercussions.

California Uncontested Divorce

This information is an overview of the uncontested California divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those “do it yourself divorce” filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in California.

In California the term “irreconcilable differences” describes No-Fault divorce. It means that “irreconcilable differences have caused an irremediable breakdown of the marriage.” Divorce is also granted on grounds of incurable insanity.

In California, as in other states, divorces may be either contested or uncontested, but uncontested, No-Fault divorces move through the courts more quickly and less expensively.

California is a community property state. This means that assets and liabilities are either community property (half is one spouse’s, half the other’s, such as the marital home acquired during the marriage), or separate property (one spouse’s alone, such as gifts and inheritances).

In California, the party who files is called the Petitioner; the party who answers is called the Respondent. The divorce is filed in the Superior Court, normally the county of residence of the couple. One spouse or the other must have lived in California for at least six months and in the county where the divorce is being filed for at least three months. Moreover, there is a six-month waiting period after the service of process or an Answer by the Respondent before the divorce becomes final.

Most of the forms used in divorce in California are those adopted by the California Judicial Council, and their use is mandatory. County courts also have forms that may be used in compliance with local rules governing divorce. Some counties require that all forms be completed in black ink.

California permits what is called a Summary Dissolution of Marriage. Also called a simplified or special dissolution of marriage, a summary action is an inexpensive and easy way to divorce for those couples who qualify, but both the husband and wife must be certain they want to go this route because either can change his or her mind during the six-month waiting period between the filing and the finalization of the action. To qualify for this divorce routine, a couple must meet these requirements:

a) Read the Summary Dissolution Booklet provided by the court clerk.
b) Be married five or fewer years.
c) Have no children born to them before or during the marriage.
d) The wife must not be pregnant.
e) The spouses may have no natural or adopted children.
f) Neither spouse may have an interest in real estate.
g) Their community property may not be worth more than $25,000, not including car and car loans.
h) The community obligations are less than $5,000, not including car and car loans.
i) The husband and wife have prepared a signed an agreement dealing the terms and conditions of the division of possessions and debts.
j) Both spouses have signed a Joint Petition for Summary Dissolution of Marriage.
k) Both spouses want to end the marriage because of serious and permanent differences.
l) Both spouses agree to use the summary dissolution rather than the regular dissolution.

While there are many conditions for a simplified divorce, the procedure is simple. It works as follows:

a) Both spouses file the Joint Petition for Summary Dissolution of Marriage with the county clerk.
b) Both spouses wait six months.
c) Either spouse files the Request for Judgment, Judgment of Dissolution of Marriage and Notice of Judgment with the same clerk.
d) The court grants the divorce without a hearing.

In addition to the six-month option to change, either spouse may stop the divorce at any time during this period. The marriage ends only if after this six-month period one spouse files a Request for a Final Judgement with the county clerk on the designated form. Failure to file the Request for Judgment may result in the court dismissing the case for lack of action. After the judgment is final, neither spouse has any right to expect money from the other (except for what is agreed to in the property settlement agreement). Both spouses agree to give up certain rights each might have had in a regular dissolution, such as support, the right of appeal, the right to have a court decide any new arrangements. In the event of a change of heart — a reconciliation or a desire to use the standard divorce procedure — the couple can stop the action by filing a Notice of Revocation of Petition for Summary Dissolution, again in the same county clerk’s office.

The procedural requirements for an uncontested divorce come from California statutes, the California rules of Court, and the local rules of court. Depending on the situation, the couple will file a variety of court papers. These include a property settlement agreement dividing community property (the martial estate) and establishing the terms and conditions of child care and spousal support. However, the basic steps for an uncontested divorce are as follows:

a) File a petition asking the court to grant a divorce.
b) Notify of the other spouse that a divorce has been filed. This is called the Summons-Family Law, and it includes a response form.
c) File a declaration of finances.
d) Obtain a hearing date.
e) Attend a hearing before the judge, who will sign a judgment finalizing the divorce. If both spouses agree, neither may have to appear at the divorce hearing.

In all cases, the divorce begins with the Petition, the Summons-Family Law, Response and any local forms that may be required by the county court. The Petition, the Summons-Family Law, Response and any local forms that may be required are normally served by a process server and may not be hand-delivered to the other spouse by the Petitioner because he or she is a party to the action. This is called Service of Process. Other forms may normally be mailed to the other party by certified mail.

The Petition, which must be completed in all cases, identifies the Petitioner and Respondent, the date of the marriage, the date of separation, the minor children (if any), makes a declaration of the community and quasi-community assets and debts and states the relief sought. Depending on the situation — that is, whether or not the couple are in agreement — other forms (see below) may be accompanied with the Petition. For example, if there are minor children of the marriage, the petitioner must file the Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and attach it to the petition. The couple may have also already written a Marital Settlement Agreement (MSA), in which case it is submitted as an attachment.

The Summons-Family Law is the Notice of Service of Process. It is the proof of service. It stipulates the manner of service to the Respondent. It gives him or her 30 days to respond and carries with it a warning that failure to respond may result in a default judgment against him or her. The Summons also restrains both parties from removing minor children from the state and dissipating marital assets.

After one spouse files, uncontested divorces evolve in one of two ways.

The first is when the spouses agree on every issue: asset and liability division, the terms and conditions of child custody, support and visitation, alimony. A divorce can be said to be uncontested when the spouses do the fighting before going to court, come to an agreement, and the judge then approves it if it is fair and reasonable.

The second way happens when the Respondent does not respond to the petition for divorce. In addition, sometimes the responding spouse cannot be located. Sometimes divorcing spouses agree that the responding spouse will default. This is not collusion, and divorce proceeds through the court with his or her agreement.

Depending on the course of the divorce, however, other forms and court papers, some mandatory and some depending on the situation, need to be filed. These may include any of the following:

> Request to Enter a Default. The Request to Enter a Default is used when:

a) a spouse who has been served fails to respond within 30 days; or
b) the respondent spouse cannot be located.

If a spouse does not respond in 30 days, the petitioner may file a Request to Enter a Default, which bars the respondent from further entering into his or her own divorce case.

> Declaration for Default or Uncontested Dissolution (or Legal Separation). The Declaration for Default or Uncontested Dissolution is used when:

a) the respondent spouses defaults (does not file a response); or
b) when both spouses agree on all issues.

When a couple agree on all issues, or when either defaults, the court may issue a Declaration for Default or Uncontested Dissolution, which results in a Judgment for Dissolution without a court appearance. After a summary action, an uncontested action coursing along this default route is probably the easiest route to a divorce.

> Declaration Regarding Service of Declaration of Disclosure and Income and Expense Declaration. The Declaration of Disclosure is a voluntary disclosure made by both spouses declaring all property each has, both separate and marital. The Income and Expense Declaration is a voluntary disclosure of each spouse’s incomes and expenses. Normally a preliminary and a final declaration are made, and a party may waive the final disclosure, but the preliminary disclosure must be made within 60 days of service of process. These disclosures are sometimes included with the Petition and Summons.
> Appearance, Stipulation and Waivers. The Appearance, Stipulation and Waivers are forms completed by both spouses that stipulate even though the respondent has entered appearance, the action is not contested.

This form may be used in some counties when a Martial Settlement Agreement (MSA) is to be filed as part of the judgment.

> Schedule of Assets and Debts. The Schedule of Assets and Debts is a four-page form lists:

a) all property, separate and community;
b) indicates who owns them;
c) lists the date of acquisition and the gross market value (gross means without the debt against it, if any), and shows the debt against any asset.

> Income and Expense Declaration shows income and expenses of each spouse.
> Wage and Earnings Assignment Order for Spousal Support. In the event of alimony, the Wage and Earnings Assignment Order for Spousal Support is a mandatory form served on an paying spouse’s employer who must withhold up to 50 percent of his or her wages.
> Order/Notice to Withhold Income for Child Support. The Order/Notice to Withhold Income for Child Support is a federal form used for all child support orders and it is enforceable across state lines.
> Judgment. This form dissolves the marriage.
The judgment is prepared by the petitioner. It includes as attachments the MSA, the child support order, and the parenting plan.
> Notice of Entry of Judgment. The Notice of Entry of Judgment is a form establishing when the judgment, which ends the marriage, was entered into the records of the court.
> Stipulation to Establish or Modify Child Support and Order. This is the form used by parents to establish or modify the terms of child support paid by the noncustodial to the custodial parent.
> Marital Settlement Agreement. This is an agreement spells out the terms and conditions of the division and distribution of community property, alimony and it may include the spouses’ parenting plan.

Divorcing a missing spouse, one who cannot or will not be located, requires a good faith effort at locating him or her, followed by ex parte (without notice) application to the court for Service by Publication. In this regime, the Petitioner must first make a good faith (or “diligent”) search for his or her missing spouse. This search normally includes checking telephone directories in the area where both the petitioner and respondent live or lived, asking friends and relatives, checking tax records, contacting the department of motor vehicles, voter registration, etc. After a diligent but fruitless search has been made, the court approves an application to the court of Service by Publication.

This requires the completion of a form, Ex Parte Application for Publication of Summons; Declaration in Support Thereof; Memorandum of Points and Authorities as well as Order for Publication of Summons. After these have been approved, the summons can be published in a newspaper. The summons must be published once a week for four successive weeks, with a least five days between successive publications.

The trajectory of a contested divorce is difficult to predict because it is litigation, and it is adversarial. A contested divorce begins with the same filing procedure, then often one of the parties will request an Order to Show Cause Hearing, after which the judge will rule on temporary support, child custody and restraining orders.

The parties then may engage in Discovery, which becomes far more invasive and complicated than the voluntary disclosures made in an uncontested action. In both uncontested and contested actions, the Preliminary Declaration of Disclosure is used as well as the disclosure of current expenses and incomes.

After Discovery, the parties and the lawyers attempt to settle the case through negotiations. If they reach an accord, one of the lawyers prepares a MSA based on California’s community property divorce law. This is a contract signed by the parties and their lawyers. But if this fails, the parties go to trial.

California Simplified Divorce Procedures

A marriage of 5 years or less may be dissolved by summary action. A Joint Petition for Summary Dissolution of Marriage may be filed if:

a) either spouse has met the residency requirement for a standard dissolution of marriage;
b) there is an irremediable breakdown of the marriage due to irreconcilable differences;
c) there are no children born of or adopted during the marriage;
d) the wife is not pregnant;
e) neither spouse owns any real estate;
f) there are no unpaid debts exceeding $4,000 incurred during the marriage;
g) the total value of the community property (including any deferred compensation or retirement plans but excluding cars and loans) is less than $25,000;
h) neither spouse has separate property (excluding cars and loans) exceeding $25,000 in value [On January 1 of every odd-numbered year, the dollar amounts in this section may be revised];
i) the spouses have signed an agreement regarding the division of their assets and the assumption of their liabilities and have signed any documents or given proof of any transfers necessary to effectuate the agreement;
j) the spouses waive any rights to spousal support [maintenance];
k) the spouses waive their right to appeal the dissolution of marriage and their right to a new trial upon entry of the final dissolution of marriage judgment;
l) the spouses have read and understand the summary dissolution of marriage brochure available from the county clerk; and m) both spouses desire that the marriage be dissolved. Official mandatory and optional forms for filing for a Summary Dissolution of Marriage are available from the County Clerk of any county.

[Annotated California Code; Sections 2400 and 2401, and Judicial Council Forms].

Each state has its own unique filing procedure. When filing for dissolution of marriage in California, you must adhere to the strict filing guidelines and prepare and submit the appropriate mandatory dissolution documents to the county court. You will discover that some documents may be provided by the California Legal System and others must be constructed on a case-by-case basis containing certain information and criteria to adhere to the California Laws and the filing requirements.

California Property Division Factors

In California, the property and debt issues are typically settled between the parties by a signed Marital Settlement Agreement or the property award is actually order and decreed by the Superior Court within the Final Judgment of Dissolution of Marriage.

California is considered a “Community Property” state. Community property is defined as all property and debt that was acquired from the date of marriage until the marital cut-off date. The community assets will be split equally by the Superior Court if the spouses are unable to reach an agreement.

When dividing property for a dissolution of marriage or legal separation of the parties, property acquired by the parties during marriage in joint form, including property held in tenancy in common, joint tenancy, or tenancy by the entirety, or as community property, is presumed to be community property. This presumption is a presumption affecting the burden of proof and may be rebutted by either of the following:

a) A clear statement in the deed or other documentary evidence of title by which the property is acquired that the property is separate property and not community property;
b) Proof that the parties have made a written agreement that the property is separate property.

When economic situations warrant, the court may award an asset of the community estate to one party on such conditions as the court deems proper to effect a substantially equal division of the community estate.

The court may also award, from a party’s share, the amount the court determines to have been deliberately misappropriated by the party to the exclusion of the interest of the other party in the community estate.

Debts accumulated after the date of separation are treated as follows:

a) Debts incurred by either spouse for the common necessaries of life of either spouse or the necessaries of life of the children of the marriage for whom support may be ordered, in the absence of a court order or written agreement for support or for the payment of these debts, shall be confirmed to either spouse according to the parties’ respective needs and abilities to pay at the time the debt was incurred;
b) Debts incurred by either spouse for nonnecessaries of that spouse or children of the marriage for whom support may be ordered shall be confirmed without offset to the spouse who incurred the debt.

(California Code – Sections: 2501, 2581, 2601, 2602, 2621, 2623, 2625, 2641)

Since California is a “Community Property” state, all marital property will be divided in a 50-50 fashion according to the court unless agreed to otherwise by the divorcing spouses. This means that everything that is considered “up for grabs” in the dissolution will be distributed equally to each spouse. Obviously this does not entail splitting a car in half so to speak, but rather each spouse will be rewarded with assets of equal value.

California Spousal Support/Maintenance/Alimony Factors

In California the support payments (if any) can certainly influence how the marital property distribution is awarded, which is why it can become a very intricate part of the final outcome of any divorce. Keeping this in mind, if you and your spouse are unable to reach and agreement on this issue, the Superior Court will order support from one spouse to the other on a case-by-case basis as follows:

The court shall consider all of the following circumstances:

the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:

a) earning capacity;
b) the extent to which the supported party helped support the other party in gaining an education or maintaining a career;
c) The supporting party’s assets and ability to pay support;
d) the standard of living during the marriage;
e) The assets and separate property, of each party;
f) The length of the marriage;
g) The ability to gain employment without unduly interfering with the interests of dependent children in the custody of the party;
h) The age and health condition of the parties;
i) history of domestic violence between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party;
j) any tax consequences to each party;
k) The balance of the hardships to each party;
l) The goal that the supported party shall be self-supporting within a reasonable period of time.

(California Code – Sections: 4320, 4324, 4330)

California Child Custody Factors

In California, the court shall consider the following when making a custody decision:

A) The health, safety, and welfare of the child.

B) Any history of abuse by one parent or any other person seeking custody against any of the following:

a) Any child to whom he or she is related by blood or affinity or with whom he or she has had a caretaking relationship, no matter how temporary;
b) The other parent;
c) A parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship.

C) The nature and amount of contact with both parents.

D) The habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol by either parent.

(California Code – Sections: 3011, 3020, 3024, 3040, 3042)

In California, as with all other states, the court will always be looking out for the best interests of the children. What you want or your spouse wants is not really relevant until the court says it is. Many parents go to custody hearings not realizing that they must portray themselves as the best custodial parent rather pleading to the court that they simply deserve the children. The court would much prefer the parents to decide who should have custody, but if they can’t, the court will do it for them.

California Child Support Factors

Either parent may be ordered to pay an amount necessary for the support, maintenance, and education of the child. Child support payments may be awarded on a temporary basis during custody or child support proceedings. There is a mandatory minimum amount of child support which is determined by official forms which are available from the County Clerk of any county. These minimum payment amounts will apply unless there is a reasonable agreement between the parents providing otherwise that states that:

a) the parents state that they are fully informed of their rights regarding child support under California law;
b) that the child support amount is being agreed to without coercion or duress;
c) that both parents declare that their children’s needs will be adequately met; and
d) that the right to child support has not been assigned to the county and that no public assistance is pending. A parent may be required to provide medical insurance coverage for a child if such coverage is available at a reasonable cost.

An applicant for child support must complete and submit to the court:

a) an application for an expedited child support order;
b) an income and expense declaration from both parents;
c) a worksheet setting forth the basis of the amount of child support requested; and
d) a proposed expedited child support order.

The parent required to pay may be required to give reasonable security for the support payments. In addition, there are detailed and extensive statutory provisions in California relating to the securing of child support payments. Please consult the statutes directly if this is an important factor.

[Annotated California Code; Sections 3024, 3622, 4001, 4050, Judicial Council Forms, and California Rules of Court].

California child support is typically calculated by using a Child Support Worksheet. The worksheet will generate an appropriate California child support obligation according to each spouse’s income and other relative numeric factors such as taxes paid and retirement contributions, etc.. Once this amount is determined it is essential to take a look at any appropriate California child support deviation factors that may be applicable to the situation.

California Grandparent’s Rights

Grandparent Rights to Visitation: If parent deceased, parents and grandparents of the deceased parent get visitation if in child’s best interest. Otherwise, parents must be divorced or currently living separately and apart on a permanent or indefinite basis, one parent absent for over a month and the other parent does not know that parent’s whereabouts, one parent must join in the petition with the grandparents, or the child must not be residing with either parent. Court must also find that there is a preexisting relationship between the grandparents and the grandchild such that visitation is in the child’s best interest, and the court must balance the interest of the child in having visitation with the parents’ right to exercise their parental authority. There is a rebuttable presumption that visitation is not in the best interest of the child if both parents agree that the grandparent should notbe granted visitation. Farrdly Code, Section 3100 et seq. (Family Code §3100 et seq.)

When Adoption Occurs: Natural grandparents may still get visitation.

Child Custody Statutes: Factors:

a) child’s preference (if child is old enough);
b) desire and ability of each parent to allow relationship with other parent; and
c) child’s health, safety and welfare. Family Code § 3020-3424.

Parents May Choose: Yes

California Military Divorce Laws

A California military divorce creates several unique issues as compared to a typical civilian divorce, which is why specific state and federal laws and rules will apply.

Military Protection From California Divorce Proceedings

There are laws set up to protect active duty military members against being held in “default” from failing to respond to a divorce action. These laws were enacted to protect active military from being divorced without knowing it.

Under the Soldiers and Sailors Civil Relief Act, 50 UCS section 521 and in the discretion of the local California court, the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter (This is typically the case when the active member is serving in a war). Also, this right to have the divorce proceedings postponed can be waived by any active duty member should he or she wish to get the divorce.

Serving an Active Military Spouse

The active duty spouse must be personally served with a summons and a copy of the divorce action in order for a California court to have jurisdiction over the active military member. In an uncontested case, the active duty spouse may not have to be served as long as he or she signs and files a waiver affidavit acknowledging the divorce action.

Residency and Filing Requirements

The typical military divorce filing requirements are as follows:

a) You or your spouse must reside in California
b) You or your spouse must be stationed in California

Grounds for California Military Divorce

The grounds for a military divorce in California are the same as a civilian divorce.

Dividing the  Property

Along with the normal California property division laws, the federal government has enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA) that governs how military retirement benefits are calculated and divided upon divorce. The USFSPA is the governing body that authorizes a direct payment of a portion of a military retirees pay to the former spouse.

The federal laws will not divide and distribute any of the military members retirement to the spouse unless they have been married 10 years or longer while the member has been active duty military.

Child Support and Spousal Support

In California, both child support and spousal support/alimony awards may not exceed 60% of a military member’s pay and allowances. The normal California child support guidelines, worksheets and schedules are used to determine the proper amount of child support to be paid.

California Child Support Guidelines

The California child support guidelines “at a glance” provides a quick reference to what applicable child support laws are considered and/or not considered when determining the appropriate California child support order.

California Child Support Guidelines

> Income Share Model *: YES
> Percent of Income Model *: NO
> Worksheets Available: YES
> Extraordinary Medical Expenses Add on: YES
> Childcare Add on: YES
> Secondary Education Support: NO
> UIFSA: NO

* The Income Shares Model: California child support is calculated by estimating the amount of support that would have been available to the child(ren) if the family had remained intact. This estimated amount is then divided proportionally to the parents according to each parent’s income. This is easily done by using the California child support worksheet and the estimated incomes are typically substantiated by past pay stubs or w-2s.

For example: If the father has a higher income than the mother, he would then be responsible for the greater portion of the child support obligation. Conversely, if the father has a lower income than the mother, he would then be responsible for the smaller portion of the child support obligation.

As a reminder, the child support obligation can manifest itself differently between a custodial and a noncustodial parent.

For example: It is not common for a custodial parent to be paying support to a non-custodial parent.

California Child Support Definitions

DEFINITIONS:

ANNUAL GROSS INCOME:

1) The annual gross income of each parent means income from whatever source derived, except as specified in subdivision (c) and includes, but is not limited to, the following:

a) Income such as commissions, salaries, royalties, wages, bonuses, rents, dividends, pensions, interest, trust income, annuities, workers’ compensation benefits, unemployment insurance benefits, disability
insurance benefits, social security benefits, and spousal support actually received from a person not a party to the proceeding to establish a child support order under this article.

b) Income from the proprietorship of a business, such as gross receipts from the business reduced by expenditures required for the operation of the business.

c) In the discretion of the court, employee benefits or self-employment benefits, taking into consideration the benefit to the employee, any corresponding reduction in living expenses, and other relevant facts.

2) The court may, in its discretion, consider the earning capacity of a parent in lieu of the parent’s income, consistent with the best interests of the children.

3) Annual gross income does not include any income derived from child support payments actually received, and income derived from any public assistance program, eligibility for which is based on a determination of need. Child support received by a party for children from another relationship shall not be included as part of that party’s gross or net income.

ANNUAL NET DISPOSABLE INCOME:

The annual net disposable income of each parent shall be computed by deducting from his or her annual gross income the actual amounts attributable to the following items or other permitted items.

a) The state and federal income tax liability resulting from the parties’ taxable income. Federal and state income tax deductions shall bear an accurate relationship to the tax status of the parties (that is, single, married, married filing separately, or head of household) and number of dependents. State and federal income taxes shall be those actually payable (not necessarily current withholding) after considering appropriate filing status, all available exclusions, deductions, and credits. Unless the parties stipulate otherwise, the tax effects of spousal support shall not be considered in determining the net disposable income of the parties for determining child support, but shall be considered in determining spousal support.

b) Deductions attributed to the employee’s contribution or the self-employed worker’s contribution pursuant to the Federal Insurance Contributions Act (FICA), or an amount not to exceed that allowed under FICA for persons not subject to FICA, provided that the deducted amount is used to secure retirement or disability benefits for the parent.

c) Deductions for mandatory union dues and retirement benefits, provided that they are required as a condition of employment.

d) Deductions for health insurance or health plan premiums for the parent and for any children the parent has an obligation to support and deductions for state disability insurance premiums.

e) Any child or spousal support actually being paid by the parent pursuant to a court order, to or for the benefit of any person who is not a subject of the order to be established by the court. In the absence of a court order, any child support actually being paid, not to exceed the amount established by the guideline, for natural or adopted children of the parent not residing in that parent’s home, who are not the subject of the order to be established by the court, and of whom the parent has a duty of support. Unless the parent proves payment of the support, no deduction shall be allowed under this subdivision.

f) Job-related expenses, if allowed by the court after consideration of whether the expenses are necessary, the benefit to the employee, and any other relevant facts.

g) A deduction for hardship.

MONTHLY NET DISPOSABLE INCOME:

The monthly net disposable income shall be computed by dividing the annual net disposable income by 12.

In all cases in which the net disposable income per month of the obligor is less than one thousand dollars ($1,000), the court shall rule on whether a low-income adjustment shall be made. The ruling shall be based on the facts presented to the court, the principles provided in Section 4053, and the impact of the contemplated adjustment on the respective net incomes of the obligor and the obligee. Where the court has ruled that a low-income adjustment shall be made, the child support amount otherwise determined under this section shall be reduced by an amount that is no greater than the amount calculated by multiplying the child support amount otherwise determined under this section by a fraction, the numerator of which is 1,000 minus the obligor’s net disposable income per month, and the denominator of which is 1,000. If a low-income adjustment is allowed, the court shall state the reasons supporting the adjustment in writing or on the record and shall document the amount of the adjustment and the underlying fact and circumstances.

California Dissolution of Marriage Definitions

This collection of definitions will help clarify some unique characteristics to the California Dissolution of Marriage laws, process and paperwork which is filed with the court.

Filing Party Title:
Petitioner

The spouse who will initiate the Dissolution of Marriage by filing the required paperwork with the court.

Non-Filing Party Title:
Petitioner

The spouse who does not initiate the Dissolution of Marriage with the court.

Court Name:
Superior Court of California, County of ___________.

The proper name of the court in which a Dissolution of Marriage is filed in the state of California. Each jurisdictional court typically has a domestic relations or a family law department or division.

The state run office devoted to enforcing existing child support orders and collecting any past due child support.

Document Introduction:
In Re the Marriage of:

The lead-in verbiage used in the legal caption or header of the documents filed with the court. The introduction typically prefaces both spouse’s names.

Initial Dissolution of Marriage Document:
Petition for Dissolution of Marriage

The title and name of the legal document that will initiate the California Dissolution of Marriage process. The filing spouse is also required to provide the non-filing spouse a copy of this document.

Final Dissolution of Marriage Document:
Final Judgment of Dissolution of Marriage

The title and name of the legal document that will finalize the California Dissolution of Marriage process. This document will be signed by the judge, master, or referee of the court to declare your marriage officially terminated.

Clerk’s Office Name:
County Clerk’s Office of the Superior Court

The office of the clerk that will facilitate the Dissolution of Marriage process. This is the title you would address letters to or ask for when contacting the courthouse.

Legal Separation:

The grounds for obtaining a legal separation in California are: a) irreconcilable differences; and b) incurable insanity. A spouse filing for legal separation must have been a resident of the state for 6 months and a resident of the county for 3 months where the action for legal separation is filed for.

[Annotated California Code; Sections 2310 and 2320].

Property Distribution:
Community Property

The applicable California law that will dictate how property and debt is to be divided upon Dissolution of Marriage.

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