California Family Law FAQ

What is divorce?

A divorce is defined as the dissolution of marriage. California is what we call a "No-Fault" Divorce state. This means that the Court does not need to find fault with either party as a prerequisite to the granting of a divorce. The most common ground for dissolution of marriage is "irreconcilable differences." Thus, the only prerequisite to obtaining a divorce in California is that irreconcilable differences have arisen between the spouses which have led to the irremediable breakdown of the marriage.

The process of Dissolution of Marriage is commenced by the filing of the Petition for Dissolution of Marriage, along with the Summons, in the Superior Court of the County where the parties reside. The spouse who files the Petition is the "Petitioner." The other spouse then becomes the "Respondent," and must respond to the Petition for Dissolution of Marriage within 30 days of being served with the Petition and Summons, by filing a Response in the Superior Court.

A dissolution of marriage action will ultimately result in a "Judgment of Dissolution of Marriage" granted by the Superior Court. The Judgment will contain orders regarding all issues which have arisen in the particular dissolution action, such as property division, division of debts, child custody and visitation, child support, spousal support, etc. If the parties are able, at any time during the dissolution action, to reach an agreement with respect to the resolution of the issues which have arisen in their action, they then execute a Stipulated Judgment of Dissolution, submit it to the Court for the Judge’s signature and entry, and do not need to appear in Court. If the parties are unable to reach an agreement, then the Court will resolve the parties’ differences at a Trial, and then will issue a Court Judgment of Dissolution of Marriage.

What is a Legal Separation?

A separation is defined as the termination of legal cohabitation. A separation usually takes place when the parties physically separate, such as one party moving out of the family residence, or out of the marital bedroom. Once this physical separation has occurred, the parties are deemed to be separated. However, if the parties choose to become "legally separated," this can be accomplished by the filing of an action for Legal Separation.

The process of Legal Separation is commenced by the filing of a Petition for Legal Separation. This Petition is the same form as the Petition for Dissolution of Marriage, and is filed along with the Summons, in the Superior Court.

The process of Dissolution of Marriage and the process of Legal Separation are very similar in terms of the legal procedure, costs, etc. The major difference between the two actions is that, at the conclusion of the Dissolution of Marriage action, the parties will be declared divorced, whereas at the conclusion of the Legal Separation action, the parties will remain married to each other. The other major difference between the two actions is that the consent of the Respondent is not required to obtain a Dissolution of Marriage, whereas the consent of the Respondent is required to obtain a Legal Separation.

What is an annulment?

An annulment is defined as the legal declaration that a marriage was never valid. In this instance, the marriage is treated as though it never occurred. In California, the grounds for an annulment are as follows: incestuous marriage; bigamous marriage; one of the parties was under the age of 18 when the marriage was entered into; unsound mind; fraud; force; physical incapacity.

The process of Annulment is commenced by the filing of a Petition for Nullity of Marriage. This Petition is the same form as the Petition for Dissolution of Marriage, and is filed along with the Summons, in the Superior Court.

What is paternity?

Paternity is defined as "the state or condition of a father". This type of action arises when the parties, who were never legally married to each other, are the parents of a child.

Either the mother or the father of the child may file the Paternity action, to establish parentage of a child. The Court, in a Paternity action, will decide the issues of paternity, child custody and visitation, and child support.

The Paternity action is commenced by the filing of a Petition to Establish Parental Relationship, along with the Summons, in the Superior Court.

A Paternity action will ultimately result in a "Judgment of Paternity" granted by the Superior Court. The Judgment will contain orders regarding paternity, child custody and visitation, and child support. If the parties are able, at any time during the action, to reach an agreement with respect to the resolution of the issues which have arisen in their action, they then execute a Stipulated Judgment of Paternity, submit it to the Court for the Judge’s signature and entry, and do not need to appear in Court. If the parties are unable to reach an agreement, then the Court will resolve the parties’ differences at a Trial, and then will issue a Court Judgment of Paternity.

What is child custody?

There are two types of child custody: legal custody and physical custody.

Legal custody refers to the ability to make decisions concerning the health, education and welfare of a minor child. Physical custody refers to the physical living arrangement of a child. If the child resides with one parent and is under that parent's supervision for most of the time, that parent is deemed to have primary physical custody, subject to visitations by the other parent. However, if the child resides for significant amounts of time with both parents in their respective homes, both parents are deemed to have physical custody, and the applicable legal term would be "joint physical custody." There can be a variety of custody arrangements upon separation of the parents. For example, parents can share legal custody of a child, whereby both participate equally in the important decisions in the child's life, and those parents can share physical custody, where the child's resides 60% of the time with one parent, and 40% of the time with another.