Divorce proceedings bring overwhelming experiences, including uncertainty, grief, frustration, and fear. As a wife undergoing a possible or imminent divorce from your husband, you have rights and protections under California law. By knowing these rights, you will be better prepared to go through the challenges of divorce with confidence and clarity.
In California, the divorce process is governed primarily by the California Family Code, which outlines both spouses' legal rights and responsibilities. Case law and local court rules may also apply. This article will help you learn about your rights during the divorce process in California and guide you at every step.
An Overview of Your Rights at the Initial Stages
Rights You Are Entitled To After Filing and Service
When your husband (the Petitioner) initiates a divorce by submitting a divorce petition (Form FL-100) and a summons (Form FL-110) in the California Superior Court, you (the Respondent) have the right to be formally notified of the legal action through proper legal service.
You must file your response within 30 days of being served with the divorce petition and summons. If you fail to reply within 30 days, the court can make a default judgment against you in your absence. Reviewing and responding to these documents is critical because they directly affect your legal rights.
Consulting a knowledgeable family law attorney promptly can help you go through this process effectively. Since divorce cases are often both legally and emotionally complex, having a family law attorney is essential to going through the process effectively.
The consultation with an attorney will help you understand the specifics of California divorce laws, review your case, provide recommendations on appropriate legal strategies, and ensure that all necessary forms, including your response, are prepared and submitted in time. Additional free resources, such as your county court’s Self-Help Center, can support family law facilitators.
Mandatory Financial Disclosures
After initiating a divorce, both spouses are required to exchange Preliminary Declarations of Disclosure (Form FL-140). Your husband must serve their disclosure within 60 days of filing the petition or within 60 days of filing the response.
This mandatory exchange requires full disclosure of your assets, debts, income, and expenses. The goal is to promote transparency and facilitate a fair settlement regarding property and support matters. Intentionally concealing assets or providing false information during divorce can lead to legal penalties, including sanctions, fines, or unfavorable judgments.
Emergency Protection and Temporary Orders
If you are in immediate danger due to domestic violence or you suspect your husband may be trying to deplete marital assets or take children without your consent, you have the right to request immediate temporary protection by way of ex parte orders.
To prevent imminent harm or financial misconduct, the court may issue these orders expeditiously, sometimes without prior notice. To start this process, you must file Form FL-300, checking the “Temporary Emergency Orders” box.
Immediate relief can be granted on the same day and sustained until the next court hearing. Call a legal professional immediately in an emergency and ensure the court has valid documents to back up your claims.
Temporary Rights Pending Divorce
During the period between the filing of divorce papers and the issuance of the final judgment, the court can make temporary orders under what are referred to as pendente lite arrangements. Temporary orders provide stability and support to spouses and their children until the final divorce judgment is issued. The court’s pendente lite orders usually govern critical elements of everyday life and child care arrangements.
Temporary Custody and Visitation of Children
At this stage, one of the key issues is determining temporary custody and visitation arrangements for any children involved. Temporary orders from the court can specify how the children will live primarily (physical custody) and how visitation or parenting time will be arranged with the non-custodial parent.
The court prioritizes the child’s best interests regardless of when custody is addressed. The court considers factors such as the child's age and health, emotional state, and the ability of each parent to provide a safe and stable home. In most areas, the court can also force parents to attend mandatory mediation to reach a temporary agreement before a judge makes final orders. Clear temporary custody agreements ensure your children’s stability during the pending divorce proceedings.
Right to Temporary Child Support
Another major temporary right is to access child support from your husband to support your children’s expenses during the divorce proceedings. California law mandates that parents financially support their children, and the court can order the higher-income spouse or the custodial parent to provide this support.
Temporary child support amounts are generally calculated by a temporary standard formula based on both spouses’ earnings, the frequency of care of the children by each parent, and any costs associated with the children’s health and education. You can ask for temporary child support from the court as soon as you file your response to the divorce petition or at any time if the situation calls for it.
Temporary Spousal Support
If your financial situation depends on your husband or you earn significantly less, you may be eligible to receive temporary spousal support (sometimes called alimony or maintenance) during your divorce case. The court acknowledges that separation can place financial strain on a spouse who has primarily managed household duties or earns a lower income.
Temporary spousal support aims to help maintain the standard of living established during the marriage, as much as possible, until the divorce is finalized. The court calculates the amount using a standard formula based on your needs and your husband’s financial capacity.
Some courts in California use guideline formulas to calculate temporary spousal support, which may consider factors like the net monthly incomes of both spouses. The specific formula can vary by county and case.
You Have the Right to Request a Temporary Restraining Order (TRO)
In case you are experiencing domestic violence from your husband, you are entitled to seek a Temporary Restraining Order (TRO) as part of your pending family law case. A TRO is a court order that requires your husband to avoid contact with you, your children, their everyday living or working areas, and other specified places.
A serious and immediate threat of harm may result in the court quickly issuing protective orders to ensure your safety. Also, if a full hearing is held, a TRO can be converted into a Domestic Violence Restraining Order, offering longer-term protection. You and your children’s safety is a priority, and the legal system is prepared to provide measures to help you and your children stay safe in such situations.
Right to Protect Marital Assets and Obtain Legal Assistance
Your participation is crucial in equitably dividing marital assets and debts during divorce. If you are concerned that your husband might take or hide marital assets before the division, you can file with the court for a temporary restraining order, commonly known as an asset freeze or Automatic Temporary Restraining Order (ATRO). Such an order prohibits him from transferring, selling, or mortgaging any jointly owned or community property without formal court approval.
Right to Request Legal Fee Assistance
If you cannot pay for a lawyer because of financial difficulties and the divorce expenses, you have the right to request the court to order your husband, who might be in a better financial position, to pay your legal fees and expenses temporarily. This ensures that both parties obtain the required legal assistance regardless of their economic status.
Preparing for Final Legal Resolution Through a Judgment of Dissolution
The Decree of Dissolution is the final court order formally ending California's divorce process. In the Decree of Dissolution, the court makes the final settlement terms explicit, thus protecting your rights about marital property division, long-term financial support, and child support and custody.
Division of Community Property
California law mandates an equal division of community property acquired during the marriage, regardless of individual contributions.
Regarding community property division, California statutes mandate that any property and debts acquired during the marriage be divided equally, usually a 50/50 split. Community property must be equally divided, regardless of whose name appears on the title or who earned the income used to acquire the property.
Separate Property
Separate property assets or debts acquired before marriage or received as gifts or inheritances during the marriage are typically excluded from division, provided they haven’t been commingled with community property. In California, community property and debts acquired during the marriage are generally divided equally between spouses, though specific circumstances can affect the final division. Assets under this rule include the family home, cars, savings accounts, retirement savings, and any other property or funds you acquired during your marriage.
Right to Long-Term Spousal Support
The court may sometimes determine that one spouse must pay the other long-term spousal support (alimony/maintenance) after divorce. Establishing the necessity of and the details of long-term spousal support is regulated by considering several factors outlined in California Family Code 4320.
These factors include the following:
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The length of the marriage
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Financial prospects of each spouse, level of education, and work experience
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The age and physical health of the two parties involved
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The standard of living the couple enjoyed during their marriage
In California, a general rule is that:
For marriages lasting less than ten years, courts often consider awarding spousal support for a duration approximately equal to half the length of the marriage. However, this can vary based on specific circumstances.
If a marriage is ten years or longer, the length of spousal support is left to the judge’s discretion, to end once the supported spouse becomes self-sufficient.
Spousal support generally ends upon the death of either spouse or the supported spouse’s remarriage, unless the spouses have agreed otherwise.
Additional Considerations for Child Custody and Support
The judgment of dissolution will also finalize custody and child support arrangements for any children you share with your husband. Like temporary orders, the child's best interests are the principle upon which these decisions are based.
The judge will evaluate several factors to determine the most appropriate custody arrangement, which may include:
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Sole custody to one parent
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Joint custody is where both parents share decision-making responsibilities and parenting time.
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The non-custodial parent is typically granted scheduled time to spend with the children.
Even if one parent is granted primary physical custody, the other parent usually retains scheduled parenting time to preserve their bond with the child.
Child support is determined using a standard formula that considers factors such as:
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Both parents’ incomes
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The percentage of time each parent contributes as primary care for the children.
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The cost of the children’s medical and educational fees
Both parents have a legal obligation to provide for their children financially and to provide them with general welfare.
Post-Judgment Rights
After the divorce decree has been finalized, you have certain legal rights. If your ex-husband fails to comply with the terms of the final judgment, such as failing to pay the required support or failing to follow the custody or visitation plans, you can file a petition with the court to enforce the orders.
Right to Enforce Court Orders
If your ex-husband fails to comply with any part of the divorce judgment, you can petition the court for enforcement, which may involve various legal remedies depending on the specific issue. To force compliance with court orders, the court may resort to such methods as:
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Wage garnishment for unpaid support
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Placing liens on property
You may also ask the court to find your ex-spouse in contempt if they deliberately disobey court orders. Providing evidence of compliance by having accurate records and following the advice of your attorney can help strengthen your attempt to enforce the court orders.
Right to Modify Court Orders
Depending on the circumstances, you may also have grounds to petition for changes to your current court orders, especially those relating to:
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Child custody
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Child support
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Spousal support
A change may be requested if you demonstrate that your circumstances have changed significantly since the original order. Examples include:
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A significant change in the financial stability of either of the two individuals.
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Change in the child's needs or sharing care responsibilities between the parents.
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A parent relocating
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A significant financial change that may justify modifying spousal support.
If you believe your case fulfills the requirements for a modification, you should contact your attorney to discuss possible options and initiate the process.
Can I Stop the Divorce If I Disagree? Understanding the Legal Reality
In the United States, “no-fault” divorce laws mean that if one spouse wants a divorce, the other generally cannot prevent it. This applies in all 50 states, including California. A spouse can request a divorce without proving any wrongdoing by the other spouse.
Simply stating that the marriage is “irretrievably broken” or that there are “irreconcilable differences” is usually sufficient. In some states, while a spouse cannot object to the divorce, they can challenge specific terms, such as property division, spousal support, or child custody.
California has a mandatory six-month waiting period after serving the divorce papers. This time allows both spouses to prepare for the legal process and, if desired, consider reconciliation. However, the divorce can still proceed once the waiting period is over, even if only one spouse wants it to move forward.
What You Can Control
Feeling powerless is common when you cannot prevent a divorce. Nevertheless, it is essential to note this difference:
There may be nothing you can do to stop the divorce from happening. However, it is in your hands to determine how the divorce will end.
You can influence decisions about:
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Division of property and assets
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Child custody and visitation
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Child and spousal support
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The date and circumstances under which the divorce is finalized.
Participation in the proceedings, instead of withdrawal, provides you with the most favorable resolution of your rights and future well-being.
The Importance of Engagement in the Divorce Process
The risks of not being involved in the divorce process clarify why meaningful participation is essential. Although you might not be able to stop the divorce, staying engaged helps you to:
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Protect Your Rights
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Ensure that the divorce agreement accounts for your rights concerning property, support, and children.
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Influence the Outcome
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Provide your input, submit relevant information, and make recommendations on settling disagreements, contributing to the details of your post-divorce life.
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Negotiate Fair Terms
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Be part of the resolution process by participating in talks or mediation to ensure a settlement that serves your needs and facilitates your envisioned future.
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Maintain Control Over the Narrative
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Take an active role in shaping your future so that important decisions are not made without your input.
Find a Family Law Attorney Near Me
The divorce process in California can be intimidating, but understanding your legal rights can make a significant difference. Since California is a community property jurisdiction, things earned or gained during the marriage are split equally between the spouses. If your husband wants a divorce, know that you have several rights, such as requesting a TRO, temporary child support, and temporary spousal support. You want to contact a family law attorney to fight for these rights. Need support when facing an imminent divorce? Contact the San Diego Divorce Attorney at 858-529-5150 for reliable assistance in your divorce.
