California Family Law: FAQs

Bremer Whyte Brown & O’Meara

Brief responses to the questions that California families most frequently ask.

Family law cases are intimate, time-sensitive, and full of choices that could impact your family over the years. The following questions address the issues our clients most frequently ask about. For example, divorce processes, property division, custody, childcare support, prenuptial agreements, and restraining orders, and provide answers based on California law.

Each family’s case is unique, and therefore, this page should be taken as a guide, not as law.

1. How long must I have lived in California to be able to file for a divorce?

In California, at least one spouse must have resided in California for at least 6 months and in the county where the divorce is filed for at least three months before filing a Petition for Dissolution of Marriage. (Fam. Code §2320.) These residency requirements apply to the divorce actions, but not to legal separations. Accordingly, if you do not meet the residency requirements for divorce, you may still file for legal separation and later amend your petition to request dissolution once the residency requirements are satisfied.  California Service members are usually able to count their time on a California base as part of the residency requirement.

2. How long does a divorce take in California?

Under California Family Code §2339, a divorce cannot be finalized until at least six months after the responding spouse has been served or has formally appeared in the case. This six-month period is commonly referred to as the “cooling off” period. For uncontested divorces, where the parties agree on all terms, the process can typically be completed within that six-month timeframe. However, contested divorces involving disputes over child custody, support, or property division commonly take between 12-24 months, and sometimes longer depending on the complexity of the issues and the court’s calendar. Cases in larger counties, such as Los Angeles, Orange, San Diego, or Riverside may take longer due to crowded court dockets. As of January 1, 2026, California law also allows joint petitions, which streamlines the process for couples who agree on terms and do not require formal service of process. 

3. Do I have to have a reason to divorce in California?

No. California is a no-fault divorce state. Dissolution can only be based on legal grounds, such as irreconcilable differences or permanent legal incapacity to make decisions (Cal. Fam. Code §2310). You do not need to demonstrate infidelity, abuse, or any other misconduct, and the court will not consider such misconduct in the division of property or support. Even if the other spouse does not want it, one can still file for divorce. Fault-based behavior may come into play in limited cases, such as a history of domestic violence that impacts custody. Financial malfeasance impacts property, but does not alter the fundamental right to terminate the marriage.

4. What’s the difference between divorce, legal separation, and annulment?

Divorce (dissolution) terminates the marriage and allows the parties to get remarried. A legal separation separates finances, property, and parenting duties. However, it does not end the marriage legally—handy when religious beliefs, immigration status, or health insurance make divorce unacceptable, or when you’re not yet eligible to be a resident. An annulment is a legal procedure that annuls a marriage as though it never happened. Yet, it can only be granted under limited conditions, including bigamy, incest, fraud, force, unsound mind, or a party who was underage at the time. The majority of marriages are not subject to annulment. A family law lawyer may assist in determining the best course of action.

5. California divorce: How is property divided?

California is a community property state, which means that, in general, assets and debts acquired by either spouse during the marriage are presumed to belong equally to both parties. (Fam. Code §760). Community property may include earnings, retirement accounts, real estate, business interests, investment accounts and debts incurred during the marriage. 

Separate property generally includes assets owned by either spouse before marriage, as well as gifts and inheritances received by one spouse individually during the marriage. In many cases, however, disputes arise regarding whether assets have been commingled or whether the community acquired an interest in separate property during the marriage.  

Although California law generally requires an equal division of community property, this does not necessarily mean that every asset is physically divided in half. Rather, the goal is typically for each spouse to receive assets and debts of equal net value. This is often accomplished through negotiated trade-offs or equalization payments. For example, one spouse may retain the family home while the other receives a larger share of retirement or investment accounts. In more complex cases involving businesses, stock options, retirement accounts, or mixed community and separate property claims, additional tracing, appraisals, or forensic accounting analyses may be necessary to determine the proper division. 

6. What becomes of our house when we divorce in California?

When a married couple divorces in California, what happens to the family home depends on whether the property is characterized as community property, separate property, or a combination of both.

If the home is community property, the parties generally have several options:

1. Sell the home and divide the net proceeds equally
2. One spouse may buy out the other spouse’s interest and retain the property
3. The parties may agree, or the court may order, a deferred sale of the home—often to provide stability for minor children until they finish school or reach a certain age. These arrangements are commonly referred to as “Duke orders.”

If one spouse purchased the home before marriage, the analysis can become more complicated. Even when a residence began as one spouse’s separate property, the community may acquire an interest in the property if community funds were used during the marriage to pay down the mortgage principal or fund improvements. In those situations, the community may have a reimbursement or proportional equity claim under the principles established in Marriage of Moore and Marriage of Marsden, commonly referred to as “Moore/Marsden” claims.

A Moore/Marsden analysis typically examines:

• The amount of mortgage principal reduced with community funds
• The value of improvements paid for during the marriage
• The appreciation in the property during the marriage
• The separate property contribution made before marriage or after separation

Because family residences often involve both separate and community property interests, determining each party’s share can require a detailed tracing and reimbursement analysis, and this is where senior family law counsel can be most helpful.

7. Do we have prenuptial agreements in California?

Yes, California law recognizes and enforces prenuptial agreement (“prenups”) when they are properly drafted and executed in compliance with California law. Prenuptial agreements are governed by California’s Uniform Premarital Agreement Act. (Cal. Fam. Code §§1610–1617).To  be enforceable, a prenup generally must be entered into voluntarily and supported by full and fair disclosure of each party’s assets, debts, income, and financial obligations. California law also requires that the final version of the agreement be presented to the party signing it at least seven calendar days before execution to reduce undue pressure or coercion.

Additional protections apply to provisions regarding spousal support. A spousal support waiver may not be enforceable unless the party waiving support was represented by independent legal counsel at the time the agreement was signed. Courts also may refuse to enforce provisions that are unconscionable or otherwise contrary to public policy. 

Importantly, prenuptial agreements cannot predetermine child custody or child support. Those issues are always decided by the court based on the child’s best interests at the time of separation or divorce.

California also recognizes postnuptial agreements entered into after marriage, although those agreements are subject to heightened fiduciary duties and closer judicial scrutiny because spouses owe one another the highest duties of good faith and fair dealing.

8. What’s the difference between legal custody and physical custody?

Legal custody is the right to make significant decisions on behalf of a child—such as schooling, medical care, religion, mental health treatment, and extracurriculars. Physical custody is the day-to-day living of the child. Both legal and physical custody may be awarded jointly or solely. In many California cases, courts favor joint legal custody so both parents remain involved in major decisions affecting the child, unless joint decision-making would not be in the child’s best interests. 

Common parenting schedules include week‑on/week‑off (the child spends one week with each parent, alternating), a 2‑2‑3 schedule (the child spends two days with one parent, two with the other, then a three‑day weekend, and then alternates), and alternating weekends (one parent has the child every other weekend). Alternatively, it can be primarily with one parent, with visitation with the other. Joint legal custody does not mean equal parenting time, and joint physical custody does not mean a 50/50 split—it means that each parent has significant periods of time with the child.

9. What is the decision of a court in California regarding child custody?

The standard is the child’s best interests, set out in California Family Code §3011. When deciding on custody, courts look at factors such as:

• The child’s health, safety, and overall welfare
• Any history of domestic violence, child abuse, or substance abuse by either parent
• The type and amount of contact the child has with each parent
• The stability and suitability of each parent’s home environment

California law clearly prohibits courts from favoring any parent based on gender, sexual orientation, gender identity, marital status, religion, or income (Cal. Fam. Code §3040). In a custody dispute, most counties require parents to undergo Family Court Services mediation before a judge will make a decision. If parents reach an agreement there, the court is likely to adopt it as the order. In recommending counties, such as San Diego County and Riverside County, if the parties do not reach an agreement during FCS mediation, the mediator or investigator will still prepare a written recommendation for the judge regarding custody and visitation. These recommendations are often given substantial weight by the court when making custody determinations. For that reason, proper preparation for FCS mediation is crucial. 

10. Does my child have a choice on which parent to live with?

Not independently, but a child’s preference may be an important factor in custody and visitation decisions.  Under California Family Code §3042, a child who is 14 years of age or older is entitled to be heard by the court regarding custody and visitation, except when the judge determines that it would not be in the child’s best interest. Younger children can also be heard, provided the court believes they are of sufficient age and maturity to do so. However, a child does not have sole authority to decide which parent they will live with. The child’s wishes are just one factor among many; the judge ultimately decides what is in the child’s best interests. Children are not typically required to testify in open court. Instead, judges often receive the child’s input through Family Court Services investigation, interviews conducted in chambers, or though court appointed minors counsel. 

11. How is child support calculated in California?

In California, child support is calculated using a statewide guideline formula set out in California Family Code section 4055. The formula considers each parent’s net disposable income, the percentage of time each parent spends with the children, their tax filing status, mandatory deductions such as health insurance and union dues, and any other children that either parent is legally required to support. 

The formula is calculated with certified software such as X-Spouse—the same programs judges use. The guideline outcome is assumed to be accurate, but the courts may vary under certain conditions. Child support ends at age 18, or 19 if the child is still in full-time high school and is still unmarried. When there is a significant change in income or custodial time, either parent may request a recalculation.

12. How long does spousal support last in California?

In marriages of less than 10 years, the general rule is that spousal support is approximately half the length of the marriage. In marriages lasting 10 years or longer, or what California terms as long-duration marriages, the court usually retains jurisdiction indefinitely. That means support can be reconsidered and modified in the future, but it does not have an automatic expiration date. 

The court considers several factors under California Family Code section §4320 when setting the amount and duration of spousal support, including:

• The earning capacity of each spouse
• The standard of living established during the marriage
• Any contributions by one spouse to the education, training, or career of the other
• The ability of the supporting spouse to pay
• The age and health of both spouses
• Any history of domestic violence

Spousal support typically terminates upon the death of either party or the remarriage of the supported spouse, unless otherwise agreed in writing. Support may also be modified or terminated by further court order upon a showing of changed circumstances. 

13. Is it possible to change a custody, support, or visitation order in the future?

Yes. Custody and visitation orders may be changed when there is a significant change in circumstances that impact the child’s best interests—such as a change in a parent’s residence, a change in a parent’s working hours, safety issues, or the changing needs of a child. Child support and spousal support may be altered in the event of a material change in the income of either party or the children’s needs. A request for modification is made in the same court where the initial order was made. The current order remains in effect until a court signs a new order—informal agreements between parents are not binding in court, so it is important to formalize any change.

14. How do I get a domestic violence restraining order in California?

A Domestic Violence Restraining Order (DVRO) in California may be requested by filling a Request for a Domestic Violence Restraining Order (Form DV-100) and related forms with the family court in your county.  The filing is free, and you do not have to hire a lawyer to initiate the process. The court may grant a temporary restraining order on the same day, often before the other party is served, if it has reasonable grounds. 

A hearing for a longer-term restraining order is generally scheduled within approximately 21 days. If granted after hearing, a DVRO may remain in effect for up to five years and may later be renewed, under California Family Code §6345. 

Under California law, a spouse, former spouse, dating partner, co-parent, or close family member may seek protection through a Domestic Violence Restraining Order. A restraining order may include stay-away orders, exclusive possession of a home, custody and support orders, and an order to surrender firearms. 

Talk to Our Family Law Department.

Should you need advice on your particular case, our California family law lawyers can provide a confidential consultation at our offices. We assist clients with domestic violence, divorce, custody, support, high-asset property matters, and post-judgment modifications in a discreet and experienced manner.

Disclaimer: The information on this page is general information on California family law and is not legal advice. Reading or relying on this material does not establish an attorney-client relationship. To get counsel on your particular case, please refer to a competent California family law attorney.

Call our family lawyer in San Diego by dialing (619) 356-2308 or submitting an online contact form today.