Family Law in The USA - California Overview - 5

Family law in the United States: California: overview, Practical Law Country Q&A...
Fam ily law in the U nited States: Califor nia: over view by
Andr ea Balian, Fahi Takesh H allin , Evan I tzkowitz, Azita M osbat, Johnna K Boylan, Dena
J K r avitz, Randi Akasaki, Vazken K azandjian, N icole M Vafeades, N itasha K hann a, Jack
M cM or r ow and T M ichael Payne, H ar r is Ginsber g LLP
Country Q&A | Law stated as at 01-Nov-2020 | United States
A Q&A guide to family law in US: California.
The Q&A gives a high-level overview of key issues including jurisdiction and conflict of law; pre- and post-
nuptial agreements and matrimonial property regimes; divorce, nullity, and judicial separation; children;
cohabitation; family dispute resolution; civil partnership/same-sex marriage; etc.
This Q&A is part of the global guide to family law
This global guide is published in association with the International Academy of Family Lawyers.
Jur isdiction and conflict of law
Regulator y fr am ewor k
1. What are the primary sources of law in relation to marriage, marital breakdown and the welfare of
children and give a brief overview of which courts will have jurisdiction to hear the dispute?
Sour ces of law
The primary sources of law in California related to the dissolution of a marriage and issues relating to children in a
dissolution action are:
• The California Family Code (FC). The FC, which became operative in 1994, applies to all family law matters
in California, including divorce, property division, custody, support, and premarital agreements.
• Published case law from the California appellate courts and the California Supreme Court.
Cour t system
Jurisdiction over all proceedings lies with the Superior Court and all family law proceedings must be commenced in
the Superior Court (section 200, FC; Mar riage of Lackey (1983) 143 Cal. App. 3d 698)). There is no separate
family court in California. All proceedings are public proceedings, except in some very limited circumstances.
© 2021 Thomson Reuters. All rights reserved. 24

Jur isdiction
2. What are the main requirements for local courts to have jurisdiction in relation to divorce, property and
children proceedings?
California must have jurisdiction over the subject matter raised by the pleadings (marriage res) and the parties
(personal jurisdiction) (sections 200 and 2010, FC).
D ivor ce
To the extent that a party is only seeking to terminate his or her marital status, personal jurisdiction over both
spouses is not required if at least one spouse is domiciled in California for at least six months and notice of the
proceeding is provided to the other party (section 2320, FC; Mar riage of Gr ay (1988) 204 Cal.App. 3d 1239 1250).
Sam e-sex spouses and civil par tner s
California does not distinguish between same-sex spouses and spouses of the opposite sex.
Pr oper ty
Regarding property, a California court lacks jurisdiction to make orders that directly affect the title or interest in
real property located outside California, as it can for property located inside California. However, if it has
jurisdiction over both parties, the court can make a determination regarding the parties' respective interests in the
property located outside of California and can order the parties to execute conveyances accordingly (section 2660,
FC).
Childr en
For child custody cases, the court's ability to exercise jurisdiction is limited by:
• The Federal Parental Kidnapping Prevention Act (FPKPA).
• The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).
(Section 1738A, 28 USC; section 3400 and follow ing, FC.)
The Acts ensure that only one state has exclusive jurisdiction to make an initial custody determination and to modify
any orders. With certain exceptions, California has jurisdiction to make an initial custody determination if it is the
"home state" of the child on the date of the commencement of the action. Home state is where the child has lived in
California with a parent, or person acting as a parent, for at least six consecutive months prior to the commencement
of a child custody proceeding (sections 3402(g) and 3421, FC). I f the child is less than six months of age on the date
the action is commenced, the home state is where the child lived from birth (section 3402(g), FC).
D om icile, nationality and habitual r esidence
3. How do the concepts of domicile, nationality and habitual residence apply in relation to divorce,

financial arrangements, and children?
California courts have jurisdiction over the parties' marriage (to grant a dissolution, annulment or legal separation)
if one (or both) of the parties is domiciled within the state of California (see Question 2).
Domicile requires:
• Physical presence in the jurisdiction.
• The intent to remain in the jurisdiction indefinitely.
(Smith v Smith (1955) 45 C 2d. 235,239.)
A person may have a residence within the jurisdiction but not be domiciled in that jurisdiction. A person can have
only one domicile but several residences. I f there is a dispute about whether a person resides in the jurisdiction or
is domiciled in the jurisdiction, the parties must present evidence regarding the person's intent to remain in the
jurisdiction, such as (Mar r iage of Dick (1993) 15 CA 4th 144, 152):
• Voting registration.
• Driver's licence.
• Tax return filings.
Con flict of law
4. What procedure applies for a party applying to stay proceedings in favour of a foreign jurisdiction?
What factors do local courts take into account when determining forum issues?
Pr ocedur e
When two courts have concurrent jurisdiction over the same parties and subject matter, the California court will
determine whether to keep the case or relinquish jurisdiction to the foreign state. This issue is determined on a
case- by-case basis. Relevant considerations include:
• Comity (that is, the informal and mutual recognition of other jurisdictions).
• Prevention of multiple and vexatious litigation.
• Judicial economy.
• The interests of the forum.
• The convenience of the parties.
(Leadfor d v Leadfor d (1992) 6 CA 4th 571, 574-575.)
Subject to limited exceptions, before hearing a child custody proceeding, if the California court determines that

child custody proceedings have already commenced in another Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJEA) jurisdiction:
• I t must stay its proceedings and communicate with the other court.
• I t defers to the other jurisdiction's determination as to which court is the more appropriate forum. If that
state determines it is the more appropriate forum, the California court dismisses the custody proceedings.
(Section 3426, FC.)
A California court must "treat a foreign country as if it were a state of the United States" (section 3405(a), FC). A
prior child custody determination made in a foreign country under factual circumstances in conformity with the
UCCJEA must be enforced (section 3405(b), FC), unless the child custody law of the foreign country violates
fundamental principles of human rights (section 3405(c), FC).
However, even when jurisdiction rests with another state or country under the UCCJEA, a California court can
exercise temporary jurisdiction if the child is in California and the exercise of such jurisdiction is "necessary in an
emergency to protect the child because the child, or a sibling or parent of the child, is subjected to, or threatened
with, mistreatment or abuse" (section 3424(a), FC).
Once a California court has made a "child custody determination", that court obtains "exclusive, continuing
jurisdiction" and no other court can have jurisdiction to modify the custody order (section 3421, FC). Exclusive and
continuing jurisdiction is not indefinite and there are circumstances where California will lose such jurisdiction
and/ or where other forums may have the ability to exercise jurisdiction, such as when neither party nor child
remains in the state (sections 3421 to 3428, FC).
I n child support cases, only one state can have child support jurisdiction at any given point in time. If there is
jurisdictional conflict over a petition to establish a child support order, the state with controlling jurisdiction is
determined under the Full Faith and Credit for Child Support Orders Act (FFCCSOA) ( section 1738B, FFCCSOA, 28
USC) and the Uniform I nterstate Family Support Act (UIFSA) (section 4900 and following, UI FSA, FC).
Under UI FSA, the definition of "state" includes a foreign jurisdiction that has enacted a law or has established
procedures for issuance and enforcement of support orders that are substantially similar to the procedures under
the UIFSA (section 4901(s)(2), FC).
I n spousal support cases, the UI FSA also applies. Once a California court issues a spousal support order, it has
continuing, exclusive spousal support modification jurisdiction (section 4909(f), FC; UIFSA). Under the UI FSA, if
another appropriate state renders a spousal support order and maintains continuing jurisdiction over the order,
California can only enforce (but not modify) the order.
Factor s
The factors include
• Determining the child's home state at the time of the commencement of the proceeding.
• Whether any other forum has properly assumed jurisdiction.
• Whether there are any other factors that would warrant another forum assuming jurisdiction, for the
convenience of the parties and court.

(Sections 3421 to 3428, FC.)
Anti-suit injunctions
I t is possible to apply to a California court for an anti-suit injunction in order to prevent the other party from
continuing enforcement in a foreign jurisdiction (section 3426(c)(2), FC).
Applicable law
5. Are foreign nationals treated differently on divorce?
Foreign nationals are not treated differently to US citizens or California domiciliaries in a California divorces.
California divorce law applies equally to all. The FC, which became operative in 1994, applies to all family law
matters in California, including divorce, property division, custody, support, and premarital agreements.
Jurisdiction over family law matters rests with the Superior Court of California ( section 200, FC).
With limited exception, California courts will only apply California and US law to family law matters.
California will apply the law of a foreign jurisdiction when determining the validity of a marriage. Therefore, a
marriage contracted outside of California which complies with California's requirements for a valid marriage (section
300, FC) will still be determined to be valid if the marriage was valid in the laws of the jurisdiction in which it was
contracted (section 308, FC). Conversely, a marriage which was invalid in the jurisdiction in which it was contracted
will likewise be invalid in California (Estate of Levie (1984) 37 Cal.3d 186, 199-200).
California will also apply the law of a foreign jurisdiction in enforcement actions pursuant to the UIFSA in
determining and enforcing:
• The nature, extent, amount, and duration of current payments under a registered support order.
• The computation and payment of arrearages and accrual of interest on the arrearages under the support
order.
• The existence and satisfaction of other obligations under the support order.
(Section 5700.604, FC)
Ser vice of pr oceedings
6. What are the requirements for service of divorce, financial and children proceedings in your
jurisdiction?
Due process in California and the US requires that all parties have notice of legal proceedings against her/ him and
an opportunity to be heard.
Absent the responding party's general appearance in the action, service of the summons and petition is essent ial to
perfect personal jurisdiction over the responding party.

Without sufficient notice, the court's judgment is void and subject to being set-aside at any time.
Pr e- and post -nuptial agr eem ents and m atr im onial pr oper ty r egim es
Validity of pr e- and post-nuptial agr eem ents
7. To what extent are pre- and post-nuptial agreements binding?
The requirement s for a valid premarital agreement ent ered int o after 1 January 1986 are provided in sections 1600
to 1617 of the FC. A premarital agreement must be in writing and signed by both parties. No consideration is
required.
A pre-nuptial agreement can cover any subject, with the following exceptions:
• Child support.
• Child custody.
• I ssues that violate public policy, such as promoting divorce, raising children in a particular religion or
penalising a party for fault (that is, causing the end of the marriage).
A pre-nuptial agreement is presumed valid. The spouse challenging the agreement bears the burden of proving it is
unenforceable.
An agreement is unenforceable if, at the time of execution:
• A party did not execute the agreement voluntarily (for example, he or she was under duress, fraud or undue
influence).
• A final draft of the agreement has not been provided seven days before the agreement was signed.
• The agreement was unconscionable, and before the agreement was executed, all of the following applied:
• the party was not provided with disclosure of the other party's assets and debts;
• the party did not waive disclosure; and
• the party did not know, or could not reasonably have had knowledge of, the other party's assets and
debts.
(Section 1615, FC.)
Additional requirements apply when the party against whom enforcement is sought was not represented by an
attorney (section 1615(c), FC).
I f an agreement covers spousal support, the party against whom enforcement was sought must have been
represented by an attorney. A spousal support provision is also unenforceable if it is unconscionable at the time of
enforcement (that is, where there is a significant disparity between the spouses' incomes, assets and earning

abilities) (Mar r iage of Facter (2013) 212 Cal.App. 4th 967).
There are no sections of the FC specifying a framework for enforceability for post-nuptial agreements. Practitioners
put in place, at a minimum, the requirements for a premarital agreement. Post-nuptial agreements are subject to
the spouses' fiduciary obligations to each other (section 721(b), FC). If one spouse gains an unfair advantage, the
agreement is presumed to have been obtained by undue influence. If the post-nuptial agreement includes a
"transmutation" (that is, the changing of property from "community property" to "separate property" or vice versa),
this must be expressed in a written declaration of the party adversely effected or signed by the parties ( see Question
8).
8. Do matrimonial regimes exist in your jurisdiction and is there a default matrimonial property regime?
D efault r egim e
California does not have matrimonial regimes.
The default regime is that set out in the FC (see below ). However, parties may opt-out of this system by entering into
a pre- or post-nuptial agreement (see also Question 7). Although these agreement s often concern the same issues
(property division, spousal support), the terms and provisions are always unique.
California is a community property state (that is, there is a presumption that the default regime will be of community
property). To overcome the community property presumption, a party asserting a separate property claim has the
burden of tracing the asset to a separate property source (I n r e Mar r iage of Walrath (1998) 17 Cal.4th 907, 918; In
r e Mar riage of Mix (1975) 14 Cal. 3d 604, 611-612).
Com m unity pr oper ty. This is where property is owned by the parties jointly and equally. Property held in joint
title and/ or property acquired during the marriage is presumed by the court to be community property (sections
2580 and 2581, FC). The court is required to divide the community estate equally between the parties. I f a community
asset cannot be divided equally, then the Court has discretion to make orders necessary to effect a substantially
equitable division of the community estate (In r e Mar r iage of Br igden (1978) 80 Cal. App. 3d 380, 390).
Separ ate pr oper ty. This applies to property belonging to one of the spouses in its ent irety. Separate property
consists of assets and debts acquired by either party prior to the marriage, inherited by either part y or received by
gift (sections 770, FC). It also includes any property acquired by a party after the parties separate (section 771, FC).
The court does not have jurisdiction to make orders relating to separate property in dividing assets. Once an asset or
debt is confirmed to be a party's separate property, it must be awarded to the said party.
Pr ocedur e
The character of any property can be t ransmuted from separate property to community property or vice versa. This
can be done in a variety of ways, including:
• Using a written declaration or agreement (section 852, FC).
• Commingling (mixing) of separate and community property (such that the community and separate property
cannot be identified and separated).
9. How are foreign separation of property agreements and pre- and post-nuptial agreements treated by the

courts in your jurisdiction?
There is no statutory or caselaw on this specific issue in California. However, California has adopted the UPPA, which
has been adopted by many states in the US. Sections 1600 to 1617 of the UPPA allows parties to agree to "choice of
law" provisions.
I f the agreement has a choice of law provision, the California court may or may not accordingly enforce the law of the
selected forum as it applies to the construction of the agreement and its substantive terms. I f there is no choice of
law provision, California may or may not enforce the law of California as it applies to the construction of the
agreement and its substantive terms.
D ivor ce, nullity and judici al separ ation

D ivor ce
10. What are the grounds for divorce?
D ivor ce
California is a no-fault state. This means that a party does not need to allege fault against the other party to obtain a
divorce. I ndeed, the courts have had no jurisdiction to adjudicate fault in California since 1 January 1970.
There are two grounds for commencing a dissolution action:
• I rreconcilable differences that have caused the permanent breakdown of the marriage (section 2311, FC).
• Permanent legal incapacity to make decisions (section 2312, FC).
N ullity
A marriage is void when the marriage is:
• Incestuous (section 2200, FC).
• Bigamous or polygamous (section 2201, FC).
I n these instances the marriage is declared to have never existed.
A marriage is voidable if, at the time the marriage was entered into, any of the following existed:
The petitioner was under the age of 18 years, unless after turning 18, the petitioner freely cohabitated with the
other party as his or her spouse.
There was a prior existing marriage, but the prior spouse had been absent for at least five years and was not
known by the petitioner to be alive, or was generally reputed or believed by the petitioner to be dead.
Either party was not of sound mind, unless after coming to reason the person freely cohabitated with the
other person as his or her spouse.
Consent of either party was obtained by fraud, after having full knowledge of fraud.

Consent of either party was obtained by force, unless afterwards freely cohabitating with t he other party as
his or her spouse.
Either party was physically incapable of entering into the marriage and the incapacity continues and appears
to be incurable.
Judicial separ ation
Legal separation is an alternative to divorce when couples no longer want to live together, but do not want to end
their marriage, or are unsure that they want to end their marriage. Dissolution of the marriage or legal separation
of the parties may be based on either of the following grounds generally pleaded:
• I rreconcilable differences, which have caused the irremediable breakdown of the marriage.
• Permanent legal incapacity to make decisions.
(Section 2310, FC.)
11. What is t he procedure and timeline for divorce?
D ivor ce
A dissolution proceeding is initiated by the filing of a petition by one party.
The date of service of the petition on the respondent is important, as it commences the six-month waiting period
between the start of the dissolution and eligibility to request that the marital status of the parties be terminated and
judgment entered. I t is not possible to terminate marital status earlier than six months from the date of service of
the petition.
Following receipt of t he petition, the respondent has 30 days (unless petitioner's attorney grants additional time) in
which to file his or her responding statement to the facts. After that time, the case may be set for a court hearing.
Resolution of a case will depend on many factors, including (among other things):
The number of contested issues.
The scope of discovery.
The court's availability to move a case to trial.
For some cases, it is possible to resolve in a timely manner where there is co-operation and a binding settlement.
N ullity
An annulment (or "nullity of marriage" or "nullity of domestic partnership") is when the court determines that the
marriage or domestic partnership is not legally valid. After an annulment, it is as if the marriage or domestic
partnership never happened because it was never legal. The t imeline for adjudication will, again, depend on the scope
of discovery and the court's availability to set the matter for trial.

Judicial separ ation
Legal separation in California does not require any residency requirement s and the date of separation takes effect
immediately. Therefore, legal separation can be completed prior to the six month "minimum time frame" for divorce
(see above, Divor ce). However, a final judgment of legal separation can take longer if the parties are unable to reach
a mutual agreement in resolving support, custody and/ or dividing the community assets and debts. As with a divorce,
resolution of a case will depend on (among other things):
• The number of contested issues.
• The scope of discovery.
• The court's availability to set the matter for trial.
Finances/ capital and pr oper ty
12. What powers do the courts have to allocate financial resources and property on the breakdown of
marriage?
On filing and serving the petition and summons, both parties are restrained from transferring, conveying or
disposing of any property, whether community or separate, during the course of the action. These automatic
temporary restraining orders (ATROs) are specifically listed on the summons filed with the petition. Exceptions to
the ATROs exist if either party must access community assets to pay for the basic necessities of life, attorney fees or
if such assets are used as part of the ordinary course of business. Additionally, the court can allocate the income
earned as temporary child and/ or spousal support, if one spouse earns significantly more income than the other.
I ncome a party receives from a trust, company or other entity or asset, which is not held in the name of either party,
can be considered and allocated when the court determines the amount of child support and/ or spousal support. The
court can make orders for the distribution of funds on the breakdown of the marriage for expenses, debt or attorney
fees.
13. What factors are relevant to the exercise of the court's powers?
The court must divide the community estate of the parties equally (section 2550, FC). Property held in joint title
and/ or property acquired during the marriage is presumed by the court to be community property (sections 2580
and 2581, FC). The court has the discretion to award a community asset entirely to one party to effect an overall
equal division of the community estate (section 2601, FC).
The court also has the power to effect an unequal division or award additional assets to one party if it determines
that assets were misappropriated by the other party (secti on 2602, FC). I f the community estate is worth less than
USD5,000, the court can award all of it to one spouse if the other cannot be located (section 2604, FC).
To overcome the community property presumption, a party asserting a separate property claim has the burden of
tracing the asset to a separate property source (I n r e Mar r iage of Walr ath (1998) 17 Cal.4th 907, 918).
14. What is the court's current position on the division of assets?
The court must divide all community property assets equally (section 2550, FC). This generally means that assets are

to be divided "in kind" (Mar r iage of Br igden (1978) 80 Cal. App. 3d 380, 390). As an exception to the equal "in kind"
division rule, the court may award the entirety of one asset to one party to effect "a substantially equal division of t he
community estate", when "economic circumstances warrant" (section 2602, FC).
Finances/ m aintenance ( alim ony)
15. How does ongoing spousal maintenance operate following marital breakdown?
Each party has a duty to support the other party (section 4300, FC). Spousal support after the breakdown of the
marriage is apportioned into two parts:
• Temporary support.
• Permanent support orders.
During the proceeding, the court has the authority to order a party to pay temporary spousal support in an amount
necessary to support the other spouse (section 3600, FC).In determining an amount for temporary support, the court
may consider a number of factors set out in section 4320 of the FC, the most important one being t he relative incomes
of each party. This is subject to the restrictions of sections 4320(i), 4320(m) and 4325 of the FC (that prevent a
spouse who has been the victim of domestic violence from having to support his or her abuser). The benchmark
typically used by the court in determining the needs of the parties is the standard of living enjoyed during the
marriage. The purpose of this is to allow the parties to maintain the status quo of the marital standard of living.
I n making a determination of permanent support, the court is bound by the statutory guidelines of section 4320 of
the FC. While the need and ability to pay are a part of these guidelines, they are only two in a long list of factors the
court must consider. Other factors include:
• The skills and abilities of each party to support themselves.
• The duration of the marriage.
• The assets and debts of each party.
• The age and health of the parties.
• History of violence or domestic abuse.
• The balance of the hardships to each party.
Any other factors the court determines are just and equitable.
A party will be ordered to pay spousal support for a period that the court considers is reasonable based on the listed
factors. The court can also advise the supported spouse that he or she must make efforts to become self-supporting
(section 4330(b), FC; r e Mar r iage of Gavr on (2003) CA 3r d 705). The party paying support may seek a modification
of the court's support order upon a change of circumstance (such as loss of income of the paying party, increase in
income of the receiving party or other changes that effect the needs of the receiving party and/ or ability of the party
to pay support).
A marriage of ten years or more is a marriage of long duration in California (section 4336, FC). For marriages of long

duration, the court retains jurisdiction to make or modify spousal support orders in the future unless the parties
expressly agree in writing to terminate the court's jurisdiction or expressly state in writing that support is not
modifiable (Mar r iage of Hibbard (2013) 212 CA 4th 1007).
16. I s it common for maintenance to be awarded on marital breakdown?
Spousal support is ordered in most cases where there is a discrepancy of income between the parties. While the
amount and duration of support varies from case to case, there is typically an award of support unless the parties:
• Affirmatively waive support.
• Do not seek support.
• Make close to ident ical salaries.
17. What is the court's current position on maintenance on marital breakdown?
Temporary or pendente lite (that is, pending litigation) spousal support can be ordered during pending proceedings
(section 3600, FC) when one party files a request for spousal support with the court. The court will order temporary
spousal support based on the parties' respective incomes and specific factors affecting income available for support
(for example, tax deductions). The purpose of temporary support is to maintain the status quo of the marital standard
of living until the parties divide the assets and debts of the marriage and a permanent spousal support order is made
(IRMO McManus (2010) 182 Cal App 4th 330,337).
Child suppor t
18. What financial claims are available to parents on behalf of children within or outside of the marriage?
Either parent may file a request for child support with the court for children of the relationship. Child support may
be requested and ordered regardless of whether the parties have been married (section 3600, FC).
I f the parties are married and they own a family home, the court may order a deferred sale of the home such that the
custodial parent and the children may remain in the home. Before making such an order, the court must first consider
whether it is economically feasible to maintain the home and whether such an order is necessary to minimize the
adverse impact of the dissolution of marriage proceedings on the child (sections 3800 to 3810, FC).
I f the child has his or her own property, the court may order that an allowance be made from the child's property to
the parent who is or should be receiving child support (section 3902, FC).
19. On what basis is child maintenance calculated?
Both parents have the duty to support their minor child to the best of his or her ability until the child is 18 years old
(or 19 years old if they are still in high school), married or emancipated (section 3900 and 3901, FC). To ensure
that parents share in this responsibility equally, a state-wide formulaic guideline is used to determine the amount
of child support payable (section 4050 to 4076, FC). The California courts must not depart from t he statutory

guideline child support calculation except for specific and limited circumstances provided by the legislature
(sections 4050 and 4052, FC).
The components of California's guideline child support formula includes the amount of both parents' gross income
and the approximate percentage of time that the higher earner has or will have primary physical responsibility for
the children. Computer software programs calculate the complex algebraic formula set out in the statute.
The most notable exception to the child support formula occurs when the parent being ordered to pay child support
"has an extraordinarily high income and the amount determined under the formula would exceed the reasonable
needs of the children" (section 4057(b)(3), FC). What constitutes "an extraordinarily high income" or "the
reasonable needs of the children" is determined on a case-by-case basis.
The court can order additional child support to cover portions of specific expenses such as:
• Child care costs.
• Uninsured health care costs.
• Travel expenses for visitation.
• Costs related to the education or other special needs of the child.
(Section 4062, FC.)
20. What is the duration of a child maintenance order (up to the age of 18 years or otherwise)?
Parents must pay child support until the time the child reaches 18, unless that child has not yet graduated from
high school (grade 12), or if the child dies, becomes emancipated or marries, whichever occurs first. I n this case,
the support will continue until the child is 19 years old and graduates from high school, whichever occurs first
(section 3901, FC).
This duty of support does not extend to college or university, whether it is for tuition or general support. The
California Court loses jurisdiction over the issue of child support as soon as the child reaches 18 or 19, where
applicable, or dies, becomes emancipated or marries, whichever first occurs. The only exception is that a support
order may be extended if a child is disabled (section 3910, FC).
21. Can a child (whether of legal maturity or otherwise) make a claim directly against their parents?
Both parents can agree that one parent will pay for college or university expenses of the child (even though this is not
required in California). In such cases, if there is intent to create a third party beneficiary in the child, the child can
sue to enforce such private agreement between his or her parent s.
Enfor cem ent of financial or der s
22. What are the main methods of enforcement to ensure compliance with financial orders following
divorce/ dissolution in your jurisdiction?

The primary methods of enforcement in California are contempt motions, writs of execution, judgment liens, income
withholding orders and wage garnishments.
23. What is the legal position on the reciprocal enforcement of financial orders?
California will typically enforce financial orders from other states within the US. Support orders (child support,
spousal support and family support) are enforced through the UIFSA (section 4900 and following, FC). A support
order from another country is enforceable if that country's laws and procedures for issuing support orders are
substantially similar to California's laws and procedures.
Both the US government and the California government maintain a list of countries that qualify for reciprocal
enforcement of support orders.
A simplified procedure exists for the enforcement of child and spousal support or spousal support orders from other
states by attachment of wages.
US law requires all states use the same forms for an attachment, which must be honoured in every state. An employer
in California must comply with an order for attachment of wages issued in another state for the payment of support
in the same manner as the employer would comply with a California order (section 5230(1), FC).
Non-support financial orders from another country must be enforced by the filing of a civil action. Under principles
of comity, a court of the US will recognise the judgment of a court of a foreign nation when the foreign court had
proper jurisdiction and enforcement and does not prejudice the rights of US citizens or violate domestic public policy
(Re Stephani e M (1994) 7 C 4th 295). Courts have also provided that they will enforce an order that stems from "a
system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country
and those of other countries". An action to enforce a foreign order must show that the debtor had notice of the foreign
proceedings and a full opportunity to participate in the proceedings.
Childr en
Custody/ par ental r esponsibility
24. What is the legal position in relation to custody/ parental responsibility following the breakdown of a
relationship or marriage?
Both parents are equally entitled to the custody of their child (section 3010(a), FC). Following the breakdown of a
relationship or marriage, the court will formulate custody orders that are in the child's best interests, taking into
consideration the health, safety, and welfare of the child, and any history of abuse by a parent (section 3011, FC). The
public policy of the state to ensure the health, safety, and welfare of the children is the court's primary concern
(section 3020(a), FC).
I n awarding custody, there is no preference or presumption for or against joint legal custody, joint physical custody,
or sole custody (section 3040(d), FC). A parent will not be disqualified from receiving custody based on his or her
immigration status (section 3040(b), FC). Rather, courts are conferred with the widest discretion to choose a
parenting plan that is in the best interest of the child (section 3040(d), FC). I f a child has more than two parents, the
court must allocate custody and visitation rights based on the best interests of the child, including but not limited to
addressing the child's need for continuity and stability by preserving established patterns of care and emotional
bonds (section 3040(e), FC). However, the court has discretion to issue an order that does not award all parents legal

or physical custody if the court finds that custody for all parents would not be in the best interests of the child ( section
3040(e), FC).
There are a variety of factors a court must consider in determining the child's best int erests. Among other factors,
courts consider:
• The presence of child abuse (sections 3011, 3020, 3030, 3031, 3044, and 6323, FC).
• Drug or alcohol abuse by either parent (section 3011, FC).
• The child's ability to maintain frequent and continuing contact with the non-custodial parent (sections
3020(b) and 3040, FC).
• Risk of abduction by one parent (section 3048, FC).
• Factors a court is not permitted to consider in issuing custody orders include:
• A parent's gender (secti on 3040(c), FC).
• One parent's superior financial conditions (Bur char d v Gar ay (1986) 42 Cal.3d 531; In r e Mar riage of
Finger t (1990) 221 Cal. App. 3d 1575).
• Racial prejudice (Palmor e v Sidoti (1984) 466 US 429).
• Absent a showing of harm, a parent's religious background (In r e Mar riage of Weiss (1996) 42 Cal. App. 4th
106; I n r e Mar r iage of Mentr y (1983) 142 Cal. App. 3d 260).
I n California, if a child is 14 years of age or older, and wishes to address the court regarding custody or visitation, the
court will permit the child to testify unless the court finds that the testimony is not in the child's best interests (section
3042(c), FC). For children younger than 14 years of age, courts have the discretion to permit the child to testify
regarding custody and visitation if the court determines it appropriate pursuant to the child's best interests (section
3042(d), FC). Courts must consider and give due weight to a child's preference if the child "is of sufficient age and
capacity to reason so as to form an intelligent preference as to custody or visitation" (section 3042(a), FC).
25. What is the legal position in relation to access/ contact/ visitation following the breakdown of a relationship
or marriage?
Courts generally apply the best interests of the child standard when making a child custody or visitation order
(sections 3011, 3020, 3040, 3087, FC).
I t is the policy of the state to ensure that children have frequent and continuing contact with both parents and to
encourage parents to share the rights and responsibilities of child rearing (section 3020(b), FC). It is well established
that custody should be given to the parent who promotes frequent and continuing contact with the other parent
(Mar r iage of Lewin (1986) 186 CA 3d 1482). While a custodial parent has the presumptive right to change t he
residence of the child (section 7501, FC), the change in residence by the custodial parent for the purpose of frustrating
visitation should be considered in the court's decision to change custody (r e Mar r iage of Ciganovich (1976) 61 CA
3d 289).
Although "frequent and continuing contact" is a legislative mandate, it cannot be used to overcome the presumption
that awarding custody to a parent who has perpetrated domestic violence is detrimental to the child (section 3044
(b)(1), FC).

The court must consider and give due weight to the wishes of the child, if the child is of sufficient age and capacity to
form an int elligent preference regarding custody or visitation (section 3042(a), FC). A child that is at least 14 years
of age has the presumptive right to inform the court of his or her wishes regarding a custody or visitation order
(section 3042(c), FC).
I nter national abduction
26. What is the legal position on international abduction?
I nternational abduction cases have both civil and criminal remedies. The government uses criminal processes to hold
the abductor responsible for criminal parental kidnapping. A parent uses civil remedies to seek an abducted child's
return.
A parent can be criminally charged under state or US law, such as the Federal International Parental Kidnapping
Crime Act (FIPKCA). I t is a felony (punishable by a fine and/ or up to three years' imprisonment) for anyone to
remove or attempt to remove, or to retain a child under the age of 16 outside the US with intent to obstruct the lawful
exercise of parental custody or visitation rights arising by operation of law, court order or legally binding agreement
of the parties (FI PKCA).
Sections 277 to 280 of the California Penal Code also address the issue of child abduction. Every person who takes,
entices away, keeps, withholds or conceals a child (under the age of 18 years) and maliciously deprives a lawful
custodian of a right to custody, or a person of a right to visitation, will be punished (section 278.5(a), Califor nia
Penal Code). If charged under state law, the prosecutor can apply for a federal Unlawful Flight to Avoid Prosecution
warrant if the abductor has fled the country to avoid prosecution.
Criminal charges do not address child recovery. A parent must simultaneously pursue civil means to locate and
recover a child. Sections 3130 to 3135 of the FC provide guidelines for locating a missing child.
When children are wrongfully removed to or retained in jurisdictions signatory to the HCCH Convention on the Civil
Aspects of I nternational Child Abduction 1980 (Hague Child Abduction Convention), a parent may use the
Convention's administrative and legal remedies to seek the child's return or access rights.
Cohabitation
27. What legislation (if any) governs division of property and financial claims for unmarried couples on the
breakdown of the relationship?
I n general, a party to a cohabitation arrangement does not have automatic rights to property division or spousal
support. They must file a civil lawsuit alleging a breach of contract.
The basis for these claims emerges from case law and general civil law and not from the FC or any specific statutes
on cohabitation. The leading case applying these contract and civil law principles to cohabitation arrangements is
Mar vin v Mar vin (1976) 18 C.3d 660 (known as Mar vin actions).
I n general, the causes of action are:
• Breach of an express contract.
• Breach of an implied contract (as understood from the parties' conduct).

• Action to enforce a partnership or joint venture, or to recover the reasonable value of services rendered
(often domestic services).
Contracts that only include the provision of sexual services as part of the agreement are void and unenforceable.
With regard to contracts implied by the parties' behaviour, living together is insufficient, by itself, to establish an
implied contract for property or support. Other relevant factors that a court will consider include:
• The reasons the parties did not marry.
• How title to bank accounts were held (joint or separate).
• Whether the parties incurred joint or separate debts.
• Whether the parties pooled finances to acquire property.
• How title to property is held (joint or separate).
• Joint interest in a business venture.
• An understanding between the parties to share profits and/ or losses.
• Joint or shared rights of control over a business.
I f a cohabitating party reasonably believed that they were married, they can file for dissolution or nullity with the
family court and potentially establish their right to property and support as if they were legally married (Ceja v
Rudolph & Sletten, Inc (2013) 56 Cal. 4th 1113). These claimants are known as "putative spouses" (sections 2251 to
2252, FC).
Fam ily dispute r esolution
M ediation, collabor ative law and ar bitration
28. What non-court-based processes exist to resolve disputes? What is the current status of agreements
reached through mediation, collaborative law and arbitration?
Mediation is governed by the California statutes and the case law interpreting those statutes. The mediation process
is confidential. All statements and offers made in mediation are precluded from being introduced into evidence at a
hearing unless both parties have waived the mediation confidentiality privilege. The mediation statutes are contained
in sections 703.5 and 1115 to 1129 of the California Evidence Code. Mediation is required by the family court with a
court-provided mediation service prior to the court hearing any requests regarding child custody (section 3170, FC).
I n certain counties, the mediator may be required to submit a recommendation to the court regarding the custody
and visitation issues (section 3183, FC).
Parties can agree to make the terms of a written agreement reached in mediation enforceable as a judgment on
motion under section 664.6 of the Code of Civil Procedure.
29. What is the statutory basis (if any), for mediation, collaborative law and arbitration?

The collaborative law process is governed by the Collaborative Family Law Act where "t he parties and any
professionals engaged by the parties to assist them agree in writing as referenced in subdivision (a) on an agreed
basis without resorting to adversary judicial intervention to use their best efforts and to make a good faith attempt
to resolve disputes related to their family law matters" (section 2013 (b), FC).
While a case is in a collaborative process pursuant to the written agreement of the parties, no contested proceedings
are filed. If a contested proceeding is filed, the collaborative process is automatically terminated.
Parties in a family law proceeding can enter into a private arbitration agreement to expedite the resolution process.
Private arbitration is governed by section 1280 and following of the Code of Civil Procedure and is a binding
agreement between the parties to submit to arbitration.
Civil par tner ship/ sam e-sex m ar r iage
30. What is the status of civil partnership/ same-sex marriage? What legislation governs civil
partnership/ same-sex marriage?
On 26 June 2013, the US Supreme Court issued a ruling in the case of United States v Windsor , which held as
unconstitutional a key provision of the federal law known as the Defense of Marriage Act (DOMA). The court held
that section 3 of the DOMA, which provided that the US Government did not need to recognise or provide benefits
to same-sex married couples, was unconstitutional. The Windsor decision considered only the constitutionality of
the subject provision of DOMA, and did not specifically address US recognition of domestic partnerships and civil
unions. The Windsor decision also did not consider the constitutionality of one state refusing to recognise a same-
sex marriage cont racted in another state for the purposes of state law. The Windsor decision will allow married same-
sex couples to have the same US tax and property rights as married couples of the opposite sex.
On 26 June 2013, in relation to a case arising from a challenge to the ballot initiative passed in 2008 (Proposition
8), which outlawed same-sex marriages in the state of California, the US Supreme Court issued a ruling which
permitted same-sex marriages in California. Therefore, the current state of the law in California allows same-sex
couples to marry in California.
The FC applies to domestic partnerships. The legislation that addresses registration, termination and the legal effect
of registration is found in sections 297 t o 299.6 of the FC. Section 300 of the FC now defines marriage as "a personal
relation arising out of a civil contract between two persons, to which the consent of the parties capable of making
that contract is necessary".
California recognises marriages between two people of the same sex where the marr iage is contracted outside of
California and is valid in the jurisdiction in which the marriage was contracted (section 308, FC).
Two people of the same sex can be divorced in California if the marriage was entered into in California even if neither
party resides in California anymore, if they have relocated to a jurisdiction that will not dissolve the marriage ( section
2320, FC).
On 26 June 2015, the US Supreme Court issued a ruling in the landmark case of Ober gefell v Hodges, in which t he
Court held in a 5 to 4 decision that the fundamental right to marry is guaranteed to same-sex couples by both the
Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the US Constitution.

Ober gefell requires all states to issue marriage licences to same-sex couples and to recognise same-sex marriages
validly performed in other jurisdictions. This legalised same-sex marriage throughout the United States, and its
possessions and territories.

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Family law in the United States: California: overview, Practical Law Country Q&A...

Country Q&A | Law stated as at 01-Nov-2020 | United States

A Q&A guide to family law in US: California.

This Q&A is part of the global guide to family law

Jur isdiction and conflict of law

Sour ces of law

© 2021 Thomson Reuters. All rights reserved. 24

Sam e-sex spouses and civil par tner s

• The Federal Parental Kidnapping Prevention Act (FPKPA).

• The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).

(Section 1738A, 28 USC; section 3400 and follow ing, FC.)

D om icile, nationality and habitual r esidence

© 2021 Thomson Reuters. All rights reserved. 25

financial arrangements, and children?

• Physical presence in the jurisdiction.

• The intent to remain in the jurisdiction indefinitely.

(Smith v Smith (1955) 45 C 2d. 235,239.)

• Tax return filings.

Con flict of law

• Prevention of multiple and vexatious litigation.

• The interests of the forum.

• The convenience of the parties.

(Leadfor d v Leadfor d (1992) 6 CA 4th 571, 574-575.)

© 2021 Thomson Reuters. All rights reserved. 26

(Section 3426, FC.)

The factors include

• Whether any other forum has properly assumed jurisdiction.

© 2021 Thomson Reuters. All rights reserved. 27

(Sections 3421 to 3428, FC.)

5. Are foreign nationals treated differently on divorce?

(Section 5700.604, FC)

Ser vice of pr oceedings

© 2021 Thomson Reuters. All rights reserved. 28

Validity of pr e- and post-nuptial agr eem ents

7. To what extent are pre- and post-nuptial agreements binding?

An agreement is unenforceable if, at the time of execution:

• the party did not waive disclosure; and

(Section 1615, FC.)

© 2021 Thomson Reuters. All rights reserved. 29

abilities) (Mar r iage of Facter (2013) 212 Cal.App. 4th 967).

California does not have matrimonial regimes.

• Using a written declaration or agreement (section 852, FC).

© 2021 Thomson Reuters. All rights reserved. 30

courts in your jurisdiction?

D ivor ce, nullity and judici al separ ation

10. What are the grounds for divorce?

There are two grounds for commencing a dissolution action:

• Permanent legal incapacity to make decisions (section 2312, FC).

A marriage is void when the marriage is:

• Incestuous (section 2200, FC).

• Bigamous or polygamous (section 2201, FC).

I n these instances the marriage is declared to have never existed.

© 2021 Thomson Reuters. All rights reserved. 31

Judicial separ ation

• Permanent legal incapacity to make decisions.

(Section 2310, FC.)

11. What is t he procedure and timeline for divorce?