Dissolution of Marriage in California

California’s Family Code, in Division 6, Part 3, deals with dissolution of marriage and legal separation. Chapter 1 concerns the effect of dissolution. Section 2300 states that the effect of a judgment of dissolution of marriage when it becomes final is to restore the parties to the state of unmarried persons.

Chapter 2 deals with the grounds for dissolution or legal separation. Section 2310 provides that dissolution of the marriage or legal separation of the parties may be based on either of two specified grounds (irreconcilable differences or permanent legal incapacity), which must be pleaded generally.

Section 2311 provides that irreconcilable differences are those grounds which are determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved.

Section 2312 allows a marriage to be dissolved on the grounds of permanent legal incapacity to make decisions only upon proof, including competent medical or psychiatric testimony, that the spouse was at the time the petition was filed, and remains, permanently lacking the legal capacity to make decisions.

Section 2313 provides that no dissolution of marriage granted on the ground of permanent legal incapacity to make decisions relieves a spouse from any obligation imposed by law as a result of the marriage for the support of the spouse who lacks legal capacity to make decisions, and the court may make an order for support, or require a bond therefor, as the circumstances require.

Chapter 3 deals with residence requirements. Section 2320 states that 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.

In addition, a judgment for dissolution, nullity, or legal separation of a marriage between persons of the same sex may be entered, even if neither spouse is a resident of, or maintains a domicile in, this state at the time the proceedings are filed, if specified conditions apply.

Section 2321 states that, in a proceeding for legal separation of the parties in which neither party, at the time the proceeding was commenced, has complied with the residence requirements, either party may, upon complying with the residence requirements, amend the party’s petition or responsive pleading in the proceeding to request that a judgment of dissolution of the marriage be entered.

Section 2322 provides that, for the purpose of a proceeding for dissolution of marriage, each spouse may have a separate domicile or residence depending upon proof of the fact and not upon legal presumptions.

Chapter 4 deals with general procedural provisions. Section 2330 requires a proceeding for dissolution of marriage or for legal separation of the parties to be commenced by filing a petition or joint petition entitled “In re the marriage of ____ and ____,” which states whether it is a petition for dissolution of the marriage or for legal separation of the parties.

In a proceeding for dissolution of marriage or for legal separation of the parties, the petition is required to set forth at least five specified facts. In a joint petition proceeding for dissolution of marriage or for legal separation of the parties, the joint petition is required to set forth specified facts.

Section 2330.1 states that, in any proceeding for dissolution of marriage, for legal separation of the parties, or for the support of children, the petition or complaint may list children born before the marriage to the same parties and a determination of paternity may be made in the action.

Section 2330.3 specifies that all dissolution actions, to the greatest extent possible, are to be assigned to the same superior court department for all purposes, in order that all decisions in a case through final judgment must be made by the same judicial officer. However, if the assignment will result in a significant delay of any family law matter, the dissolution action need not be assigned to the same superior court department for all purposes, unless the parties stipulate otherwise.

Section 2330.5 provides that, if no demand for money, property, costs, or attorney’s fees is contained in the petition and the judgment of dissolution of marriage is entered by default, the filing of income and expense declarations and property declarations cannot be required.

Section 2331 specifies that a copy of the petition, together with a copy of a summons, in a form and content approved by the Judicial Council, must be served upon the other party to the marriage in the same manner as service of papers in civil actions generally.

Section 2332 states that, if the petition for dissolution of the marriage is based on the ground of permanent legal incapacity to make decisions and the spouse who lacks legal capacity to make decisions has a guardian or conservator, the petition and summons must be served upon the spouse and the guardian or conservator. The guardian or conservator must defend and protect the interests of the spouse who lacks legal capacity to make decisions. The term “guardian or conservator” is defined.

Section 2333 says that, if from the evidence at the hearing the court finds that there are irreconcilable differences which have caused the irremediable breakdown of the marriage, the court is required to order the dissolution of the marriage or a legal separation of the parties.

Section 2334 provides that, if it appears that there is a reasonable possibility of reconciliation, the court is required to continue the proceeding for the dissolution of the marriage or for a legal separation of the parties for a period not to exceed 30 days.

Section 2335 states, in a pleading or proceeding for dissolution of marriage or legal separation of the parties, evidence of specific acts of misconduct is improper and inadmissible.

Section 2335.5 provides that, in a proceeding for dissolution of marriage or legal separation of the parties, where the judgment is to be entered by default, the petitioner is required to provide the court clerk with a stamped envelope addressed to the spouse who has defaulted and the court clerk is required to mail a copy of the request to enter default to that spouse in the envelope provided.

Section 2336 specifies that no judgment of dissolution or of legal separation of the parties may be granted upon the default of one of the parties or upon a statement or finding of fact made by a referee; but the court must require proof of the grounds alleged, and the proof, if not taken before the court, is to be by affidavit.

In all cases where there are minor children of the parties, each affidavit or offer of proof must include an estimate by the declarant or affiant of the monthly gross income of each party. If the proof is by affidavit, the personal appearance of the affiant is required only when it appears to the court that any of the four specified circumstances exist.

Section 2337 states that, in a proceeding for dissolution of marriage, the court, upon noticed motion, may sever and grant an early and separate trial on the issue of the dissolution of the status of the marriage apart from other issues. The court may impose upon a party any of the ten conditions on granting a severance of the issue of the dissolution of the status of the marriage, and in case of that party’s death, an order of any of the ten specified conditions continues to be binding upon that party’s estate.

Prior to, or simultaneously with, entry of judgment granting dissolution of the status of the marriage, all of the specified actions are required to occur, including a specified attachment to the judgment granting a dissolution of the status of the marriage.

Section 2338 states that, in a proceeding for dissolution of the marriage or legal separation of the parties, the court must file its decision and any statement of decision as in other cases. If the court determines that no dissolution should be granted, a judgment to that effect only is to be entered. If the court determines that a dissolution should be granted, a judgment of dissolution of marriage is to be entered.

Section 2338.5 provides that, where a judgment of dissolution or nullity of marriage or legal separation of the parties is to be granted upon the default of one of the parties, three specified requirements must be satisfied.

Section 2339 provides that no judgment of dissolution is final for the purpose of terminating the marriage relationship of the parties until six months have expired from the date of service of a copy of summons and petition or the date of appearance of the respondent, whichever occurs first. The court may extend the six-month period for good cause shown.

Section 2340 requires a judgment of dissolution of marriage to specify the date on which the judgment becomes finally effective for the purpose of terminating the marriage relationship of the parties.

Section 2341 specifies that, if an appeal is taken from the judgment or a motion for a new trial is made, the dissolution of marriage does not become final until the motion or appeal has been finally disposed of, nor then, if the motion has been granted or judgment reversed.

Section 2342 provides, where a joint petition for summary dissolution is thereafter revoked and either party commences a proceeding within 90 days from the date of the filing of the revocation, the date the judgment becomes a final judgment is calculated by deducting the period of time that has elapsed from the date of filing the joint petition to the date of filing the revocation.

Section 2342.5 states that, if the parties file a joint petition for dissolution of marriage or for legal separation of the parties and joint summons, for identification purposes, the first joint petitioner is deemed petitioner and the other joint petitioner is deemed respondent. A joint summons includes the temporary restraining order. There are detailed rules related to a temporary restraining order. The parties may file an amended joint petition and either party may seek discovery.

Section 2343 allows a court to retain, upon notice and for good cause shown, or on stipulation of the parties, jurisdiction over the date of termination of the marital status, or may order that the marital status be terminated at a future specified date. On the date of termination of the marital status, the parties are restored to the status of unmarried persons.

Section 2344 states that the death of either party after entry of the judgment does not prevent the judgment from becoming a final judgment.

Section 2345 prohibits a court from rendering a judgment of the legal separation of the parties without the consent of both parties unless one party has not made a general appearance and the petition is one for legal separation.

Section 2346 provides that, if the court determines that a judgment of dissolution of the marriage should be granted, but by mistake, negligence, or inadvertence, the judgment has not been signed, filed, and entered, the court may cause the judgment to be signed, dated, filed, and entered in the proceeding as of the date when the judgment could have been signed, dated, filed, and entered originally, if it appears to the satisfaction of the court that no appeal is to be taken in the proceeding or motion made for a new trial, to annul or set aside the judgment.

Section 2347 provides that a judgment of legal separation of the parties does not bar a subsequent judgment of dissolution of the marriage granted pursuant to a petition for dissolution filed by either party.

Section 2348 requires the clerk of the superior court of each county to report annually to the Judicial Council the number of judgments entered in the county during the preceding calendar year or other 12-month period as required by the Judicial Council for each of the three specified cases.