California is a community property state. This means that property division issues upon divorce are governed by California community property rules. In California, the parties to a divorce action have equal, fifty-fifty rights to the “community estate.”
According to California Family Code § 63, the “community estate” means “both community property and quasi-community property.”
California Family Code § 760 defines “community property” as “all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state…” Thus, all property to which the parties obtained an ownership interest while married to each other is part of the marital community estate subject to equal division during the divorce process.
Under California Family Code § 125, “quasi-community property” means “all real or personal property, wherever situated, acquired before or after the operative date of this code in any of the following ways:…(a) By either spouse, while domiciled elsewhere which would have been community property if the spouse who acquired the property had been domiciled in this state at the time of its acquisition…(b) In exchange for real or personal property, wherever situated, which would have been community property if the spouse who acquired the property so exchanged had been domiciled at the time of its acquisition.”
Because quasi-community property is part of the community estate, all property that the parties acquired during their marriage, whether or not they lived in California at the time, is generally subject to equal division upon divorce.
California law presumes that all property that the parties to a dissolution of marriage petition acquired constitutes divisible community property upon divorce. The parties must prove by clear and convincing evidence, that an asset qualifies as their “separate property” to avoid having it subject to division by the court in divorce proceedings. California Family Code §§ 770-772 governs what qualifies as “separate property.”
Under California Family Code § 770, “separate property” includes:
- “All property owned by the person before marriage”
- “All property acquired by the person after marriage by gift, bequest, devise, or descent.”
- “The rents, issues, and profits of the property described in this section.”
Separate property also includes the earnings and assets a spouse acquires after the date of the parties’ separation.
Date of Separation
Date of separation is important for determining the distribution of the marital community estate, and issues of spousal support. California Family Code § 70 defines “date of separation” as “a complete and final break in the marital relationship…”
Courts will look at two factors when determining when a final break in the marital relationship occurred:
- “The spouse has expressed to the other spouse his or her intent to end the marriage.”
- “The conduct of the spouse is consistent with his or her intent to end the marriage.”
Simply put, courts will look at communications or behaviors that tend to express their intent to get a divorce.
Section 92 of the California Family Code defines “family support” to mean “an agreement between the parents, or an order or judgment, that combines child support and spousal support without designating the amount to be paid for child support and the amount to be paid for spousal support.” Therefore, a family support order does not distinguish amounts as either child support and spousal support.
Income and Expense Declaration
Under California Family Code § 95, an “income and expense declaration” refers to the official form adopted by the Judicial Council where a party provides an itemized listing of their earnings, rents, assets, living expenses, debts, and other costs—including attorney’s fees. The form approved by the Judicial Council for use in family law matters is Form FL-150.
The income and expense declaration is an important court filing used throughout family law cases. A court will rely on the information included in an FL-150 to determine the financial needs of each party, and their ability to pay for child or spousal support. This form will determine the nature and extent of interim support orders, orders for attorney’s fees pending litigation and an award of attorney’s fees at the conclusion of certain proceedings.
Many provisions of the California Family Code and California’s Rules of Court refer to the term “petitioner.” California Family Code § 126 equates the “petitioner” with the plaintiff. Therefore, the term “petitioner” refers to the party who filed the family law action, which includes a petition for divorce, child custody, paternity, and other matters.
The party opposite of the petitioner is commonly referred to as the “respondent.” This is because the opposing party must file a response to the other party’s petition or risk a default judgment favoring the petitioner. Under California Family Code § 127, the definition of “respondent” includes “defendant.”
Request for Order
In California family law, a “request for order,” or “RFO,” is a formal procedural mechanism where a party requests the court to issue a legally-binding directive that requires the parties to act in a certain way. In general, an RFO is synonymous with a court “motion.” Either party can file an RFO with the court, but the terms “petitioner” and “respondent” do not change relative to an RFO. Instead, an RFO is known as either a “petitioner’s request for order” or “respondent’s request for order.”
Take Advantage of Our Skilled Legal Counsel at Moshtael Family Law
The practice of family law requires familiarity with legal terms that are unique to family law proceedings. Our legal team at Moshtael Family Law has the experience and knowledge of California family law litigation, including the special terms used throughout legal proceedings. We can help you understand your rights and interests in family law proceedings by explaining the meaning and relevance of various family law terminology.
Contact Moshtael Family Law at (714) 909-2561, or by submitting our online request form, to schedule a case evaluation with one of our attorneys.