I understand that California is a community property state. What is community property?

Community property means that all property that the spouses acquire during the marriage belongs to the marriage partnership and is jointly owned by the spouses. The community property system is usually justified by the idea that such joint ownership recognizes the theoretically equal contributions of both spouses to the creation and operation of the family unit. Basic exceptions to general community property principles include property inherited by one spouse and property received as a gift. In those cases, there is a presumption that the spouse who inherited property or received it as a gift owns that property as his or her “separate property,” which is not subject to division. Also, it is possible for the parties to opt out of the community property system by entering into a valid prenuptial agreement.

May I opt out of the community property system?

Yes. By entering into a valid prenuptial agreement, it is possible to opt out of the California community property system. Prenuptial agreements have historically been frowned upon and are often difficult to enforce; however, in recent years, the courts have been more willing to uphold prenuptial agreements. Most of us remember San Francisco Giants slugger Barry Bonds’ prenuptial agreement making headlines. Many legal professionals were surprised that the court upheld Mr. Bonds’ prenuptial agreement. The Bonds decision, along with other recent prenuptial decisions, makes it clear that California courts are much more willing to find a prenuptial agreement valid than in the past. But careful planning, expert drafting, and strict adherence to the provisions of the prenuptial agreement are still necessary to ensure its enforceability.

I believe my spouse wants a divorce. Is there any harm in dating other people before the divorce is final?

California is a no fault state, which means that one spouse does not have to prove the other has done something wrong in order to get a divorce. Therefore, in very general terms, it is okay to date other people before the divorce is final. The real question is, “Is it smart to be dating other people before the divorce is final?” It depends. Sometimes, if one spouse is dating, it may make it more emotionally difficult for the other spouse to proceed with the divorce. Furthermore, if one spouse is dating, it may cause the other spouse to become suspicious as to when the dating relationship began. Again, because California is a no fault state, dating is generally irrelevant — unless a spouse has spent community funds on the person he or she dated during the marriage. In that case, the community could seek reimbursement for funds spent.

I have made substantially more money than my spouse during the marriage. I have heard that if we divorce, I will have to pay support for half the length of our marriage. Is this true?

No, not necessarily. This rule is a common misconception. In California, there is a statutory goal that a supported spouse becomes self-supporting within a reasonable period of time, generally presumed to be half the length of the marriage if the marriage was of short duration. There is no statutory definition of a marriage of short duration; there is only a presumption that if a marriage has lasted more than 10 years, it is a marriage of long duration. What all of this means is that the court will generally try to limit the amount of support to half the length of the marriage if the marriage is relatively short. For example, if the marriage lasted only two years, it is more likely that the court will have no problem terminating support after 12 months of payments. If, however, the marriage is hovering around the 10-year mark, it is much less likely that the court will automatically terminate support at half the length of the marriage. For those marriages that are truly long term, and if the court believes a support award is appropriate, it is possible that the court will order support indefinitely.

I am a domestic partner and I want to end my relationship. Do I have to get a divorce?

Couples who have registered with the California Secretary of State must now file for divorce. The process is the same as that for a traditional divorce, meaning that the legal termination of the relationship must be approved by the Superior Court. By state law, it takes a minimum of six months for termination of the partnership. Pending termination of the partnership, neither partner may register with another person.