Basics FAQs

Divorce or Separation Basics — Frequently Asked Questions

Q. Will getting divorced or legally separated affect my immigration status?

A. It depends. Immigration law can be very complicated, especially as it relates to divorce. Talk to an immigration lawyer for advice on the consequences of filing for divorce. If you have a family law lawyer, make sure he or she is familiar with immigration law or consults with an immigration lawyer about your situation. Click for help finding a lawyer.

Q. I am a victim of domestic violence and want to get divorced or legally separated. Is there anything I need to do before filing my case?

A. If you have been a victim of domestic violence, make a safety plan before you tell your spouse or domestic partner you want a divorce, legal separation, or annulment.

Visit the National Domestic Violence Hotline website or call the hotline at 1-800-799-7233 (TDD: 1-800-787-3224) to find a domestic violence agency in your county.

Find more information about domestic violence.

Q. What if my spouse or domestic partner does not want to give me a divorce?

A. In California, it is not necessary for both spouses or domestic partners to agree to the divorce. Either spouse or domestic partner can decide to end their marriage/partnership. It is not necessary for the other spouse to agree or “give you” a divorce.

The spouse or domestic partner who does not want to get a divorce cannot stop the process by refusing to participate in the case. He or she does not have to sign anything to agree to the divorce. If your spouse or domestic partner does not participate in the divorce case, you will still be able to get a “default” judgment and the divorce will go through.

Q. Am I at a disadvantage if my spouse or domestic partner files for divorce first?

A. Normally, it does not matter who is the first to file the divorce papers.

The court does not give any preference to the first person to file (the petitioner), or any disadvantage to the person who is the respondent.

Q. What is a “no fault” divorce?

A. “No fault” divorce is any divorce where the spouse or domestic partner that is asking for the divorce does not have to prove that the other spouse or domestic partner did something wrong. California is a “no fault” divorce state, which means that to get divorced in California you NEVER have to prove that the other person did something wrong.

To get a no fault divorce, 1 spouse or domestic partner has to state that the couple cannot get along. Legally, this is called “irreconcilable differences.”

Q. Where can I find information about the emotional impact of a contested divorce case?

A. Separation or divorce is a legal process, but it is also a difficult emotional process.  You and your family will surely feel the impact of the legal processes and the emotional issues.

Here are some suggestions:

  • If you and your spouse or domestic partner cannot agree about parenting responsibilities or money issues, get help from a mediator or mental health professional.
  • Keep your children out of the conflict between you and your spouse/partner. Learn more about how you can protect your children at Stepping Back From Anger: Protecting Your Children During Divorce.


You may also want to visit Families Change, an online guide for families going through separation and divorce. It has 3 versions – one for parents, one for children, and one for teens and pre-teens. The guides provide information on dealing with the changes, feelings and emotions during a divorce or separation, the law in these types of cases, resources for the family, and help to work out a child support agreement between the parents.

And, your children may benefit from Changeville, a fun and interactive website for children of parents who are separated or getting a divorce, helping children learn about what to expect and how to deal with their feelings and emotions during their parents’ separation. 

Q: I am in both a same-sex marriage and a registered domestic partnership with my spouse. Do we have to end both in separate court cases?

A:  No. You can now file to end your same-sex marriage and domestic partnership with the same paperwork, same case. Just make sure you check the boxes that apply to indicate you are ending both, the marriage and the domestic partnership.

Q. How do I become a registered domestic partner?

A. To be registered domestic partners, partners must:

  • File a notarized Declaration of Domestic Partnership with the California Secretary of State;
  • Have a common residence;
  • Not be married, already in another registered domestic partnership, or related by blood in a way that would prevent them from marrying;
  • Be at least 18; and
  • Both be members of the same sex or, for opposite-sex couples, at least 1 of them be over 62 and eligible for social security benefits.

Q. How does federal law treat our California domestic partnership?

A. At this point, federal law does not recognize domestic partners. There are over 1,000 federal laws in which marital status is a factor. These include rights under Social Security, Medicare, immigration law, veterans’ benefits, and federal tax laws. Domestic partners also may not have the same rights as married persons if they leave California. This is important for parents to consider in their custody agreement.

Q. How does our domestic partnership affect taxes?

A. Federal tax laws were not changed to recognize domestic partners. These laws can be very complicated and it is important to talk with a lawyer or an accountant who is knowledgeable in this area about income, property, and other taxes.

Q. Where can I find more information about domestic partnerships?
Q: Who gets to keep the engagement ring if the engagement is broken and we do NOT get married?

A: It depends.

If the engagement is broken by mutual agreement, then the person who paid for the ring may get the ring back or its value, or part of its value. A judge or a jury determines what is a fair value for the ring, if the parties cannot agree.

If the engagement is broken by the person receiving the ring through no fault of the person who paid for the ring, then the person who paid for the ring may get the ring back or its value, or part of its value. A judge or a jury determines what is a fair value for the ring if the parties cannot agree.

If the engagement is broken by the person who bought, and paid for, the ring through no fault of the person receiving the ring, the person receiving the ring can keep it.

Q: What is "Innocent Spouse Tax Relief" and Do I Qualify?

A: Many taxpayers choose to file a joint tax return as married or as registered domestic partners because of possible certain tax benefits. When filing joint tax returns, generally you and your spouse or domestic partner assume responsibility for paying any tax, penalties, and interest due. This is true even if you later divorce or terminate the partnership.

If you filed joint tax returns with your spouse or domestic partner and you are now being held responsible for state or federal taxes or penalties, even if your divorce decree says that your spouse is responsible, you may qualify for "innocent spouse tax relief." Read "Innocent Joint Filer Relief - Relief from Paying California income Taxes: Are you Eligible?" for California taxes and Innocent Spouse Relief for federal taxes.

 

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