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Basics FAQs
Divorce or Separation Basics — Frequently Asked Questions
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.
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.
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.
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.
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.”
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.
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.
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.
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.
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.