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California Marital Settlement (Divorce) Agreement

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California Marital Settlement (Divorce) Agreement

Updated October 19, 2023

A California marital settlement agreement allows divorcing spouses to document their decisions for alimony, child support, child custody, and the division of jointly-owned assets and debt. By defining these decisions in advance, the couple controls post-marital rights and responsibilities. Once signed, the spouses must comply with the agreement terms to avoid damages resulting from a breach of contract.

If the couple seeks an uncontested divorce ruling, the agreement must be submitted to the court during the divorce proceedings. The result of this inclusion will be a court-enforceable contract that carries higher penalties for any violation. A mediator is often hired in complex divorce circumstances to negotiate terms and establish an arrangement that is equitable.

Table of Contents

Divorce Laws

Statutes – FAM Division 6. (Nullity, Dissolution, and Legal Separation)

Alimony (§ 4320)

In determining spousal support (alimony), the court will consider the following factors:

  • The degree to which each spouse’s earning capacity is sufficient to support the 
    standard of living defined while married, with consideration of the following:
    1. The earning skills of the spouse receiving support, the job market for such skills, the expense and time needed for the spouse to obtain proper training or education to evolve such skills, and the potential need for further training or education to obtain other, more profitable employment or skills.
    2. The degree to which necessary periods of unemployment incurred while married negatively affects the earning capacity of the spouse receiving support.
  • The degree to which the spouse receiving support contributed to the earning capacity of the spouse providing support.
  • The ability of the spouse providing support to pay support while taking into account their earned and unearned income, earning capacity, assets, and living standard.
  • Each spouse’s needs according to the living standard established while married.
  • Each spouse’s assets, including separate property.
  • The length of the marriage.
  • The ability of the spouse receiving support to engage in profitable employment without unnecessarily conflicting with the interests of children in their custody.
  • Each spouse’s age and health.
  • All recorded evidence of domestic violence between the spouses or committed by either spouse on either spouse’s child, including, but not limited to, the following considerations:
    1. A plea of nolo contendere.
    2. Domestic violence caused by the supporting spouse on the supported spouse resulting in emotional distress.
    3. The history of violence against the supporting spouse by the supported spouse.
    4. A protective order issued following a hearing pursuant to § 6340.
    5. The discovery by the court during the pendency period of the case that a spouse committed domestic violence.
  • Each spouse’s tax consequences, both immediate and specific.
  • The hardships incurred by each spouse.
  • The objective that the supported spouse will be able to sustain themselves within a reasonable time period.
  • The criminal convictions of an abusive spouse.
  • All other factors the court deems just and equitable.

Child Support (§ 3900 – 4253)

California courts follow these guidelines to determine the amount of child support given to a spouse. Spouses who have minor children or are excepting a child(ren) must file their marital settlement agreement along with the Child Support Information and Order Attachment (FL-342).

Division of Property (§ 2550)

California is a community property state. Consequently, marital property and debt will be divided equally among the spouses.

Grounds for Divorce (§ 2310 – 2313)

A divorce may be granted upon the following grounds:

  • The couple has irreconcilable differences that have caused the marriage to breakdown beyond repair; or
  • A spouse has permanently lost their capacity to make decisions.

Interim Support (§ 3600)

While the divorce case is pending, the court may grant alimony or child support to last until the case has been finalized.

Residency (§ 2320)

In order to qualify for divorce, one (1) of the spouses must have resided in California for six (6) months and in the county where the divorce is filed for three (3) months.

Divorce Forms

Uncontested Divorce with No Children:

Uncontested Divorce With Children:

How to File for Divorce in California (12 steps)

  1. Petition for Divorce
  2. Parenting Documents
  3. File for Divorce
  4. Serve the Papers
  5. Respond to Petition
  6. Financial Disclosures
  7. Deliver Financial Disclosures
  8. Marital Settlement Agreement
  9. Complete Additional Paperwork
  10. Court Orders
  11. Court Ruling
  12. Name Change

1. Petition for Divorce

The person filing for divorce, the “petitioner,” must begin by completing a Petition – Marriage/Domestic Partnership. In this form, the petitioner provides general information about the marriage and makes requests for orders concerning alimony, child support, parental rights, and property and debt distribution. If additional space is needed to list any property/debts, a Property Declaration may be used.

2. Parenting Documents

Spouses with children under the age of eighteen (18) will need to fill out a Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act. If the petitioner requested a court order for visitation or custody in their petition, they must also complete a Child Custody and Visitation (Parenting Time) Application Attachment.

3. File for Divorce

The petitioner should contact a clerk of the court, a family law facilitator, or a self-help center to see if any locally-issued documents are required for their divorce. When ready to file, the petitioner must take the original documents and two (2) copies of each form to the courthouse and file them with a clerk. The clerk will keep the originals, stamp the copies, and return the copies to the petitioner.

  • There is a $435 filing fee for divorce in California. If the petitioner can’t pay the fee, they can ask for an exemption by filing a Request to Waive Court Fees.

4. Serve the Papers

Copies of the divorce forms must be served on the other spouse (the “respondent”) by a process server, a county sheriff, or any third-party aged eighteen (18) or older. Included with the service documents must be a blank Response – Marriage/Domestic Partnership and a blank Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act. The paperwork can be served in either of the following ways:

  • The server can hand-deliver the copies and blank forms to the respondent; or
  • The server can mail the copies, blank forms, and two (2) copies of a Notice and Acknowledgment of Receipt to the respondent. The respondent must sign one (1) copy of the Notice and Acknowledgment of Receipt and return it to the server.

After delivering the paperwork, the server must fill out a Proof of Service of Summons and attach the Notice and Acknowledgment of Receipt (if applicable). These documents will be returned to the petitioner who must then file them at the courthouse.

Note: If either spouse receives money or another form of help from the government to support a child from the marriage, or if there is a pending case for child support with a local agency, the petitioner must also serve copies of the forms on the child support agency from which the benefits are provided. If serving the agency by mail, the server will complete a Proof of Service by Mail which must be returned to the petitioner and filed with the court.

5. Respond to Petition

The respondent must complete a Response – Marriage/Domestic Partnership to provide case details and specify whether they’d like the court to handle alimony, child support, parenting rights, and the division of assets and debt. If the spouses have minor children together, the respondent must complete a Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act. If the respondent indicated that they want the court to make orders for visitation and custody, they must also file a Child Custody and Visitation (Parenting Time) Application Attachment.

  • The respondent must file their documents and two (2) copies of each form with the court within thirty (30) days after the service date.
  • Copies of the respondent’s documents must be served on the petitioner (see service instructions). After serving the petitioner, the respondent must file either a Proof of Personal Service or a Proof of Service by Mail, depending on the service method used.

6. Financial Disclosures

Within sixty (60) days of filing the petition, each party must disclose their finances in an Income and Expense Declaration, a Declaration of Disclosure, and either a Schedule of Assets and Debts or a Property Declaration. Attached to the paperwork must be all tax returns filed within the past two (2) years.

7. Deliver Financial Disclosures

A third-party aged who is eighteen (18) or older must deliver photocopies of each spouse’s financial disclosures and tax returns to the other. After delivery, each party must complete a Declaration Regarding Service of Declaration of Disclosure, make two (2) photocopies, and file both the original and photocopies with the court.

8. Marital Settlement Agreement

The spouses will need to define the terms of their separation in a Marital Settlement Agreement. In this document, the parties describe their decisions for alimony, child support, custody, and the division of marital assets and debt. The agreement must be signed by the spouses in the presence of a notary public.

9. Complete Additional Paperwork

Either spouse must fill out the following documents and prepare them for submission to the court:

11. Court Ruling

Either spouse must prepare two (2) copies of each additional document/order and submit the entire package to the court along with two (2) large, stamped envelopes. A judge will review the forms to check for errors. If there are issues with the paperwork, the spouse may need to appear in court, or they may simply need to correct the errors. Once everything is in order and the divorce is granted, the judge will finalize the case by mailing a Judgment and Notice of Entry of Judgment to each spouse.

12. Name Change

If a name change was requested during the divorce proceedings, the new name may be used following the issuance of the Judgement and Notice of Entry of Judgment. If the individual wishes to change their name after the divorce was finalized, they must follow these instructions to update their name.