Marriage, by definition, is a contract-based civil union formed between two people. Couples who seek to marry in California must satisfy some requirements before they can be legally married in the state. Ultimately, marriage, divorce, and all other legal issues relating thereto are matters in the control of California state courts and California family code.
To marry, California requires the spouses-to-be are at least 18 years old (although minors may marry with parental or judicial consent, and the court may order minor spouses to attend premarital counseling before solemnization), to express consent to be married (not implied by related facts or subject to fraud, mistake, or undue influence), and to have the legal capacity to be married at the time the marriage is performed (a spouse must be of “sound mind” or have the ability to appreciate the consequences of the act of marriage; voluntary consumption of drugs and/or alcohol may prevent someone from having the necessary capacity to marry). California also requires that spouses-to-be acquire a marriage license from the clerk of the county in which they wish to perform the marriage. No specific type of marriage ceremony is required in California as long as the couples declare their intent to marry in the presence of a person with vested power to solemnize the marriage.
California marriage licenses expire after 90 days from the date of issuance. Upon completion of the marriage ceremony, a marriage certificate will be issued that must also be completed and signed. Thereafter, it must be returned to the county clerk who will then officiate the marriage. California recognizes marriages that were performed in other states and other countries. However, the marriage must have been performed legally (all requisite marriage formalities were observed in the foreign state or country, e.g., the spouses obtained a valid marriage license in the original state). Married people enjoy many rights that unmarried people do not, such as testimonial privilege. Testimonial privilege provides that one spouse may not be compelled by the government to testify against the other spouse, or in the alternative, statements made between spouses in reliance on the sanctity of marriage may not be admitted in court. Married couples are also granted certain tax advantages, such as joint tax return filing.
Recently, the U.S. Supreme Court ruled that marriages between same-sex couples are valid in all states. Thus, same-sex marriages and domestic partnerships are valid in California. However, California does not recognize marriages involving half-bloods, incest, or polygamy (marriage between more than two spouses). California also does not officially recognize common-law marriages (marriages that are implied by the circumstances surrounding the couple, e.g., living together). However, if a common-law marriage was formed in another state that does recognize common law marriages, California may recognize such types of common-law marriage. But these types of situations may be disputed by the spouses. In which case, the court will investigate and consider the unique facts of each situation and decide based thereon.
California does recognize marriages that were made subject to a prenuptial agreement (also known as a prenup). A prenup is an agreement that establishes the terms by which the spouses will distribute their property if the marriage is terminated. For a prenuptial agreement to be valid in California, it must meet several requirements. In establishing these requirements, California has conformed to the Uniform Premarital Agreement Act (UPAA, a standardized model of laws governing prenuptial agreements, which states may voluntarily adopt). Pursuant to California’s statute of frauds provisions, prenups must be commemorated in writing that states the essential terms of the agreement (e.g., the names of the spouses, the property to be distributed).
The agreement must also be accompanied by full disclosure of the assets owned by both spouses. Failure on the part of either spouse to disclose all personal assets could result in a successful challenge to the prenuptial agreement, thereby rendering it void. Also, California law requires that both parties must be afforded at least seven days to review the proposed prenup or seek independent legal advice from their attorney or the law firm of choice with respect to the terms of the agreement. Spouses-to-be may hire their attorney of choice at any stage of marriage or divorce. Neither spouse is required to employ the other spouse’s attorney. However, the state will not provide an attorney at no cost in connection with family law cases, and the spouses are not afforded the right to a jury trial.
The agreement must not have been formed subject to fraud, coercion, or duress (improper threats of physical, financial, or legal action). Such circumstances may form a basis for a valid defense to a prenuptial agreement. The terms of the prenup will be enforced by the court if they are not unconscionably unfair to one spouse, are not contrary to public policy, do not have an adverse effect on child support or child custody, or they are otherwise illegal in some way. The spouses may also form agreements with respect to other marital issues such as separation, postmarital actions, and property division. Each of these agreements may be subject to the same formation requirements and defenses as the premarital agreement. The spouses may change the terms of these agreements by stating the terms for modification in the agreement itself or by executing a new agreement that meets all the same formalities to be recognized by California as a valid marital agreement. However, these agreements are often successfully challenged in family court.
There are three major ways that a marriage can be terminated in California. The three most common are divorce, annulment, and death. Legal separation does not effectively end a marriage, but the spouses may file a notice of legal separation with California and begin to live separately and distribute marital assets while still legally married. California has joined all other states in adopting the modern no-fault standard, which permits a court to grant a divorce without a showing of fault by one spouse (the former fault-based divorce standard required one party to demonstrate that the other party acted in a manner that was consistent with a failed marriage). To begin the divorce process, the party seeking a divorce must merely file a petition in family court and demonstrate that the marriage is “irretrievably broken” at the time that the divorce action is commenced. This generally means that the marriage has become so dysfunctional that it cannot be recovered. A family judge may order that the parties undergo marriage counseling to prove this. Domestic violence committed (e.g., restraining order, child abuse) by either party could form a sufficient basis for the court to determine that a marriage is irretrievably broken.
An annulment means that marriage is voided (canceled) as if it never took place. It is important to note that there is a significant distinction between a voidable marriage (might be voided potentially) and voided marriage (already canceled). Some common bases for annulment include marriages procured by fraud, lack of capacity (e.g., intoxication by drugs or alcohol), prior existing marriage (one spouse is already married), duress (threats of economic and/or physical detriment), coercion, and impotence.
When it comes to the distribution of marital property, California has taken the minority position to become a community property state. This means that absent a contrary agreement between the spouses, the court will attempt to divide all marital assets according to a 50/50 split between the spouses, and each spouse will be awarded ownership rights to assets of relatively equal value. If an asset may not be equally divided, the court may order to divide the proceeds from the sale of the marital assets to be equally divided between the spouses. Effectively, each spouse may assert his or her claim to all marital assets, and the court may deviate from this standard upon a finding of financial necessity. Marital property is presumed to be the property that is acquired by one or both spouses during the marriage that is, in some way, utilized and/or improved by both spouses. For example, if a married couple purchases a home in which they both live, this would be considered marital property. However, if one spouse inherits a piece of jewelry from a relative intended to be a gift for that spouse alone, a court would be unlikely to consider this to be marital property. This presumption may be challenged and reversed upon a showing of good cause relating to the best interests of either spouse or children.
The court may also award a form of spousal support called alimony. Alimony is a court order-based form of financial support in which one spouse (or former spouse) pays support to another. Alimony is based on the idea that one spouse has a need, and the other spouse can pay a support order. Several types of alimony are awarded based on the specific circumstances in every case. A court may grant a support order based on factors such as the duration of the marriage, the finances of both parties, and whether one spouse is beginning a new career. Most types of alimony may be modified upon a showing of a substantial change in the payor spouse’s circumstances, which significantly affects their ability to pay (e.g., involuntary unemployment).
California has been considered by many to be a legally progressive state when it comes to making laws. Thus, California family law continues to evolve rapidly, and those who are considering marriage or divorce may benefit tremendously from awareness of the laws that currently govern in the state. Accordingly, seeking legal advice from an attorney who is well versed in California family law before making decisions relating to marriage or divorce will more than likely provide tremendous benefit in the long term.