California is a no-fault divorce state. This means that either party in a divorce case is entitled as a matter of law to have a divorce as long as certain jurisdictional requirements are met. Neither party has the ability to prevent the other party from obtaining a divorce unless there are legal grounds for doing so. A party does not need to provide a fault basis for divorce such as adultery or substance abuse.
Irreconcilable Differences is a Grounds for Divorce
A party is entitled to a divorce if there are irreconcilable differences in the marriage. This essentially means that one party has a subjective desire to dissolve his or her marriage. The Court will not look into the issue of fault. If a party wants a divorce, then he or she is entitled to a divorce as long as they meet the basic jurisdictional requirements set forth below. Incurable insanity is also a grounds for divorce, but it is not frequently used despite the fact that many spouses believe that their spouse is insane. This is a medical term that would require medical verification to serve as a grounds for divorce.
Jurisdictional Requirements for Divorce
California law requires that a party be a resident of the County for three months and a resident of the State of California for six months immediately preceding the filing of the divorce case. These jurisdictional requirements or a party is not eligible to file for divorce in California.
Legal Separation as an Alternative to Divorce
A party may file for Legal Separation if he or she does not meet the jurisdictional requirements to file for divorce. The same issues may be resolved in a legal separation action and a divorce action. However, the parties will not become single individuals at the end of a Legal Separation action. The party may initially file an action for a Legal Separation because he or she does not meet the jurisdictional requirements. However, the Legal Separation action can be amended, and converted to a divorce action once the spouse meets the jurisdictional requirements under California law. Some spouses only want a Legal Separation Judgment because they do not want to terminate their marital status. For example, a party may want to maintain medical insurance for his or her spouse even though they do not want to continue living together. A Legal Separation would permit the maintenance of this medical insurance because the parties are not formally divorced. However, the Court can still make all necessary orders relating to child support, spousal support, property division, child custody/visitation, and so on.
Division of Community Property Assets
California law mandates that all property acquired during marriage, unless acquired by gift, inheritance, or devise, is presumed to be community property. The Court is required to divide the “community estate” equally. This means that all community property assets and community property debts need to be divided equally in terms of the overall division. This does not mean that each individual asset or debt needs to be divided equally.
Resolution of Divorce by Agreement or Litigation
Parties have the option to either settle their divorce issues by agreement or litigation. Parties are encouraged to try to settle all issues in their case to not only minimize attorney fees and costs, but to have some control over the issues instead of leaving the decision to a stranger in a black robe. Judges are more than happy to make decisions on any given day for parties who present their case in Court. However, the decision a Judge makes may not be a good decision or even the best decision. Parties need to communicate and cooperate to settle their case. It is unfortunate that too many parties get entangled in very bitter and vindictive litigation, and lose sight of the advantages to settling their case in an expeditious manner. It is very important to select an attorney who will do his or her best to promote settlement of the case. It is also important to have an attorney who is competent to litigate the case if settlement is not possible. The most valuable service that you pay your attorney for is to honestly advise you of the pros and cons of settling or litigating issues. Your attorney must have sufficient experience in family law to be able to have an informative discussion with you as to the best way to resolve your case. Parties are not required to go to Court if they can settle their case amicably. It is also very common these days to hire a private mediator or a retired Family Law Judge to assist in mediation or even to act a privately compensated temporary judge to handle all court hearings that may take place.