GROUND
RULES
What are the grounds
for divorce in California?
In California,
a divorce is officially called a dissolution of
marriage. In a dissolution, the court declares the
matrimonial contract broken. Historically, divorces
could only be granted within specific parameters such as
adultery and mental cruelty. However since the
application of statute no. 2310 in 1970, those
limitations have been removed.
Today, a
divorce is granted on the grounds of "irreconcilable
differences." Irreconcilable differences are any grounds
that the court determines to be substantial reasons for
the marriage not to continue. California was also the
first state to implement the concept of a "no-fault
divorce." In effect, this means that if a married person
wishes to terminate the marriage, he/she can do so, even
if the other person disagrees. Another statute related
to irreconcilable differences is statute no. 2334, where
if it appears that there is a reasonable possibility of
a reconciliation, the court will continue the divorce
proceeding for up to 30 days. After the continuance
ends, the court may enter a judgment of divorce on the
motion of either spouse.
Finally, a
marriage may be dissolved on the grounds of incurable
insanity -- but only if the husband or wife can prove by
competent medical or psychiatric testimony that the
insane spouse was incurably insane at the time of the
marriage.
Definition of terms
In
the legal divorce process, the following terms are used
to describe the parties involved.
-
The spouse
starting the divorce is known as the Petitioner
-
The
document filed in court is know as the Petition
-
The spouse
being divorced is known as the Respondent
-
The answer
to the Petition is the Response
-
Orders for
the dissolution and the terms of it are known as the
Judgment.
Procedure for divorce
-
The
Petition is filed and personally served on the
Respondent.
-
The
Respondent then has thirty days to file a Response.
-
One of the
parties to the dissolution will usually request a
temporary court order by filing for an Order to Show
Cause hearing. It is at this hearing that the judge
will make rulings on temporary child custody,
support, and restraining orders.
-
The
parties then engage in Discovery, which is the
process by which both parties exchange information
and documentation relevant to the divorce. Part of
this procedure involves what is known as the
Preliminary Declaration of Disclosure. This is a
court form in which each party lists all known
community and separate properties. Current income
figures as well as expenses are also listed here.
-
At the end
of the discovery process, the parties and their
attorneys discuss the settlement of the case. If the
case is resolved at this stage, one of the attorneys
will prepare a Marital Settlement Agreement, which
will contain all the terms outlined in the
agreement. This contract is signed by the spouses
and their attorneys. Should an agreement not be
reached on all the terms of the settlement, a trial
will take place.
-
After the
parties sign the Marital Settlement Agreement -- or
after the trial has concluded -- one of the
attorneys will prepare a Judgment of Dissolution of
Marriage. This document contains all of the court's
orders. The judgment is filed and the court mails a
Notice of Entry of Judgment to each attorney.
Legal separation: an alternative to divorce
California does make provisions for legal separation
and/or nullity. However, nullity, which invalidates the
marriage, is difficult to prove. If you don't want to
get divorced -- for religious reasons, for example -- a
legal separation is much easier to obtain than a
nullity. Legal separation is used to divide the property
and to provide for child support and support in cases
where the husband and wife live separately, but remain
married. It proves advantageous in situations where a
divorce would cause one of the parties to lose medical
insurance, veteran's benefits, or social security
benefits. To be legally separated, both parties must
intend that the marriage be over and must act consistent
with that intent.
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