Divorce is a legal proceeding that dissolves a marriage. Once a divorce is finalized by the court, each party is free to get married again. Divorces might be “no fault” or “fault,” with the majority of states using the “no fault approach.” This means that one spouse can file for divorce and does not need to prove that the other spouse did anything wrong or was at fault for the marriage ending. It is simply enough that one or both parties do not want to be married anymore.
California is a “no fault” state. That means that at no point in the process does either party have to claim or prove that the other person did anything wrong. It is sufficient that one party states the couple no longer gets along. The legal term is “irreconcilable differences.”
It is also not necessary that both parties want to get divorced. Either spouse can decide that they want to file for divorce and there is nothing the other spouse can do to stop it. One spouse might choose not to participate in the divorce proceedings, but the court can still grant a “default” judgment and finalize the divorce.
Is There a Residency Requirement to File a Divorce in California?
Most states have a residency requirement for filing for divorce. That means that one or both parties must have lived in the state for a specific period of time before they can file for divorce in that state and for that state’s laws to apply to them
California requires that someone filing for divorce have lived in the states for six months before filing. They must have lived in the county where they want to file for at least three months. If you do not meet the residency requirement for divorce, you can file for legal separation first. Once sufficient time has passed and you meet the residency requirements you can amend the petition for legal separation to request a divorce.
There are many forms that will need to be completed before filing for divorce. The forms ask for a lot of important information that will impact the outcome of the divorce proceeding and the final court order. The forms ask for basic information about you, your spouse, and the marriage. You will also need to declare all of the property owned by you and your spouse. If you have children there are additional forms that will address support and child custody issues. It is a good idea to have an attorney assist you with the forms.
When the forms are complete and have been reviewed by an attorney, it is time to file them with the court. You will have to pay a filing fee. The court where you will file can tell you the divorce fees in California, but they are established by law and are the same regardless of which county you file for divorce in. You can ask the court for a fee waiver if you cannot afford the fee.
On What Grounds May I File for Divorce in California?
Some states require that the party seeking the divorce prove that the other party is at fault for the marriage ending. In other words, the grounds (or reason) for divorce must place blame on one party for the marriage ending.
Some common grounds for divorce in at-fault divorce states include:
- Adultery
- Desertion, where one spouse leaves for a specified period of time
- Physical or emotional abuse (domestic violence)
- Imprisonment
- Impotence or a physical inability to consummate the marriage
- Drug or alcohol abuse
California is a no-fault divorce state. The spouse filing for divorce does not need to allege any wrongdoing on the part of the other spouse to be granted a divorce. It is sufficient that the parties do not get along anymore or do not want to be married any longer.
The grounds for divorce in California are irreconcilable differences or incurable insanity.
Irreconcilable differences are conflicts that have caused the marriage to break down. The couple does not get along enough to make it worth keeping the marriage alive.
Incurable insanity means that one party was, according to the testimony of medical or psychiatric experts, insane at the time the petition for divorce was filed and remains incurable insane.
It is not necessary that both spouses want the marriage to end. One party can file for divorce and proceed even if the other spouse does not participate. The court will still grant the divorce “by default.”
What Are Some Examples of Irreconcilable Differences?
The term “irreconcilable differences” means that the parties to a marriage do not get along in a way that will sustain the marriage. The marriage is not able to be repaired, or the parties do not want to try and repair it. Essentially, one or both spouses does not want to be married anymore and that is enough to get a divorce in a no-fault divorce state like California.
While irreconcilable differences in a broad term and can include almost anything that makes a marriage not worth fixing, some examples of what might be considered irreconcilable differences include:
- Disagreements over finances, including saving, accumulating debt, budgeting, planning for retirement, etc.
- Differing beliefs regarding parenting or how to raise children, including how best to discipline them.
- Conflict over relationships with extended family members or in-laws.
- Poor communication skills that lead to difficulty problem-solving within the marriage or resolving conflicts over any number of issues that arise over the course of the relationship.
What Are the Alternatives to a Divorce in California?
Divorce is not the only legal option available to spouses who are not happy in the marriage. In California spouses can petition for legal separation, annulment, or summary dissolution.
Legal Separation
A legal separation does not end the marriage, but is a formal agreement that addresses issues like finances, custody, and child support while the spouses live apart. The process is similar to filing for divorce, in that one party files the proper forms with the court and pays the filing fee. There is no residency requirement for obtaining a legal separation in California.
A couple is not required to have a legal separation before they can file for divorce. If they decide during the time they are separated that they do want a divorce, they can amend or change the petition for a legal separation to ask for a divorce instead.
Annulment
In some situations a marriage is actually not legally valid, so an annulment is an option. Annulment means “nullity of marriage” and is an order from the court stating that the marriage is not legally valid and therefore the marriage never actually happened. There are several legal reasons for granting an annulment:
- Incest or bigamy: A marriage is never valid if the parties to the marriage are close relatives, related by blood or if one of the parties to the marriage is already married to someone else.
- Age: One party was under the age of 18 at the time of the marriage
- Prior existing marriage: This is a situation where one party gets married again because their spouse has been gone for five or more years and it was mistakenly thought they were dead.
- Unsound mind: One party to the marriage was not of sound mind and did not understand the nature of the marriage and any obligations included with marriage.
- Fraud: One of the parties deceived the other about something that impacted the deceived spouse’s decision to get married. Common examples are marrying someone for a green card or not disclosing an inability or lack of desire to have children.
- Force: One party forced the other to agree to marriage.
- Physical incapacity: One of the parties was physically incapable of consummating the marriage at the time of the marriage, and there is no indication that the incapacity will be cured.
Summary Dissolution
Some married couples may qualify for summary dissolution in California, which is a faster and easier way to get divorced. Couples who meet the following requirements can qualify for summary dissolution:
- The parties have been married for less than five years.
- The couple does not have any children who were born or adopted during the marriage. They are also not expecting a child.
- The couple does not own any real property (land or building).
- The couple does not rent any real property other than their current residence.
- The parties have not acquired more than $6,000 in debt during the marriage (not including car loans).
- The couple has less than $45,000 worth of community property, which is defined as property acquired during the marriage (not including cars).
- Neither party has separate property worth more than $45,000 (not including cars).
- The spouses have agreed that neither one will ever receive spousal support from the other.
- Both parties have come to and signed an agreement dividing their property and debts (including cars and car loans).
Do I Need a Lawyer to File a Divorce in California?
If you are filing for divorce in California you should contact a California divorce lawyer to assist you with your case. There are many details to consider as you prepare to divide property, plan for the division of financial obligations, and determine child support and custody.
An experienced divorce attorney can assist you with filing the petition, gathering all of the necessary documents and evidence, communicating with the other spouse’s lawyer, negotiating the final divorce order, and representing you in court.
