Divorce

A judgment of a dissolution of marriage can be granted only on the grounds of 1) irreconcilable differences, which have caused the irremediable breakdown of the marriage or 2) incurable insanity.  Further, in order to qualify for a dissolution of marriage, one of the spouses has to have been a resident of the state for six months and of the county for three months.

“Irreconcilable differences” suggest that the grounds for dissolution are relatively easy to establish.  It is the courts discretion to determine if there are substantial reasons for not continuing the marriage and which make it appear the marriage should be dissolved.  Further, it is not necessary for fault or misconduct by either party to exist to proceed with a dissolution of marriage.  As a practical matter, courts have been very liberal in finding irreconcilable differences and, therefore, their existence is rarely an issue in the proceedings.    

A spouse’s “incurable insanity” is the only other ground for a dissolution of marriage or legal separation.  Unlike a dissolution of marriage, there must be mandatory proof of “incurable insanity.”  Obtaining this proof, such as competent medical or psychiatric testimony, is likely to be more burdensome and expensive. 

o        Summary dissolution –

Summary dissolution is a divorce in its simplest procedure.  No formal court hearings or appearances are required, and a final judgment may be entered within six months after filing of the petition.  However, in order to qualify, certain requirements must be met according to Family Code Section 2400 - 2406:  there are no children as a product of your marriage nor is a child expected, the marriage does not exceed five years, neither you or your spouse own real property, debts by either you or both you and your spouse incurred after marriage do not exceed $4000, you and your spouse own less than $32,000 in assets, neither you nor your spouse want spousal support, and there is a full agreement. 

Nullity of Marriage –

Petitioning for a judgment of nullity should only be considered where the validity of the marriage is in doubt.  A dissolution of marriage terminates a valid marriage whereas a nullity proceeding is maintained on the theory that the marriage was never valid.  In other words, where a dissolution proceeding terminates marital status, a nullity proceeding seeks to inquire whether such status ever existed.

The court will determine whether a marriage was valid or invalid.  A marriage may be invalid from its moment of inception due to formalization procedures (i.e. licensing, authentication) and/or because of other legal impediments that render the marriage void or voidable (i.e. incest, bigamy, induced by fraud or force, one party under the age of consent). 

Legal Separation –

A legal separation is similar to a divorce in terms of the range of issues that are resolved in the case, except that a judgment of legal separation does not terminate the marital status.  A legal separation is an alternative to a dissolution of marriage and is generally sought upon breakdown of a marriage where for religious or other personal reasons both spouses do not want the legal status of the relationship terminated.  You may ask the judge for orders such as child support, spousal support, partner support, custody and visitation, or any orders you are able to obtain through a divorce case. 

Similar to a proceeding for a dissolution of marriage, a legal separation can be granted only on the grounds of irreconcilable differences or incurable insanity.  However, the court may not enter a judgment of legal separation unless both parties consent to the proceeding.  Therefore, if one spouse petitions for a legal separation and the other requests a dissolution, legal separation will not be granted.  Further, the six-months/three-months residence requirement for a dissolution of marriage does not apply to a legal separation proceeding.