On What Grounds Can a Divorce be filed in California and Does it Matter Who Files?

Law Offices of Daniel S. Williams

Often times attorneys such as myself meet with people for a consultation regarding the filing of a divorce for a person who is totally unfamiliar with how one is able to get divorced in California.  Whether is be in Monterey or San Diego, the entire State of California is a NO FAULT divorce state.  As a Monterey Family Law Attorney, I meet with many people during consultations who are originally from different states, but are in California on military assignment.

In recent years, some states have put "hurdles: into law in the guise of "promoting" marriage, making the divorce process more timely.  For example, one state requires a year separation before the divorce process can starting, and others require marital counseling prior to a divorce process starting.

California is NOT one of these states.  However, there is a misconception about the "six-month rule."  The six-month rule simily states that the marriage can NOT be adjudicated dissolved until six months have passed since the summons and petition was served upon the Respondent.  This simply means that the earliest possible date that the parties to a divorce in California can be restored to the status of "single" is six months from the day the summons and petition were served on the Respondent.    

The initial filing paper is referred to as the "Petition" and the person who files the Petition is the "Petitioner." The Petition and a Summons must be served on the other party who becomes the "Respondent."  The Respondent then would file a "Response and Request for Dissolution of Marriage."  Accordingly, it makes NO difference who files first, as both parties are essentially requesting the Court dissolve the marriage. Often times on post-judgment modifications, attorneys and judicial officers have to refer to paperwork to see who the Petitioner is and who the Respondent is.  Regardless of any future moving papers, the Petitioner will always be the Petitioner and the Respondent will always be the Respondent.

Nevertheless, while there are many different causes for divorce, the fact that California is a NO FAULT divorce state, means that their need not be anything of significance shown for a Court to grand a divorce. The two options for dissolution of marriage are as follows:

1. Irreconcilable Differences:  Irreconcilable differences means things have occurred which have caused an irremediable break down of the marriage.  Irreconcilable differences are those grounds which a party feels are substantial for not continuing the marriage and which make at least one party want the marriage to be dissolved.  It only takes one party to believe that irreconcilable differences are existent.  Thus, if another party does NOT want the divorce, there are no grounds to prevent the party believing irreconcilable differences exist from dissolving the marriage. 
2. Incurable Insanity: While many people may desire to file on grounds that the other party is incurably insane, the truth is that this means of divorce is not practically used, despite it still being a legal option for requesting a dissolution of marriage.  There are several reasons for this, the most notably is the cost in that in order to get a dissolution of marriage on the grounds of incurable insanity, the party alleging incurable insanity must shop upon proof, including competent medical or psychiatric testimony that the insane spouse was at the time the petition or response was filed, was and remains incurably insane. This also may be difficult to prove because of the fact that the testimony required to show someone is "incurably insane" is difficult to secure and presents a malpractice risk to any person who would give such testimony.  Additionally, with advances and de-stigmatization of mental health issues, there are few if any mental health professionals whom would go on record in a court of law and give testimony that a party is incurably insane. 

In short, California is one of the States that provides for the simple reason that someone does not want to be married any longer, as that in and of itself would constitute irreconcilable differences.  If you are contemplating a divorce or going through one, you should not rely on legal advice from anybody other than an attorney.  Clerks of the court are prohibited by law from giving legal advice, and while a friend for family member may have gone through the divorce process in California, the fact remains that each and every case is unique and the division of assets and liabilities, as well as child custody and visitation outcomes very dependent on each cases unique facts.  

Collaborative Divorce -- A Better Option?

Law Offices of Daniel S. Williams

by Daniel S. Williams, Esq.

Often times I am asked what the easiest way to get divorced is and how much will it cost. This is a question that I have found over the years that the client knows the answer better than I could.  Why is this?  After all, I am an attorney and the client is seeking my counsel.

The reason is simple.  How long a divorce will last and how much it will cost depends on how much cooperation and trust is left in the marriage.  In its simplest form, a summary dissolution (a topic for another posting), may be the fastest way to get divorced, but often with children and debt issues, parties do not qualify for a summary dissolution.  

So what is the next best option, one that is better for the parties involved, and helps ease the pain and upset that goes with almost every divorce?  Collaborative Divorce. 

First, one must ask: 

What is Collaborative Law?

Quite simply, it is a legal process enabling couples who have decided to separate or end their marriage to work with their lawyers and, on occasion, other family professionals in order to avoid the uncertain outcome of court and to achieve a settlement that best meets the specific needs of both parties and their children without the underlying threat of contested litigation. The voluntary process is initiated when the couple signs a contract (called the "participation agreement"), binding each other to the process and disqualifying their respective lawyer's right to represent either one in any future family related litigation.

The collaborative process can be used to facilitate a broad range of other family issues, including disputes between parents and the drawing up of pre and post-marital contracts. The traditional method of drawing up pre-marital contracts is oppositional, and many couples prefer to begin their married life on a better footing where documents are drawn up consensually and together. 

How Does Collaborative Divorce Work in California?

Clients and their attorneys are at the heart of a working team which often includes mental health, financial and other professionals as needed to provide information and help clients explore a variety of solutions. The clients don`t sign a settlement agreement until each of them is comfortable with it.  This promotes an atmosphere of trust, and cuts down on the need for discovery, depositions, subpoenas, and other hearings that often can eat away at upwards at the marital equity, and often times leaves parties in debt to creditors in order to pay their legal bills and related expenses.  For example, on a recent case I spent four to five hours going through financial records and assembling them pursuant to a discovery request by an opposing counsel. The time spent preparing this and assembling it pursuant to the discovery request cost my client over $1,000 in legal fees.  The opposing party (by projection) probably billed their client a similar amount in preparing the discovery request and examining it.  Thus, between the parties, it would be fair to say that $2,000 to $3,000 was spent from their assets just to pinpoint one thing, what was the average monthly income of my client who is a small business owner. Contrast that with the collaborative process and the parties would have each brought the documents to a meeting, and I could project within an hour the average monthly income could have been agreed upon.  Thus, the parties could have came to the same needed number and between them spent about $500 total. 

Why is a Mental Health Professional Involved?

This is a question asked most frequently and comes down to a simple old saying: never make important decisions when your upset or emotional.  While the process of Collaborative Divorce is meant to have the parties work together, the fact remains that tough decisions have to be made and as the process continues, often parties relive the good and the bad of the marriage.  This makes parties emotional, and a mental health professional or coach for each party is extremely useful in keeping a party focused on an end goal.  Divorce is upsetting and often people can dig their feed into the ground unwilling to budge because of an aspect that has no bearing on what the law says or how a Court would ultimately treat the issue.  Additionally, a mental health professional can be extremely helpful in preventing the process from breaking down and thus having the divorce proceed as a contested and nasty process. 

If the Process Fails, What is Confidential?

In legality: everything.  In reality: the cat is out of the bag.  While collaborative law is a no hiding of secrets process, and promotes the spirit of working together, in reality, nothing comes out that should not come out in a contested process anyway.  Refer to the financial discovery example above.  Many people fear that if the process fails, the other side will already know everything.  Yes, this is a reality, but this is also life and this is also the law applied.  Parties should look at it more as what ever is said would be said anyway.  What ever is brought to the table, would have come out in discovery.  Again, I refer back to the financial discovery example above. 

Overview of Benefit

• All information is voluntarily shared as soon as possible.
• Good faith efforts to explore options are central to the process.
• Skills are developed which enable parties to handle new issues as they come up.
• Collaborative attorneys work only as settlement specialists, and disputing parties will need to hire other lawyers if any of the parties want to litigate.
• Participants can add neutral experts to their supportive team.
• Clients retain the power to create a resolution that fits their particular needs and priorities.

Check here for updates on all things relating to California Family Law!

Articles and Views to Come Soon!