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.