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Divorce
There are
four
legal approaches for spouses who have
decided to terminate or alter their
marriage.
I Dissolution of
Marriage (Divorce)
II Summary Dissolution
III Legal Separation
IV Nullity of Marriage
I Dissolution of
Marriage (Divorce)
A judgment for
Dissolution of marriage may be granted on
the grounds of
1)
Irreconcilable differences, which
have caused the irremediable breakdown of
the marriage, (the most common grounds) or
2)
Incurable insanity (rarely applies).
Moreover, in order to
qualify for a dissolution of marriage, one
of the spouses must have been a resident of
the state for six months and a resident of
the particular county, where the case is to
be filed, for three months prior to the
filing for dissolution.
With respect to the “irreconcilable
differences” grounds, the standard is
generally easy to establish. It is up to
the court to determine, however, if there
are substantial reasons for not continuing
the marriage. If one spouse maintains that
there is no hope of reconciliation and
marriage counseling or assistance from the
court would not save the marriage, then
rarely will the court inquire further as to
the basis for the claimed grounds. Moreover,
California is a no-fault system. As such,
it is not necessary to assign fault or
misconduct to either party in order to move
forward as to dissolving the marriage.
Therefore, pragmatically speaking, the
existence of irreconcilable differences is
rarely a major issue in divorce
proceedings.
In regards to dissolving a marriage based on
incurable insanity, there must be some clear
evidence as to such insanity. Such proof may
be in the form of competent and credible
medical or psychiatric testimony.
II Summary Dissolution
This is a very straightforward procedure
that requires no court hearings or
appearances to conclude the matter. As with
a regular dissolution the case may be
concluded after six month of filing the
petition. Under Family Code Sections 2100
through 2406 certain requirements must be
met before the spouses are able to qualify
for a summary dissolution approach. Among
such requirements are that there no children
of the marriage (nor are there expected
children at the time the joint petition is
filed), the marriage does not exceed five
years, and neither spouse is requesting
spousal support. Other requirements are that
there must be no ownership by either spouse
of real property and there are also minimal
assets and debt amounts allowed, which are
periodically adjusted. The summary
dissolution, unlike a regular dissolution,
requires 100% cooperation and agreement
between the divorcing spouses.
III Legal Separation
Filing for a legal separation is very
similar to filing for dissolution of
marriage with respect to resolving the
issues involved. The same type of orders
for child support, spousal support custody
and visitation of minor children may be
requested. The primary difference is that a
judgment of legal separation does not
terminate the martial status itself. As
such, the parties are still legally married
(although living separately and apart) after
the legal separation is completed. Why
would an individual file for a legal
separation versus dissolution of marriage?
Usually this is due to religious or other
personal reasons. One caveat however, is
that the other spouse may contest a legal
separation approach, which can convert the
legal separation into a regular
dissolution. As such, both spouses must
agree to have a legal separation granted.
With dissolution, however, the other spouse
cannot stop the process or convert the
dissolution into legal separation. In other
words non-agreement by the other spouse as
to having the divorce completed will not
affect whether dissolution of marriage is
granted to the filing spouse after the
statutory six-month period has passed.
IV Nullity of Marriage
When the validity of the marriage itself is
in question, then a party may petition the
court for a judgment of nullity. A nullity
proceeding seeks to establish whether a
valid marriage ever existed in the first
place. Some of the reasons that a marriage
may be found invalid from the beginning are
due to improper licensing, and/or other more
serious issues that render the marriage void
or violable (e.g., incest, bigamy, fraud or
force which induced the marriage or one
party was under the age of consent). If a
marriage is found to be invalid by the
court, then a judgment of nullity will
declare that a valid marriage never existed
between the parties. In contrast, a
judgment for dissolution of marriage
dissolves or terminates a valid marriage.
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“Thank you for your
being consistent with
your explanation of the procedures regarding
the process of my dissolution of
marriage.” G.C.
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