Dissolution of Marriage:

Dissolution of Marriage

A dissolution of marriage ("divorce") begins in California when either party files a Petition for Dissolution of Marriage with the Family Court. The only grounds for divorce in California are either irreconcilable differences or incurable insanity. Fault is not required to be alleged, or proven; it is not an issue for any purpose whatsoever. To emphasize: adultery, physical abuse, mental abuse, criminal activity, etc. are all irrelevant in deciding whether a court will end a marriage. Such matters are similarly generally irrelevant in dividing property between spouses, and are irrelevant in a court’s decision regarding spousal support, except to the extent the actions of one spouse may impact the other spouse’s inability to support himself or herself.

"Incurable insanity" is a rarely used basis on which to seek a divorce, simply because it does not provide any more relief than a divorce granted due to "irreconcilable differences." Furthermore, "irreconcilable differences" requires no elaborate proof: the mere statement by either party that irreconcilable differences have lead to the irretrievable breakdown of the marriage is sufficient for a court to grant the divorce. Even one party’s claim that the marriage is salvageable is insufficient if the other party insists on ending the marriage—such a disagreement on whether the marriage can be saved in and of itself should constitute "irreconcilable differences."

Upon the filing of the petition, the court will issue a summons (prepared by the petitioner), to be served ("service of process") on the other spouse (the "respondent") together with a copy of the petition. Immediately upon filing the summons, by operation of law, automatic temporary restraining orders go into effect prohibiting the petitioner from changing the beneficiaries of insurance policies, as well as barring the petitioner from transferring, encumbering, etc. any real or personal community property outside the ordinary course of his or her daily life. The automatic temporary restraining orders go into effect as to the respondent immediately upon service of the summons. These orders remain in effect until the end of the case.

The respondent spouse has thirty (30) days from receipt of the petition to respond. The respondent spouse should be certain to address all issues raised by the petitioner, such as any request for support, child custody, attorney’s fees, and allegations regarding community and separate property. If no response is filed, the case will proceed as a "default," case. The court will grant the divorce, and divide the property according to the Petitioner’s proposal, but will make some limited inquiry into whether the proposal presents a fair division of the community assets.

If after due diligence the other spouse cannot be found for service of process, the court may order the summons served on him or her by publication and posting (Bodie v Connecticut 401 U.S. 371, Cohen v. Board of Supervisors 20 Cal.App.3d 2136, CCP §413.30).

It is important to note that in California there is a six (6) month mandatory minimum waiting period before a court will grant a divorce. No divorce will be granted earlier than six (6) months after the summons and petition are served (Family Code §2339(a)), or if a response if filed, no sooner than six months following the appearance of the respondent in the proceeding.

Despite the simple grounds on which to grant a divorce, the process requires mandatory disclosure of financial and property information, and if support is requested, may require the spouse seeking support to make one court appearance in court to obtain "temporary support."

In cases involving marriages of short duration (less than 5 years), limited community property, limited separate property, limited debts, no real property, and no child custody issues, the parties to a divorce may opt for California’s "Summary Dissolution." Both spouses sign the petition and file it with the court requesting a divorce. For more information, contact the Family Law Clerk’s Office or the sponsor of this web site, Roy A. Barry, Esq., for a "Summary Dissolution Information" book explaining the process in greater detail.

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