A California divorce is officially called a dissolution of marriage. Under California divorce law, the court declares the matrimonial contract broken. Historically, divorces could only be granted within specific parameters such as adultery and mental cruelty. However since the application of statute no. 2310 in 1970, those limitations have been removed.
Today, a divorce in California is granted on the grounds of “irreconcilable differences.” Irreconcilable differences are any grounds that the court determines to be substantial reasons for the marriage not to continue. California was also the first state to implement the concept of “no-fault divorce.” Under this California divorce law, if a married person wishes to divorce, he/she can do so, even if the other person disagrees. Another statute related to irreconcilable differences is statute no. 2334, where if it appears that there is a reasonable possibility of reconciliation, the court will continue the divorce proceeding for up to 30 days. After the continuance ends, the court may enter a judgment of divorce on the motion of either spouse.
Finally, a marriage may be dissolved on the grounds of incurable insanity under California divorce law — but only if the husband or wife can prove by competent medical or psychiatric testimony that the insane spouse was incurably insane at the time of the marriage.
Definition of terms
In the California divorce process, the following terms are used to describe the parties involved.
- The spouse starting the divorce is known as the Petitioner
- The document filed in court is known as the Petition
- The spouse being divorced is known as the Respondent
- The answer to the Petition is the Response
- Orders for the dissolution and the terms of it are known as the Judgment.
Procedure for California divorce
- The Petition is filed and personally served on the Respondent.
- The Respondent then has 30 days to file a Response.
- One of the parties to the dissolution will usually request a temporary court order by filing for an Order to Show Cause hearing. It is at this hearing that the judge will make rulings on temporary child custody, support, and restraining orders.
- The parties then engage in Discovery, which is the process by which both parties exchange information and documentation relevant to the divorce. Part of this procedure involves what is known as the Preliminary Declaration of Disclosure. This is a court form in which each party lists all known community and separate properties. Current income figures, as well as expenses, are also listed here.
- At the end of the discovery process, the parties and their divorce lawyers discuss the settlement of the case. If the case is resolved at this stage, one of the divorce attorneys will prepare a Marital Settlement Agreement, which will contain all the terms outlined in the agreement. This contract is signed by the spouses and their divorce attorneys. Should an agreement not be reached on all the terms of the settlement, a trial will take place.
- After the parties sign the Marital Settlement Agreement — or after the trial has concluded — one of the attorneys will prepare a Judgment of Dissolution of Marriage. This document contains all of the court’s orders. The judgment is filed and the court mails a Notice of Entry of Judgment to each California divorce attorney.
Legal separation: an alternative to divorce
California divorce law does make provisions for legal separation and/or nullity. However, nullity, which invalidates the marriage, is difficult to prove. If you don’t want to get divorced – for religious reasons, for example – a legal separation is much easier to obtain than a nullity. Legal separation is used to divide the property and to provide for child support and support in cases where the husband and wife live separately but remain married. It proves advantageous in situations where a divorce would cause one of the parties to lose medical insurance, veteran’s benefits, or social security benefits. To be legally separated under California divorce law, both parties must intend that the marriage be over and must act consistent with that intent.
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