Ground for Divorce and Legal Separation
Dissolution and legal separation are two common types of marital actions that couples take. In this post, we will discuss the ground for divorce and separation, statutory residency requirements for these marital actions, whether consent or default from the respondent is necessary, how the judgment will affect each spouse’s marital status and other available orders.
Dissolution and Legal Separation
Ground for Divorce
There are only two ground for divorce in California;
- Irreconcilable differences that have caused irremediable breakdown to a marriage
- Incurable insanity with proof from medical or psychiatric testimony
Irreconcilable differences are the most quoted ground for divorce in almost every petition. According to statute, these are grounds that the courts determine to be reasonable enough to prevent a marriage from continuing and allow it to be dissolved. For these grounds to meet statutory requirements, they must have been marital problems that damaged the relationship to the point of no possible correction or resolution. Usually, at the hearing, the court will listen to both the spouses. If the court determines there is a possibility of reconciliation, the proceeding will continue for no more than 30 days.
Divorce Residency Requirement
California, just like other states, has a residency requirement for a judgment of dissolution to be granted. To file for divorce, at least one of the spouses must have been a resident of the state for 6 months prior to filing the petition. One of the parties must also have stayed in the county from which you are filing the petition for not less than 3 months before the petition. This requirement is mandatory. There is, however, no residency requirement for separation.
New arrivals in California with the ground for divorce have to wait for an additional 6 month waiting period besides the 6-month resident requirement for their marriage to be terminated. This means having to wait for over a year for the termination to be granted. This period can be shortened by filing for a petition for legal separation and then later amend it to dissolution after meeting the residency requirement. The filing date for the amended petition is regarded as the beginning date for the proceedings of divorce.
Legal Separation Judgment Requires Consent or Default
In California a legal separation judgment can be granted under only two conditions;
- Both spouses’ consent
- The petition requested for legal separation, but the respondent fails to appear.
In the event, there is a petition, the respondent is required to appear and file a response that prevents the petitioner from obtaining a judgment of legal separation. The response shows that the respondent does not consent to the judgment.
Effect of Judgment on Parties’ Marital Status
The dissolution of marriage means the parties’ marital status is terminated, and they can remarry effective the date indicated in the judgment. The judgment of separation on its parts means the marital status remains unchanged. However, the parties can file for the subsequent dissolution of the marriage. In case a party has ground for divorce and files for dissolution, they will have to wait for at least 6 months before their marital status can be terminated.
Once the judgment terminating the status is acquired after the 6 months, the status termination date is always the date the judgment is given. The court can postpone this termination to a later time to enable; filing of joint returns for the year or to preserve health insurance coverage for one spouse who is dependent on the other. Similarly, once the 6 months have expired, the court has the power to terminate the marital status pending judgment of other issues in the marital action.
Spouses must understand that the termination date of the marital status is dependent on the attorney. Parties must also understand that;
- The marital status cannot be terminated before 6 months after the court has obtained jurisdiction over respondent
- Marital status termination doesn’t occur automatically just by the expiry of the requisite 6 months. A judgment has to be granted based on the ground for divorce and separation.
(v) Availability of Other Orders
In a divorce or legal separation judgment, the court may make other orders besides the actual dissolution and separation orders. These orders include:
- Property rights
- Spousal support
- Child custody and visitation
- Child support
- Attorney fees and costs
- Restraining orders
- Restoration of former names for a party