California is among the growing list of states that only allow “no-fault” divorces. However, that does not mean that one spouse’s “fault” is irrelevant to the divorce proceedings. In this article, our family law attorneys examine exactly what it means to file a no-fault divorce, and how the various factors that often lead spouses to separate come into play.
What is a “No-Fault” Divorce?
While some other states still recognize one spouse’s fault as grounds for the other spouse to file for divorce, California does not. In these other states, adultery, convictions for certain crimes, and domestic violence are all justification for filing a fault-based divorce.
California, however, is purely a “no-fault” state. This means that all divorce filings must be based upon either:
- Irreconcilable differences, or
- Permanent legal incapacity of either spouse
The law defines an irreconcilable difference as an, “irremediable breakdown of the marriage.” In order to obtain a divorce for irreconcilable differences, you must be able to demonstrate to the court that there are, “substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved.”
Permanent legal incapacity is also referred to as incurable insanity. If one spouse has been medically determined to lack the legal ability to make decisions, the other spouse can seek to dissolve the marriage. The incapacity must exist at the time that the divorce papers are filed and it must continue throughout the divorce proceedings.
Doesn’t it Matter that My Spouse had an Affair?
Instead of being cause to file for divorce, in California, adultery, domestic violence, and other forms improper and illegal conduct are factors that will weigh into the court’s award of property division and spousal support (alimony). Criminal convictions may also factor into the court’s decision on child custody and visitation rights.
What is the Difference between a No-Fault Divorce, Legal Separation, and an Annulment?
While a divorce legally dissolves the spouses’ marriage, a legal separation does not. With a legal separation, the parties remain married, but go through the process of dividing their property and obtaining court orders regarding child custody and visitation. You might consider a legal separation instead of a divorce if:
- You and your spouse are not ready to file for divorce, but want to live separately without having to fight over property and custody rights.
- One spouse relies on the other spouse’s medical insurance (e.g., due to a pre-existing condition).
- For religious reasons, you are unable to file for divorce.
By contrast, an annulment makes it as if the parties were never married in the first place. The annulment process is typically used when one spouse was underage at the time of marriage, he or she lacked the mental capacity to get married, or he or she was forced into marriage by coercion or duress.
Speak with Attorney Wail Sarieh about Filing a No-Fault Divorce
If your marriage is at the end of its life, Orange County family law attorney Wail Sarieh can help you file for no-fault divorce. To schedule your free 30-minute initial consultation, contact Sarieh Law today.
