Welcome to the first blog posting from attorney Keith F. Simpson of the Law Offices of Keith F. Simpson, A Professional Corporation. Today I am going to write about options available to a person who has decided to file for divorce (also known as marital dissolution).
In California, a person has the option of filing a petition with the Superior Court of California for 1) Marital Dissolution (Divorce) 2) Legal Separation or 3) Nullity.
In California, a person may obtain a judgment of Marital Dissolution or Legal Separation on the following grounds: (a) Irreconcilable differences that have caused the irremediable breakdown of the marriage; or (b) incurable insanity. The vast majority of parties filing for divorce choose the former “Irreconcilable differences” as the alleged reason for filing for a judgment of Marital Dissolution. The Court typically makes a finding to the effect that the Irreconcilable differences have led to the “irremediable” breakdown of the marriage. In my experience Courts tend to liberally construe the term “irremediable” breakdown of the marriage and order a judgment of Marital Dissolution so long as it appears that their is no possibility of reconciliation.
You should be aware that California has a residency requirement which must be satisfied prior to a Court entering a judgment for marital dissolution. At least one party must have been a resident in the State of California for six months and a resident in the County where the lawsuit was filed for at least three months prior to the Petition being filed with the Court. In the event neither party can satisfy this residency requirement, the parties may file for a Legal Separation and later (presumably six months) amend the Petition to a filing for Divorce. This will allow a couple who recently moved to California to proceed with filing the lawsuit and obtaining a Divorce Judgment as soon as possible (6 months).
A Legal Separation, unlike Divorce, does require the consent of both parties (unless the respondent does not appear and a default is entered against the respondent). Also, a judgment of Legal Separation does not terminate the parties’ marital status. This will allow a spouse to remain on the other spouse’s health care insurance plan. If a party obtains a Divorce, the other spouse is precluded from remaining on the other spouse’s health care plan. This is a very important consideration which all parties should consider prior to requesting judgment for Divorce.
Nullity is a completely different concept. A judgment of Nullity may only be granted by a Court when a marriage is void or voidable for the following reasons: (a) incest (b) bigamy (c) a spouse was not an adult when married (d) spouse was erroneously thought to be deceased (e) fraud (f) unsound mind (g) force (h) physical incapacity. There is no statutory residency requirement to file a petition for a Judgment of Nullity. There is also no consent requirement between the parties. Finally, a Judgment of Nullity acts to nullify the marriage (as if the marriage never occurred).
Thank you for reading my first blog entry. Please do not hesitate to contact Attorney Keith F. Simpson to further discuss any family law questions you may have at (310) 297-9090. Please also view our website at http://www.simpsonlaw.net or http://www.califdivorce.info