We all know someone who has been through a divorce, and perhaps you have as well. When one couple chooses that divorce, separation, or annulment is the right option, that decision may be further complicated by additional factors like children involved, real property or assets, and, of course, the emotional, mental, and financial toll that divorce can take.
One tricky thing about divorces is that not all divorces occur in the same way. When a couple chooses to divorce, it could be for a number of reasons, and the way the choose to divorce can vary, too. In fact, many marriages do not take the courtroom approach, known as traditional litigation, that we often seen portrayed on TV.
At San Diego Family Law Attorney, we can guide you through not only divorce in California, but also the many disputes that arise during the process. In this article, we are looking at topics related to divorce in California, including separations, annulments, litigation, and more. Note that this information is generic in nature and should not be considered legal counsel, as only a lawyer with specific knowledge of your case can provide that.
Legally recognized marriages in California
The State of California recognizes two types of marriage-related commitments:
- Marriage, which is available to both heterosexual and same-sex couples
- Registered domestic partnerships (RDP), which is available solely to same-sex couples
These structures both provide a range of similar benefits to the partners or spouses within the State of California. Importantly, however, the federal government as well as some other states do not recognize RDPs, so your benefits within California may not extend beyond the state borders.
In order for a couple to official enter into one of these legal structures, both partners must meet the following:
- Aged 18 or older at time of event (otherwise parental consent is necessary)
- Provide consent
- Have the mental capacity to understand what the relationship entails
- Are not closely-related by blood
- Are not part of a concurrent, legal marriage or RDP
Despite popular myth, common law marriage is not in any capacity recognized by California. In fact, only a dozen U.S. states recognize it in any official capacity.
Pre- and post-nuptial agreements
Deciding to marry or otherwise commit to a person is a decision that one should consider seriously. Part of that decision can be romantic and emotional, but other concerns may touch on financial, logistic, and philosophical responsibilities. At the beginning of such a commitment, it may seem that both partners are on the same page and always will be.
However, with many marriages ending in divorce, it is clear that is not the case. One way to mitigate for these changes is with a pre-nuptial or post-nuptial agreement. If you are interested in pursuing such an agreement prior to or after your marriage or RDP, seek a lawyer who can guide you through the legal requirements.
Requirements for divorce in California
The State of California offers three types of divorce:
- Divorce, which is formally known as a dissolution of marriage
- Legal separation
- Annulments
Though you may already know which path to take, reaching a resolution can be complicated because of emotions, expectations, disappointments, and logistic and financial consequences.
Divorce
Divorcing in California is somewhat easier compared to other states, particularly because it is recognized for its “no fault” divorce. This means that only one person must seek a divorce; both people do not need to agree to divorce. This also means that should one person disagree with the other’s pursuit of divorce, the divorce will still carry on.
However, there are some requirements to divorcing in California:
- One person in the couple must reside in the State of California for at least six months before filing for divorce.
- The party filing for divorce must live in the California county where he or she is seeking the divorce for at least three months before filing for divorce.
In order for two people to divorce, you must align with one of two legal reasons recognized by the State of California:
- Irreconcilable differences. This is, by far, the most common legal grounds for divorce. This term means that the person seeking the divorce does not have to prove that the other person in the marriage or partnership committed an act or otherwise did something to justify a divorce. For this reason, California known as a “no fault” state for divorce. In the eyes of the law, the couple may determine that no specific reason is the cause for divorce, just that it is no longer working.
- Incurable insanity. Much less commonly cited as the reason for divorce, one person in the marriage may seek a legal divorce if the other person is deemed by a medical, or other, professional to be incurable insane. This can be harder to prove, as the person must obtain a legal documentation that testifies that the other person is incurable insane – not temporarily insane – and that the person continues to remain as such.
Legal separation
A legal separation is defined as is two people who separate but do not pursue a divorce or annulment. Because they have not officially ended their legal relationship, neither are able to pursue another legal marriage or RDP. Still, they can decide together, or ask the courts to determine, major decisions related to their separation.
Annulments in California
Annulment is significantly different from divorce. In an annulment, the court formally states that your marriage or domestic partnership is not legally valid, which can be understood as your marriage never officially happened because it was never legal.
Annulments are more difficult to obtain because they require very specific circumstances. For instance, there are two reasons that a marriage is determined invalid at any point:
- If one spouse or partner is already married or in a registered domestic partnership with another, third person, then the current marriage is invalid and not officially recognized as having ever been valid.
- If both people in the marriage or partnership are close blood relatives, the marriage is invalid and is not recognized as ever having been valid.
Other reasons that a court may decide to annul a marriage include:
- Age at time of marriage or registered partnership – if one party had not reached the age of 18 (the age of consent), the marriage may be determined null and void.
- Prior existing marriage or registered partnership – this is inherently different from the bigamy reason for automatic annulment. In this situation, one party may have been absent from his or her previous marriage for at least five years, or perhaps is missing or dead, which may deem the marriage null and void.
- Fraud – wherein one person entered into marriage because of fraudulent actions the other person was attempting to or did successfully commit. Common reasons may be marrying in order to obtain a green card or hiding one’s inability to have children, despite claims otherwise.
- Force – wherein one party forces the other party into the marriage.
- Unsound mind – which is when one party doesn’t have the mental capacity to understand the purpose and nature of a marriage and/or the obligations that accompany such a commitment.
- Physical incapacity – wherein one partner is physically unable to consummate the relationship, and such incapacity has continued.
Dispute resolution during divorce
Once you know your reason for divorce, you must also determine which path to divorce to take. (Note that we are using divorce as a catch-all term that also includes annulments and legal separations.)
Divorce is often complicated by the other people and things that are involved in the relationship. Perhaps you and your spouse agree that a divorce is your best option, but you cannot agree on some major parts of it, like who is responsible for raising your child, and who should have rights to real property you may own. Common situations that are difficult to reach a compromise or solution on include:
- Child and spousal support
- Child custody
- Division of property
Working together to reach your own solution is a best-case scenario, known as default or uncontested divorce, because it can save time and will certainly save money in expensive court and lawyer fees.
However, if you are unable to reach a decision on one or more of your disputes, you may need to consider third-party options for resolving your disputes. The following sections outline common methods, though they are not necessarily in any sort of order.
Traditional litigation
While we often think of this as a “normal” divorce process, it is actually only one type of dispute resolution. For many couples, choosing traditional litigation is the final step, particularly if other types of divorce dispute resolution methods did not work.
Litigation is the specific process of filing and/or responding to a complain via public courts. The goal of litigation is to resolve a dispute. Litigation can occur in various types of California law, both civil and criminal, but within family law, litigation is sometimes used as a means to reach a divorce settlement.
In traditional litigation, each spouse or partner hires a lawyer to represent them and make their case to the judge, who then considers all the information and makes a decision.
The benefits to traditional litigation are usually that it finally decides one or major issues. Unfortunately, the cons are significant: litigation can drag on over months, resulting in expensive lawyer invoices and court fees. It can add to animosity between the divorcing spouses.
Importantly, what the court decides is what goes, even if you feel the decision is unfair. In order for the court to consider a change, you would have to appeal for such consideration, which means another expensive dip into your bank account.
Mediation
Mediation is a generic legal situation in which two parties who cannot reach a resolution around a problem hire a neutral third party to help resolve it. The process is a structured, experiential one that aims to reach a conclusion both parties can compromise on within a short amount of time. Mediation is one method of resolving disputes that arise during divorce proceedings.
Mediators are specifically-trained professionals who help guide the parties to a resolution, but they do not decide the outcome. It is not uncommon for some lawyers to specialize in mediation.
The benefits of mediation are that resolution is intended to happen quickly, so you aren’t dragging through the process for months, and at a small cost compared to other resolution methods. Because both parties seek compromise, you will not receive a judgment on a resolution, as you would in court.
(A similar resolution method, arbitration, is sometimes mistakenly referred to as mediation. Arbitration is most often used in business or commercial settings, not in family law situations.)
Collaborative divorce
California recognizes collaborative divorce as another way to handle your divorce. This is similar to mediation in a couple ways: it is an out-of-court option that aims to resolve disputes and wrap up a divorce faster and more affordably than traditional litigation.
Unlike mediation, however, collaborative divorce requires four parties instead of three: each spouse hires their own lawyer, who likely specializes in collaborative divorce. Each lawyer-and-spouse team can meet individually as well as with the other party. Spouses can also bring in other specialists, such as accountants or child custody advocates, to help provide additional insight. Together, the lawyers and spouses aim for a resolution.
Collaborative divorce can be more affordable than litigation, though you will likely be paying to retain them. If the process moves quickly, it will save you on expensive court fees. The lawyers typically sign a contract that says if a settlement is not reached, the lawyers will withdraw from the case and will not pursue litigation on your behalf.
Whether you’re seeking help with a specific issue or exploring what options you have in the divorce process, San Diego Family Law Attorney is here to help. We are experienced in various methods of and routes to divorce, and we have assisted clients throughout San Diego and the Southern California region. Call us today at 619-610-7425.
