The most common and well known method to end a marriage is known as a dissolution. A dissolution is commenced by either spouse filing a Petition and Summons in the Superior Court, along with other ancillary forms that might be necessary based on the particular case. Within the Petition the spouse seeking to terminate the marriage must specify the manner in which the marriage would be terminated.
A dissolution of marriage will both dissolve the marriage itself as well as divide the marital estate. A dissolution of marriage can be obtained in California on grounds of irreconcilable differences or permanent legal incapacity to make decisions. What constitutes irreconcilable differences is very broad. Case law has determined all that is required for the Court to dissolve a marriage based on irreconcilable differences is that there are “substantial reasons for not continuing the marriage and which make it appear the marriage should be dissolved.” [Family Code Section 2311; Marriage of Greenway (2013) 217 Cal.App.4th 628, 651-652.] In other words, if just one spouse believes the marriage to be over and nothing can be done to salvage the marriage, the Court will generally grant the request. Additionally, California is a “no-fault” state and therefore the basis for the irreconcilable differences is not generally relevant. Because California is a no-fault state issues like infidelity are not relevant and will not come up before the Judge.
Keep in mind, terminating the marital status is different then dividing the marital estate. Often those two issues are resolved concurrently, however, in some cases it can take much longer to divide the marital estate so a party might ask the Court to terminate the marital status while the rest of the issues in the case get resolved. Someone might want to terminate the marital status earlier because they want to get remarried to a new partner or for their own personal reasons.
Clients will often ask about the 6-month waiting period to get divorced. This concept is generally misunderstood. The common misconception is that people think they are automatically divorced in 6 months. That is not the case. The 6-month waiting period is the fastest that the marriage can be dissolved, but has nothing to do with dividing the marital estate or finalizing any other issues in a divorce. The 6-month period starts at the time the non-filing spouse is served with the initial pleadings. There is nothing preventing parties from finalizing the entirety of their case before 6 months, but the marital status (i.e. being recognized as single again) cannot happen until the 6 months has passed.
Legal separation is another misunderstood term. People often confuse the idea of being separated from their spouse, whether physically or emotionally, as being legally separated. In reality, in order to be legally separated you must go through the same process as you would with a dissolution and you will not be legally separated until a final judgment is entered in your case.
So what is different in a legal separation as opposed to a divorce? Similar to a divorce, a legal separation will divide the marital estate, thus splitting assets and debts. The Court will also adjudicate the issues of custody, visitation, child support, spousal support and just about every other issue that it would in a dissolution case. Where a legal separation stops short is it does not terminate the marital status. In other words, you can divide the marital estate, get orders for all issues like custody and support but still be recognized as legally married. At this point you might be asking, why not just do a regular dissolution then? The reason is that maintaining your marital status can be necessary in certain situations. The most common situation is when one spouse is covered under the other spouses health insurance. Remaining legally married will allow that spouse to continue to carry that person as a dependent on their health insurance. Other reasons where people may choose a legal separation over a dissolution is for religious reasons, tax reasons, or personal reasons.
What if your spouse asks for a legal separation but you prefer a dissolution? In California only one party must request a dissolution in order to get divorced, consent is not required. The same is not true of legal separation. A legal separation requires both parties to consent. If one spouse files for legal separation and the other files for dissolution, the case will then proceed as a dissolution. If a legal separation case is filed and you want a dissolution, you do not need to file a new case. You can simply include in your response the request for a dissolution instead of a legal separation.
A nullity is an entirely different concept than seeking a dissolution or legal separation. With both of the latter the request is to divide the marital status, obtain Court orders related to issues stemming from that marriage, and in a dissolution, terminate the marital status. Whereas a party seeking a nullity is essentially claiming a valid marriage never existed. Without a valid marriage having existed there is no reason (or ability) for the Court to divide an estate or make any orders.
When addressing whether or not a marriage is valid in seeking a nullity the first question is whether the marriage is “void” or “voidable” – thus resulting in an invalid marriage. A void marriage is one that is invalid on its face (i.e. invalid per se), such as incest and bigamy. Another way of looking at a void marriage is that the facts in which make the marriage invalid should have prevented the marriage from ever existing in the first place. A voidable marriage is one that must be proven. If not proven it will remain a valid marriage. In order to prove a voidable marriage the person making the request must present evidence of any of the following: fraud, force, physical incapacity, unsound mind, a preexisting marriage, under age at the time of marriage. The evidence must demonstrate that it goes to the very essence of the marriage, not simply artificial or on the surface. These cases can be very difficult to prove and thus quite costly.
Clemens | Warren, L.L.P. has handled every type of action that can be commenced in the California Family Court and is ready to answer questions you might have.
