Divorce, Legal Separation, and Nullity

  1. Divorce

    A Divorce or “Dissolution” action is a proceeding to terminate a valid marriage or domestic partnership. In order to file for a Divorce in California, at least one spouse must have been a resident of the State of California for at least six (6) months and the County in which they are filing for at least three (3) months immediately preceding the filing of the Petition [Family Code section 2320].

    Pursuant to Family Code section 2310, there are two (2) grounds for divorce:

    1. Irreconcilable differences which have caused the irremediable breakdown of the marriage; or
    2. Incurable Insanity.

    Irreconcilable differences” is defined as those grounds which are determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved [Family Code section 2311].

    In other words, your marriage has broken down, and it cannot be fixed.

    In order to prove “incurable insanity,” there must be competent medical or psychiatric testimony that the person was incurably insane at the time the Petition was filed and now [Family Code section 2312].

    In California, there is a mandatory six (6) month waiting period before a court will finalize a divorce. A Judgment of Dissolution of Marriage can only be entered by the Court six (6) months and one (1) day from the date the Respondent was served. The theory is that the parties may reconcile so the court doesn’t want to hastily finalize the divorce if there is a chance that the family unit can be preserved.

  2. Legal Separation

    Grounds for a legal separation are the same grounds required for a divorce [Family Code section 2310].

    There a few major differences between a divorce and legal separation. First, there is no six (6) month/three (3) month prerequisite for filing in a legal separation action [Forster v. Super.Ct. (1992) 11 Cal.App.4th 782, 785-786].

    Second, a Judgment of Legal Separation does not terminate the marriage, so you remain married. Therefore, you can resolve property rights, child custody, visitation, support, etc… but you cannot get re-married. You must have a Judgment of Dissolution of Marriage in order to terminate your marital status and have the ability to remarry.

    Some spouses choose legal separation as an option initially in order to preserve medical insurance that would otherwise be lost when a marital status is terminated.

    Finally, in order for a court to enter a Judgment of Legal Separation, unless it is a default situation, both parties must consent [Family Code section 2345].

  3. Nullity

    While a Dissolution action is an action to dissolve a valid marriage or domestic partnership, a Nullity action is judicial determination that the marriage or domestic partnership is void or voidable and hence not a valid marriage.

    Pursuant to Family Code sections 2200-2201, a void marriage or domestic partnership is predicated on the following:

    1. Incest; or
    2. Bigamy.

    Pursuant to Family Code section 2210, a voidable marriage or domestic partnership is predicated on any one of the following grounds in existence at the time of the marriage:

    1. Petitioner’s age at time of remigration of domestic partnership or marriage;
    2. Prior existing marriage or domestic partnership;
    3. Unsound mind;
    4. Fraud;
    5. Force; or
    6. Physical incapacity.

    To establish a Nullity based on a voidable marriage, the party must prove that one of the above-referenced grounds existed at the time of the marriage. It is often very difficult and costly to prove, especially if you are trying to establish fraud [my prince turned into a frog doesn’t cut it].

There is no minimum residence requirement and no mandatory waiting period.

Newport Family Law & Mediation Group can assist you in evaluating your options when you have decided that you want to dissolve your marriage. It is important to apply the facts and circumstances of your specific case to existing California law in order to determine which path through which you should navigate.

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