What does “No-Fault Divorce” Mean?

In the old days, when a husband or wife wanted to get a divorce, they had to give a reason for this momentous decision or prove why their spouse’s actions (such as adultery, abuse, abandonment, or extreme cruelty) made the marriage no longer possible. This approach to dissolving a marriage frequently led to the types of “ugly” divorces we’ve heard so much about.

In the “no-fault divorce” State of California, that’s all a thing of the past. When one spouse or domestic partner decides the marriage or domestic partnership is over, all they have to do is check a box marked “Irreconcilable differences” and legal proceedings get underway. Under California state law, publicly airing out the bad behavior that may have contributed to the end of the marriage/partnership is no longer necessary. Whatever reason lies behind the dissolution is, in essence, irrelevant to terminating the marriage/partnership.

I still get plenty of clients who come to my office and want to tell me the reasons they feel their marriage/partnership is over. And while it’s good to understand why a person has arrived at such an important, life-changing decision, in the eyes of the law it generally doesn’t matter. In California, the only obligation the person requesting dissolution of marriage/partnership has is that he or she must swear, under penalty of perjury, that the marriage is over. As noted in California Family Code Section 2310(a), you must declare that “irreconcilable differences have led to the irremediable breakdown of the marriage.”

Exceptions that affect the process

But even though the Court isn’t concerned with the specific reasons why you’re filing for divorce/dissolution of domestic partnership, certain exceptions can affect the subsequent process. For example, Family Code Section 3044 sets out a presumption against sole or joint custody of a
child for someone found by a Court to have committed domestic violence against the other party or the child(ren) in the last five (5) years.

Domestic violence can also be a factor in the division of property during a divorce/dissolution of partnership proceeding, with the victim of violence potentially being given more than the traditional 50 percent split of community property.

Another question I usually get is how long my divorce/dissolution of domestic partnership will take. Whether there can be an amicable settlement or there are contested matters, in California, there is a six-month waiting period before the Court will terminate the couple’s marital/partnership status. But even with this mandatory waiting period, two parties in a dissolution action can move forward with all the necessary paperwork and processed by the
Court prior to the end of the six-month waiting period, and while the marriage/partnership will be deemed terminated at the six-month mark, other issues (e.g. child custody, support, property/debt division) can be ordered as promptly as when the Judge signs the Judgment of Dissolution. In other words, important matters don’t have to get put on hold during this
mandatory waiting period.

In general, I believe the “no-fault” provision is a good thing. Two people who no longer wish to remain married shouldn’t be forced to stay together. And requiring that some definitive act or event must occur to justify the divorce (as was necessary in the past) only causes more emotional pain for everyone involved (including children whose own future personal relationships may be
influenced by what they witness from their parents) – a situation that does no one any good.

Are you in need of legal counseling or have any questions about the above topic? The Law Offices of Ian S. Topf offer free consultation on a variety of issues, ranging from family law/divorce, bankruptcy, and estate planning to criminal/DUI matters and landlord/tenant disputes.

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