No Fault and Fault Divorce Laws
By Allysyn Overton, Esq.
California is a no-fault divorce state. This means that it does not matter whose fault it is that you are seeking a divorce. Well, it matters to you and your family on an emotional and social level, I’m sure, but it doesn’t matter to the divorce court. The divorce court will still follow laws of equitable division, standard support calculations, and best-interest-of-the-child standards in making orders in your divorce case. There are exceptions, of course. For example, I represented a woman whose husband had been having an affair for years, in her divorce. Her husband spent tens of thousands of dollars on his extra-marital affair, while my client and her husband were still married. We were able to get the divorce court order that he reimburse the community piggy bank every last cent he spent on his mistress during the marriage. Then, the divorce court divided the total of that. This meant that my client received a much larger equalization payment from the property order, because her husband breached his fiduciary duties to his wife, by spending their community money on non-community ventures. There are specific divorce laws against this. These laws require spouses to hold the same fiduciary duties to one another as they would a business partner. I’ve also had many divorce cases in which a person’s domestic violence perpetrations or substance abuse problems meant that that person started with supervised visitation of children. So, behaviors during the marriage can affect some of the orders the divorce court makes, but it will never affect whether the court will order a divorce or not. So long as there are differences that one person states cannot be fixed, the divorce court will likely grant the divorce.
A caveat to this is if the wife is pregnant. Because a child born to a marriage is deemed to legally be the child of the married partners, a court may not want to grant a divorce until after the child is born. It is too dangerous to do a paternity test while the child is still in utero, so waiting until after birth is best. At that time, if either party believes the child is not the husband’s, a paternity test can be done to confirm or deny paternity, and then the divorce court can make its orders about the divorce and any subsequent divorce issues, like child custody and visitation and child support.
All states recognize no-fault divorces, but some states require that the spouses live separately for a designate period of time, before either of them can file for divorce. In California, there is no requirement that the parties live separately before they file for divorce, but a court will wait at least six months and one day from the day the divorce petition was filed to sign the divorce decree. This cooling-off period was designed by the legislature with the idea that the parties might reconcile instead of getting divorced, during this waiting period.
Fault Divorce
Fault divorces are rare. Most states do not even recognize them. In the states that do recognize them, one of the spouses requests that a divorce be granted based on some fault of the other spouse. The most common required grounds for granting a fault divorce are
Infidelity
Abandonment of the other partner
Imprisonment
Incurable sexual disfunction
Cruelty or domestic violence
No state requires the spouses seeking a fault divorce to live apart for a specific period of time, before filing for divorce, like in a no-fault divorce. If the party is able to prove the other was at fault, he/she/they can often gain a larger equalization payment or support payment from the faulting party in their divorce decree. When both spouses in a fault divorce proceeding, prove the other is at fault, the divorce court may decide which one is least at fault and award a better financial outcome to the lesser-at-fault party and a divorce.
Divorce courts do not want to force anyone to stay in a marriage they don’t want to be in, and so, will almost always grant a divorce to the petitioner when requested.
Residency Necessary Before Filing for Divorce
Each state has its own divorce and property laws, so it is super important to determine where you are able to file for divorce. In California, you must be a resident for at least six months before filing for divorce, and a resident of your county for at least three months before filing for divorce. However, Washington, South Dakota, and Alaska do not require their residents to have lived there for any length of time before they can file for divorce. To file in one of those states, you merely need to be a resident of that state at the time you are filing for divorce.
Because divorce proceedings can take up to a couple years, it is best to file for divorce in your county of residence. That way, you can more easily navigate the courthouse and your divorce filings. However, sometimes, it is important to compare the different states’ laws to see which would be better for your circumstances, and file for divorce in that state. For example, California uses a “best interest of the child” standard in making child custody and visitation orders. It may find that a parent should only have weekend visitation for a while. However, in another state, it is standard that each parent has at least two consecutive weeks in the summer time. So, it may be better to file for divorce in that other state so that you can get more visitation. Keep in mind though, that in most situations, the divorce court that is deciding the divorce will also decide other matters related to it, such as property division and custody matters. That includes any changes in divorce orders. So, if you live in California, but file in Utah, hoping for a better outcome there in your child custody matters, you have set yourself up for a lot of inconvenience until your child reaches the age of 18.
Full Faith and Credit Among States
Courts honor the divorce orders of courts in other states. So, if you have a divorce judgment in California, and then move to Indiana, Indiana should honor whatever orders, whether about the divorce itself or issues subsequent to divorce, you obtained in California.
Personal Jurisdiction
Personal Jurisdiction refers to the court having any power over the person about which it is making orders. A court gains personal jurisdiction over someone by that person being in the state when he/she/they is served with court papers, or if that person appears at a court hearing, signs off on having received court papers, or abides by the court’s orders. A lack of personal jurisdiction means that although the divorce decree is valid, other related decisions, such as child custody, support, and property division, may be invalid. A divorce court cannot make orders about a person it does not have personal jurisdiction over.
Consulting a divorce attorney about these matters, or if you are served with divorce papers is always best, especially if you receive them from a foreign state. A divorce lawyer will be best suited to explain to you any jurisdictional issues that are relevant to your divorce, such as where the parties lived, where the children live, and what country or state is involved in your divorce.
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