Fault versus no-fault divorce and jurisdictional issues: Where to file for divorce

No Fault and Fault Divorce Laws

No-Fault Divorce

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 court. The court will still follow laws of equitable division, standard support calculations, and best-interest-of-the-child standards in making orders in your case. There are exceptions, of course. For example, I represented a woman whose husband had been having an affair for years. He spent tens of thousands of dollars on his extra-marital affair. We were able to get a court order that he reimburse the community piggy bank every last cent he spent on his mistress. Then, the court divided the total of that. This meant that my client received a much larger equalization payment from the property settlement, because her husband breached his fiduciary duties to his wife, by spending their community money on non-community ventures. I’ve also had many 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 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 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.

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 a divorce. In California, there is no requirement that the parties live separately before they file, 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 during this time.

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
  • Inprisonment
  • 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, 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. When both spouses prove the other is at fault, the court may decide which one is least at fault and award a better financial outcome to the lesser-at-fault party and a 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, and a resident of your county for at least three months. However, Washington, South Dakota, and Alaska do not require their residence to have lived there for any length of time before they can file. To file in one of those states, you merely need to be a resident of that state at the time you are filing.

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 filings. However, sometimes, it is important to compare the different states’ laws to see which would be better for your circumstances, and file in that state. For example, California uses a “best interest of the child” standard in making custody orders. It may find that a parent should only have weekend visitation for awhile. 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 in that other state so that you can get more visitation. Keep in mind though, that in most situations, the 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 orders. So, if you live in California, but file in Utah, hoping for a better outcome there in your 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 orders of courts in other states. So, if you have a court order in California, and then move to Indiana, Indiana should honor whatever orders 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 court cannot make orders about a person it does not have personal jurisdiction over.

Consulting an attorney about these matters, or if you are served with court documents is always best, especially if you receive them from a foreign state. A lawyer will be best suited to explain to you any jurisdictional issues that are relevant, such as where the parties lived, where the children live, and what country or state is involved.

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