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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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