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What are the grounds for divorce or legal separation in California?

In California, there are two: Irreconcilable differences - There is no “proof” required to get divorced on this ground. The second one is Incurable insanity (almost never used). The court requires medical proof that one spouse was insane when the divorce or legal separation petition was filed, and proof that the spouse remains incurably insane.

What are the residency requirements for divorce and legal separation?

You or your spouse must have lived in California for six months and in your county for three months before filing a petition there to dissolve your marriage. There is no residency requirement to file for legal separation.

Are there rules that my spouse and I must follow during the divorce process?

Yes. There are temporary restraining orders (rules prohibiting both of you from doing certain things) that go into effect automatically when the divorce process begins. Lawyers refer to these rules as the “ATROS” – Automatic Temporary Restraining Orders. The ATROS are printed on the back of the Summons (a document that goes with all the other divorce/legal separation papers required to start a divorce case).

Under the ATROS, neither of you are allowed to take your minor children out of state without the other spouse’s written permission or a court order. Nor will either of you, in most instances, be allowed to cancel or change the beneficiaries on your insurance policies or transfer property. You also will be required to notify your spouse before any out-of-the-ordinary, extraordinary expenditures are made—and be prepared to account for such expenditures to a judge.

Can I get a legal separation or an annulment instead of a divorce?

Yes. You can get a legal separation or an annulment (also called a nullity) without having lived in California for six months or in your county for three months before filing.

What’s the difference between Legal Separation, Divorce and Annulment?

Dissolution (Divorce)

In a divorce, the court terminates your marital status (declaring you no longer spouses), which then significantly affects your tax filing status, health and life insurance (if you are on your spouse’s insurances as a “spouse,” that terminates and almost always cuts off your insurance benefits), among other effects. At your request, the court will also divide your property and debts, and issue orders relating to child custody, visitation, child support and spousal support, and, if necessary, a restraining order. If you are able to settle the case out of court, most of the time you can get the judge to sign off on a settlement agreement without having to appear in court.

Legal Separation

You may have religious, insurance, tax or other reasons for wanting a legal separation instead of a dissolution (divorce). If you obtain a legal separation, you and your spouse will remain married, but the court can divide your property and debts, and issue orders relating to child custody, visitation, child support and spousal support. Just like a divorce case, you can also settle your legal separation by working with your spouse to come to a settlement agreement.

Annulment

If you are granted an annulment, it is as though your marriage never existed. You may be able to get an annulment if you married when you were a minor without the consent of your parents or guardian, or if certain types of fraud or deceit were involved. Note that fraud and deceit are typically very difficult to prove, and the evidentiary requirements are very high. If you want an annulment you will have to appear in court for a trial.

Is there a simplified process for getting a divorce?

Yes. California has a process called summary dissolution. If you qualify for a summary dissolution, there is less paperwork to file and you will not have to appear in court. You may be eligible for summary dissolution if you and your spouse have agreed in writing to a division of your assets and debts and if the following conditions exist:

  • You have been married for five years or less.
  • You have no children from the relationship.
  • Neither of you own a home or other real estate.
  • The value of all community property amounts to less than $25,000, excluding automobiles.
  • Both spouses must agree to all of the terms of a summary dissolution. Also, either of you can cancel it for any reason before the dissolution.
  • The value of all community property amounts to less than $25,000, excluding automobiles.
  • The value of either party’s separate property amounts to less than $25,000, excluding automobiles.
  • Your combined debt does not exceed $4,000, except for an auto loan.
  • Both of you waive spousal support.

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