Marriages end for a variety of reasons. Sometimes it is a culmination of issues, or a major issue like infidelity. Many times, couples simply become incompatible. That is, they lack a shared vision about their goals as a couple, and as individuals within the couple. Each might have different priorities—about finances or parenting—which come into conflict with that of the other spouse. Sometimes that priority is an addiction—drugs, alcohol, gambling, sex, and even video games.
A common trait shared by nearly all divorcing couples is a lack of a connection that results in an inability to resolve conflicts. If one or both spouses do not feel seen, heard and validated, negativity abounds and resentment forms. The couple falls emotionally out of touch, physical intimacy stops, and both parties feel isolated and lonely.
At this point, the couple might visit a marriage or family therapist for help. They identify their issues and hopefully learn skills to help them share space, reduce conflict, and reignite the spark. If unsuccessful, separation and divorce are the next steps for many couples.
Do you need a reason to divorce?
Candidly, by the time a client calls our offices, the “whys” about the end of the marriage do not matter much. Apart from situations that involve domestic violence or behaviors that put children at risk, the reason a marriage breaks down has little to no bearing on whether a party can end the marriage, and the outcome of the divorce, under California law.
California is a no-fault divorce state. Any married person can petition for a divorce and very few requirements need to be met to do so. California does have a residency requirement that states you must live in the county where you file for at least six months. That stops individuals from “shopping” for family court judicial officers that they think are more responsive to their issues.
The basis of a divorce, or dissolution of marriage as it is called in the law, is outlined in California Family Code section 2310:
Dissolution of the marriage or legal separation of the parties may be based on either of the following grounds, which shall be pleaded generally:
(a) Irreconcilable differences, which have caused the irremediable breakdown of the marriage.
(b) Incurable insanity.
Irreconcilable differences and California divorce
Very few divorces in California proceed on the grounds of incurable insanity because it requires expert testimony by a medical doctor or psychiatrist to prove in court, and that can become costly. Nearly all dissolutions proceed on the basis of irreconcilable differences.
Irreconcilable differences is a term designed for open-ended interpretation. Indeed, it can mean any of the many issues couples decide to end their marriage.
For a divorce or legal separation to be granted, the court must find that the marriage has broken down to the point that it cannot be salvaged. Only one party must consider the marriage broken down to proceed with the dissolution. At a divorce trial as a matter of formality, the judge asks the parties if the marriage is broken down beyond reconciliation before issuing the divorce decree. By that time, the answer is almost always a resounding yes.
Divorce process and outcomes
Regardless of the reasons why a marriage breaks down, the divorce moves forward and there are numerous issues to sort out. Broadly speaking, these issues fall into three categories:
- Division of marital property, which decides what spouses receive with respect to the assets and debts of the marital estate. Can include the marital home and other real estate, vehicles, businesses, investments, retirement benefits, and other items of value.
- Child custody and visitation, which deals with where children of the marriage will live, the custodial time share between parents, how decisions are made with respect to the health, education, and well-being of the children, and subsequently, child support obligations.
- Spousal support or alimony, which sets forth calculations based on statewide guidelines for a higher earning spouse to make payments to a lower earning spouse to maintain a marital standard of living for a certain time period. This may include attorney fees for the lower earning spouse.
Each of these issues is highly complex with a list of factors and Family Code provisions that affect the outcome of the divorce. We dive deeper into many of these issues in the pages of this website.
Settling the issues in a Divorce
Ideally, couples that are divorcing settle many of these issues themselves. The issues about which couples cannot reach an agreement are the ones that become litigated and decided in a courtroom.
Couples have several different ways to resolve the issues of their divorce.
- Working with a neutral mediator is one option, and every dissolution of marriage involving children has a court mandated mediation session.
- Collaborative divorce is another option that involves neutral parties and other professionals (financial experts and family therapists) designed to settle issues outside of the courts.
- A “traditional” litigated divorce is one that involves the family court system and judicial officers. A family law attorney can help parties negotiate and settle points of disagreement and protect a client’s rights and interests if disagreements must be settled before a judge.
When do reasons for divorce affect the outcome?
It sometimes is surprising to a client in the early stages of a divorce to learn that something like marital infidelity has no bearing on how child custody, property division, and spousal support is settled in the divorce. Adultery is not against the law. However, there are very limited circumstances where marital community property used at or around the time of separation where reimbursement to the community is owed. Both parties owe their spouse a fiduciary duty to act in the best interest of the community. The duty commences at the time of marriage and continues during the marriage and throughout the dissolution process. There can be a claim for reimbursement for the use of community funds on an extra marital affair.
Something like domestic violence or child abuse, or substance abuse that is shown to put children in harms way, can dramatically affect the outcome of a divorce. For example, anyone with a criminal conviction of domestic violence in the past five years is disqualified from receiving spousal support. Also, a finding of domestic violence carries presumptions that child custody and visitation should not be granted.
Final thoughts and summary
The basis for divorce in California almost always involves irreconcilable differences, which can mean any number of issues related to why couples decide to end the marriage. Only one party needs to feel that these issues are granted to proceed with the dissolution. Apart from issues related to domestic violence, abuse, or addictions issues that result in the endangerment of children, the reasons for divorce usually do not affect the results or outcomes.
About the Authors
Jeremy N. Roark has practiced family law exclusively in the Inland Empire for over ten years. He has experience in handling divorce cases and related legal issues, such as child custody and support, asset division, spousal support, custody jurisdiction and domestic violence and restraining orders. Nicole Reilly, AMFT, of Smith Psychotherapy Group in Newport Beach, also contributed to this article.