The simple answer is “yes.” The more detailed answer is: There are only two reasons listed on the California Petition for Dissolution of Marriage:
Irreconcilable Differences or Permanent Legal Incapacity to Make Decisions.
Let’s talk about a situation that I encountered not all that long ago. A woman came to my office for her first consultation with a large envelope of documents and pictures to show me. For ease of reference, let’s call her Angela.
Angela described the photos she had in the envelope as screen shots of text messages from her husband’s phone to another woman, documenting that he had been cheating on her. She also had placed a tracking device in his car, to prove that he had lied to her about his whereabouts while allegedly on a “business trip.” Angela was clear that there was sufficient evidence to prove adultery and she wanted my opinion about whether she was correct. She was obviously angry, hurt, and felt completely betrayed. She wanted the judge in her case to award her more than 50% of the jointly owned property because of her husband’s lies and cheating. First and foremost, Angela needed someone to listen her pain, and validate her shock and broken heartedness, so we took some time together to give her space to do that.
After addressing the emotional heartache she was experiencing, and how it was affecting her children, Angela was ready to hear more about the actual grounds for a divorce. It was important that she felt understood in this process and I didn’t want her to feel judged or criticized for her lack of knowledge of California law. Maybe she had recently moved here from another state where adultery was required to be proven, so her frame of reference was to gather such evidence. (Those other states are known as “fault based” states, and they require specific grounds such as abandonment, abuse, fraud, adultery, etc., that must be proven by sufficient, admissible evidence.)
I explained to Angela that California lists two reasons for a divorce, and the one that is frequently used is “irreconcilable differences.” Essentially this means the two of you do not get along anymore and there’s no way to keep the marriage together. She said she could no longer trust her husband, so yes indeed, she believed they could no longer stay married. I also explained that because California is a “no-fault” state, the judge is prevented from allowing testimony regarding cheating on a spouse to influence the issue of how community property is divided between them. California is a community property state where spouses share equally in all assets and debts acquired during the marriage, with some limited exceptions we will save for another blog.
The other reason for divorce “legal incapacity to make decisions” is rarely used. I explained to Angela that even if she thought this applied, she must have expert testimony to prove this before the judge would grant the divorce. It would also cost more because she would be paying for the expert’s time to testify. If proven, then another person called a “guardian ad litem” would be appointed to represent her husband in order to make the legal decisions on his behalf in the divorce process. This would make the process more complicated!
What about filing for a Legal Separation instead?
Angela also inquired about whether it would be better for her to file for legal separation instead of divorce since she was not really wanting a divorce in the first place. In a few social circles or spiritual communities, the person filing the case does not want any publicly filed document stating he/she/they were requesting a divorce. We also discussed that Angela was covered under her husband’s health insurance coverage at his employment, and how a divorce judgment would terminate her ability to have access to his health insurance benefits which were very important to her. A legal separation action may allow the spouse to maintain current health insurance coverage although many insurance companies have begun to treat a judgment for legal separation the same as a judgment for dissolution of marriage. This means that if you are subject to a judgment of legal separation, you are no longer the dependent of your spouse or partner for purposes of health insurance coverage. Always check with your health insurer for their policies.
Consulting with your own attorney regarding your individual needs is very important. I have worked with cooperative couples who agree to extend the actual termination of the marital status of the divorce to the following year or later. They can also keep the Judgment as a Legal Separation if allowed under your plan until there is access to Medicare benefits to the person who would suffer the loss of benefits. There are lots of options to consider in making these important decisions.
In summary as addressed above, most individuals select “irreconcilable differences” as the reason for their divorce in California because it is the easiest to prove and does not require expert testimony about the other person’s mental capacity.
Angela must have been experiencing a fair amount of anxiety while gathering all the “cheating” evidence against her husband that was unnecessary for the legal divorce process. I will mention however that this information assisted Angela emotionally. Since she knew the truth about her husband’s actions, this influenced her decisions throughout the divorce process.
If you would like to discuss these or other divorce related topics further, please feel free to contact me or one of the other Collaborative attorneys from this website as we can assist you in making the best choices for your situation.
Jeanne M. Browne is a Collaborative family law attorney and mediator practicing in Sonoma County. More information in her bio on the “Find A Professional” page.
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