Archive for February 2014

I want to end my marriage, but my spouse says he won’t grant me a divorce.

Posted by Shawn Weber, Attorney at Law, CLS-F*

In California, the grounds for divorce are specifically laid out in the California Family Code, which reads:

“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.”

(Cal. Fam. Code §2310)

    The grounds for divorce of incurable insanity are fairly specific.  In fact, the Court may not grant a divorce based on incurable insanity without proof, “including competent medical or psychiatric testimony, that the insane spouse was at the time the petition was filed, and remains, incurably insane.” (Cal. Fam. Code §2312.)  The requirement for medical testimony means that virtually all divorces (including those where a party really is insane) will be plead on the grounds for divorce of irreconcilable differences.

While grounds incurable insanity are specific and narrowly defined, the grounds for divorce of irreconcilable difference are defined broadly.  “Irreconcilable differences are those grounds which are determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved.” (Cal. Fam. Code §2311.)


Because consideration of specific acts is not allowed in the consideration of the grounds for divorce, the Court is allowed enormous discretion to subjectively determine whether a marriage is irretrievably broken. 
Even though marital misconduct such as affairs, abandonment, abuse or substance abuse may have contributed to the irreconcialable differences, the court is prohibited from allowing evidence of specific acts of misconduct.  “Except as otherwise provided by statute, in a pleading or proceeding for dissolution of marriage or legal separation of the parties, including depositions and discovery proceedings, evidence of specific acts of misconduct is improper and inadmissible.” (Fam. Code §2335.)

“[T]he decision that a marriage is irretrievably broken does not need to be based on objective facts….   For this reason, the code ‘offers no precise definition or guidelines to measure the existence of ‘irreconcilable differences.’ Instead, it simply requires the court to determine there are ‘substantial reasons for not continuing the marriage and which make it appear the marriage should be dissolved.’ [Citation.] ‘The irreconcilable differences ground is purposely broad. It is intended to represent the actual reasons underlying marital breakdowns and at the same time make irrelevant questions of ‘fault’ or misconduct by either party.'”

(In re Marriage of Greenway (2013) 217 Cal.App.4th 628, 651 as cited by Attorneys’ Briefcase [Version 2013.2] FL2013.2 MaSt 196.00.)

The result is that it is very easy to get a divorce.  If a party wants a divorce in the State of California, that person can get a divorce.  Once irreconcilable differences have been plead, it is virtually impossible to oppose the dissolution because the grounds for divorce will have been established.  Although I have seen attempts, I have never seen a successful challenge to the grounds of irreconcilable differences.    In practice, the divorcing party need simply allege that the marriage is irretrievably broken and the court will grant the dissolution of marriage even over the objection of the other party because the grounds of divorce are there.  It is simply not up to the other person to “grant” or to “not grant” the divorce.

For better or for worse, it is very easy to prove grounds for divorce in California.

For more information about the grounds for divorce in the State of California, contact attorney Shawn Weber for a free telephone consultation at 858-410-0166 or visit our website at WeberDisputeResolution.com.

*Certified Specialist – Family Law, The State Bar of California Board of Legal Specialization.

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