Divorce vs Legal Separation

Grounds are the Same

Whether deciding to pursue a divorce or legal separation, the basis on which they will be granted is the same. In some locations dissolution or legal separation is only obtainable on the basis of “irreconcilable differences” or “incurable insanity”. In almost every case, divorce or legal separation is sought in accordance with “irreconcilable differences”.

Family Code 2311 and Irreconcilable Differences

According to California Family Code 2311, “irreconcilable differences” exist if there are “substantial reasons for not continuing the marriage and which make it appear the marriage should be dissolved”.

This standard does not mention the culpability of either party in causing “irreconcilable differences,” so therefore California is known by lawyers as a “no fault” state. All of the marital assets are divided equally between spouses. Regardless of any poor behavior on behalf of the parties, each is entitled to a fifty percent distribution of the marital estate. It should be noted that marital assets refer to assets that are only acquired between the date of marriage and the date of separation.

For a divorce or legal separation to be granted because of “irreconcilable differences,” the court has to ensure that after consideration of all evidence is takeninto account, the marital differences are considerable and that there is no reasonable possibility of reconciliation. Even if only one of the parties believes the marriage cannot be saved, a court will still usually rule that the marriage irretrievably broken. But if the judge believes that reconciliation is possible within reason, he or she must grant a 30-day continuance of the proceedings.

Incurable Insanity

The only other ground for divorce or legal separation is “incurable insanity”. Proving “incurable insanity” can be much more costly and difficult because it requires a spouse to provide medical or psychiatric evidence the other spouse is currently incurably insane and was also incurably insane at the time the petition was filed. This must be done in the form of expert testimony provided by a professional.

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