Area of Law:
Divorce may be defined as the legal dissolution of a marriage. Married couples in the United States do not have a legal or a constitutional right to seek a divorce, but states such as California commonly grant divorces because forcing people to stay married would go against public policy.
"No-fault" and "fault" are the two kinds of grounds, or justifications, for divorce in the U.S. A no-fault divorce is one in which the members of the couple do not legally fault, or blame, one another for the divorce. Some examples of the justifications for a no-fault divorce include, “irreconcilable differences,” “irretrievable breakdown of the marriage,” or “incompatibility.”
Some states also allow fault grounds for divorce. Common fault grounds may include the following: cruelty, desertion, adultery, prison confinement, drunkenness or drug addiction, and impotency. California does not have a provision permitting divorce on fault grounds.
California’s first divorce law, passed in 1851, provided the following allowable grounds for divorce: impotence, adultery, extreme cruelty, desertion or neglect, habitual intemperance, fraud, and conviction for a felony. Historians estimate that California had the highest divorce rate in the world during the gold rush. Most of the plaintiffs were women who, because they were in relatively short supply, had numerous options, and divorces were granted very freely. For a comprehensive history of divorce law in California, go to State Grounds for Divorce: A Brief History.
The United States first adopted the concept of a no-fault divorce approximately 40 years ago, and all of the states, except for New York, currently allow some form of it. California became the first no-fault divorce state on January 1, 1970, when the Family Law Act of 1969 took effect after being signed by Governor Ronald Reagan. The Family Law Act allowed people in California to seek a no-fault divorce based on the grounds of irreconcilable differences.
In some states, including California, no-fault is the only acceptable grounds for divorce, even if fault grounds exist within the marriage. California has two grounds upon which a divorce and/or a legal separation may be granted: irreconcilable differences and incurable insanity. If a California court concludes that there are substantial reasons for not continuing a marriage, it may grant a divorce on the grounds of irreconcilable differences.
If a divorce is sought on the basis of incurable insanity, proof must be provided through reliable medical or psychiatric testimony that one of the spouses was incurably insane at the time the divorce petition was filed, and remains so. Divorce on the grounds of incurable insanity does not release the other spouse from support obligations, and the court may order such support for the insane spouse. To review the California Code regarding grounds for divorce, go to CA Family Code Section 2310-2313.
Many states require a “cooling-off period” of separation for a specific period of time before no-fault divorce proceedings can begin. During this time, the couple is required to live apart with the intent that the separation will become permanent. The duration of the separation varies according to state statute. In California, the duration of the waiting period is six months.
Divorce laws regarding the grounds required for a divorce vary widely across the United States. The American Bar Association provides information regarding divorce requirements state by state on their Section of Family Law website. A chart comparing all 50 states, including California, can be found at abanet.org.
*An example of a California Divorce Settlement Agreement can be seen on Free Legal Aid.