Trailblazing Divorce Laws From California
Modern divorce and family laws in the Golden State and elsewhere in the Union largely came about from the personal experiences of two California men.
27-year-old Ronald Reagan met 21-year-old Jane Wyman on the set of “Brother Rat,” a nondescript B-movie, and the couple married in 1940. By all accounts, Mr. Reagan was quite happy, and according to some sources, he went to great lengths to preserve the relationship, even when he and Ms. Wyman, who had already been divorced twice, started to drift apart in the late 1940s. When she later filed for divorce on the grounds of cruel treatment, the allegations may have stung Mr. Reagan, even though the accusations may have essentially been pro forma. That experience may have been in the back of Governor Reagan’s mind when he signed California’s no-fault divorce law in 1969. Over the next twenty years, most all states passed their own no-fault laws, and the divorce rate skyrocketed in the 1970s and 1980s, permanently changing the makeup of the American family.
Five years after Governor Reagan signed the no-fault law, James Cook began a difficult divorce with his wife that involved several minor children. He petitioned for custody, but at the time, California and most other states had laws that strongly favored mothers in these disputes. As a matter of fact, judges routinely sided with mothers, sometimes with no questions asked. Mr. Cook became an early advocate of what would become the father’s rights movement, and in 1979, California lawmakers passed the nation’s first joint custody law.
No-fault divorce and joint custody are still the preferred methods when dealing with marriage dissolution and child visitation, but they are not appropriate in all cases.
Grounds for Divorce
California is now a pure no-fault state, because adultery, cruelty, abandonment, and other fault grounds are technically no longer available. No-fault divorces are based on irreconcilable differences, which basically means that the spouses can no longer live together as husband and wife. The testimony of one spouse is nearly always sufficient, because if one spouse wants a divorce and does not want to reconcile, the marriage has obviously irretrievably broken down.
No-fault divorce also implies that both parties shared some responsibility, and some spouses may have religious or personal reasons to avoid such a declaration. In such situations, a divorce based on insanity may be an option. According to the Family Code, the spouse must have been diagnosed as insane prior to the marriage and such mental illness must be incurable.
It only takes one spouse to obtain a divorce, both substantively and procedurally. If one spouse cannot be located, the filing spouse may arrange for substitute service. Typically, the filing spouse files an affidavit stating that the absentee spouse cannot be located despite a diligent effort to do so. If the judge approves the affidavit, notice is generally delivered by publishing a legal notice in a local newspaper. If the absent spouse does not respond within about a month, and very few spouses do respond, the filing spouse may obtain a divorce by default.
Custody and Visitation
There is a strong presumption in favor of joint custody in California law. In most cases, joint custody does not mean a 50-50 division physical custody division, though such arrangements are not unheard of if the children are older and the parents live close together. Typically, joint custody means a roughly 70-30 physical custody division; for example, the children “live” with Mother and visit Father on every other weekend, every other holiday, one weeknight, and most of summer vacation.
Joint custody arrangements also divide legal custody, or the right to make important decisions concerning the children, such as what school they attend and what doctor they see. 50-50 arrangements typically do not work in these situations either, because if the parents are at odds, there is no way to break the tie other than going to court. Specific language in the family law orders can avoid this situation. For example, instead of generic language about religious upbringing, the divorce decree may state that “the children are to be raised Jewish.”
Just like no-fault divorce is not appropriate in all situations, joint custody is not always ideal. Sometimes, the children are young or have special needs, and one parent may not necessarily be properly equipped. Other times, there are allegations of domestic violence, and there may be legitimate concerns about the children’s health or safety.
In these situations, most judges allow limited visitation. If the children are young, visitation may begin at a few hours on a Saturday and stairstep up into a traditional arrangement as the children age. As for possible violence, many judges order supervised visitation at the home of a trusted relative or friend, or at a public place. These restrictions can be removed with a motion to modify based on changed circumstances, such as overcoming a substance addiction or completing a court-ordered counseling regimen.
No-fault divorce and joint custody are prominent features in many American divorces, and both these laws began right here. For a free consultation with an experienced divorce attorney in Los Angeles, contact Berenji & Associates. Convenient payment plans are available.
Berenji & Associates
8383 Wilshire Blvd #443
Beverly Hills, CA 90211