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Filing for divorce can be a big step, and decisions around when to file, how to file, and who should file can seem complex.  Before making any decisions, it is important to understand the effects of these choices.  Generally, who files the divorce case does not have serious effects on the outcome, but there are circumstances where these decisions can make a huge difference.  The Ventura divorce lawyers at the Law Offices of Bamieh and De Smeth explain.

Does Which Spouse Files a Divorce Case Affect the Outcome?

In California, all divorces are “no-fault” divorces.  This means that when you get divorced, the “grounds” you claim for the divorce do not deal with either party’s “fault” in causing the divorce.  In other states, courts require you to allege some sort of wrongdoing from the other party.  In those states, if you are not the “victim” of the wrongdoing, you probably cannot file for divorce.  In California, either party can file on no-fault grounds.

When you file for a no-fault divorce in California, instead of accusing the other spouse of adultery, abuse, abandonment, or other grounds for a fault divorce, you merely claim that you and your spouse have “irreconcilable differences” and cannot continue to be married.  Because this type of divorce accuses that there is something wrong with the divorce not with the other spouse, either spouse can file, and the effect should be the same.

Courts typically do not change the outcome of the case based on which spouse files.  The only time that the outcome might be different is if the respondent does not come to court.  This is known as a “default divorce.”  In these cases, the spouse who doesn’t respond to the case doesn’t come to court and doesn’t participate in the case at all.  When this happens, the party who filed for divorce usually goes uncontested, meaning that the court might be more willing to grant them the assets they ask for asset division, the child custody split they request, and the child support payments they request.

If both spouses work together to file an uncontested divorce, the outcome will also not depend on who files since both parties will typically agree to divorce terms before the case is even filed.

Do Courts Favor the Husband or the Wife in Divorce?

Since California has no-fault divorces, there should be no preference for the husband or wife in court.  As the divorce is based on no-fault grounds and either party has an equal right to file the case, the court should not sway toward one side or the other.  Many people fear that the court is going to favor their spouse because of gender or status and leave them with lower assets or no child custody.  In California, the court defaults to a 50/50 division of the assets under community property rules, and courts prefer to give joint custody of shared children whenever possible.  This means that there should be no reason for the court to prefer one spouse over the other.

Moreover, the rules are all gender-neutral, meaning that neither party should face any prejudice or additional hurdles because they filed for divorce instead of their spouse.  This means that husbands and wives should be treated equally under the law in divorce.  Additionally, many couples seeking a divorce in California are same-sex couples, so the case does not have a husband and a wife the court would be able to discriminate between.  If you do fear that the court is going to discriminate against you, your attorney can help you file your divorce case and protect your rights to equal protection under the law.

Process for Filing for Divorce in California

Understanding how the divorce process works in California will give you some insight into understanding why the party that files does not make a difference.  The first step in a divorce case is to file the case with the court.  This requires filling out forms and submitting your divorce petition to the court.  The petition contains basic biographical info for each party such as their names and addresses.  It also contains info about when the marriage took place, if there are any children from the marriage, and what the goal of the petition is (i.e., divorce or legal separation).

After filing, the petitioner must give the other party notice of the divorce proceedings.  This gives them the chance to appear in court and have their voice heard in the case.  If this is accomplished correctly, both parties will have the ability to appear in court and have their arguments heard regarding the divorce.

There is a 6-month waiting period in every divorce case in California.  During the waiting period, you and your spouse may work with your attorneys to draft agreements dictating the terms of the divorce.  By the end of the 6-month period, you may be able to go to the court with all issues worked out in a divorce agreement (e.g., asset division, alimony, child custody, child support), and the court may be able to grant your divorce quickly.  Otherwise, the court will hold hearings and listen to each party’s arguments at that time, meaning the divorce can take more than 6 months in a contested divorce.

For a Free Consultation on Your Divorce Case, Call Our Ventura, CA Divorce Lawyers

If you are considering filing for divorce, work with our experienced Ventura family law attorneys.  The attorneys at the Law Offices of Bamieh and De Smeth may be able to represent you in your divorce case, file your divorce paperwork, and help represent you through negotiations with your spouse and other divorce proceedings.  For a free legal consultation on your case, call our law offices today at (805) 585-5056.

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The Law Offices of Bamieh & Erickson, PLC

692 E Thompson Blvd
Ventura, CA 93001
(805) 651-3133
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The Law Offices of Bamieh & Erickson, PLC

209 E Anapamu St
Santa Barbara, CA 93101
(805) 861-2363
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