Monday, March 20, 2017

No one said it was going to be easy

Then end of all things
The thing about law and legal things is that it freaks people out because sometimes (OK, most times) the law is confusing.  Take, for example, a California divorce.  In California, there are two (2) ways to get a divorce.  Under California Family Code section 2310, you can either prove:
  1. Irreconcilable differences, which have caused the irremediable breakdown of the marriage, or
  2. Permanent legal incapacity to make decisions (i.e. the person is crazy).
The thing is that you have seemingly conflicting case laws. In Morgan v. Morgan (1923) 190 Cal. 522, 213 P. 993 the court noted that, "It is not the policy of the law to encourage divorce" whereas in In re Marriage of Greenway (2013) 217 Cal.App.4th 628, 158 Cal.Rptr.3d 364 the court said, "The decision that a marriage is irretrievably broken, for dissolution of marriage based on irreconcilable differences, does not need to be based on objective facts." 

What?! Quotes like "does not need to based on objective facts" have the Joe Friday's of the world bouncing around in their graves. While the courts refuse to out and out say they're pro-divorce, that if it (the courts) are going to not base its decisions on hard-core facts, aren't you encouraging divorce when people are permitted to come up with their own cockamamie facts?!  The bigger problem is, how can anyone know what facts support an irreconcilable difference if no one knows what an irreconcilable difference is?!?

So, what are "irreconcilable differences?  California Family Code section 2311 sates that:
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.  
Uh, did anyone get that?  As it turns out, no one really knows what "irreconcilable differences" are.  In fact, the court in In re Marriage of Walton (1972) 28 Cal.App.3d 114, 104 Cal.Rptr. 472 made an obfuscated point that the legislature doesn't know and sent the decision down to the courts hoping they could figure it out when it noted: 
...the courts must depend to a considerable extent upon the subjective state of mind of the parties.  Indeed, it was the legislative intent that that be a major consideration..."
I suspect, what this all means is that if you want out of a marriage, do what they guy in In re Marraige of Greenway did - throw the kitchen sink at the court and hope something sticks.  Apparently, the petitioner in Greenway  (an old guy in an assisted living facility) wanted out of his marriage in the worst way so he said he wanted his wife to stop interfering with his medical care, that his relationship with his wife had been "bad" for the last 30 years, that he didn't want to live with his wife, that he did not like when she visited him, that he did not think the relationship could be restored, and that he understood a divorce would permanently end his marriage.

So, under Greenway, to get a divorce via irreconcilable differences, you have to show :
  1. That you don't "like" someone (subjective, but let's roll with it)
  2. That your relationship is "bad" (again with the subjective "facts")
  3. That you really, really don't like someone (a bit redundant and subjective, but the courts are good with redundancy and subjective, right?)
  4. That the relationship can't be restored (finally, something a bit more solid)
  5. That you know a divorce will permanently end a marriage
So, there you have it; clear as mud (but apparently, that's how California courts like it when it comes to divorce).  I guess, when all is said an done, your best bet, when seeking a divorce in California, is to tell the court what Lisa Kleypas said when she wrote Blue-Eyed Devil: "Bad divorce?" Hardy asked, his gaze falling to my hands.  I realized I was clutching my purse in a death grip. "No, the divorce was great," I said.  "It was the marriage that sucked."