2015: Does Fault Matter in a San Diego Divorce or Legal Separation?

San Diego is considered a no fault jurisdiction for divorce and legal separation. Before 1970, legal separation or divorce in San Diego included fault. This could be infidelity or other grounds. If fault was found, then this could be considered in court order. In 1970, California became a no fault state. What this means is that the Court will not consider fault in a divorce for issues of custody and visitation or support or division of assets and debts. Is no fault “fair”? In many contracts between persons, if one party does not fulfill their contractual obligations, then they are not entitled to the benefit of their bargain. Marriage does involve a contract between two parties with terms and conditions upon marriage. In San Diego, whether one spouse complies with the terms of the marriage agreement or not, they are still entitled to obtain the benefits from the marriage regarding assets and division.

There are only two grounds for divorce: irreconcilable differences and incurable insanity. Irreconcilable differences can range from adultery to not wanting to be married any longer. Incurable insanity would require an expert medical opinion. In most cases, misconduct is not considered in a divorce or legal separation case. Generally, fault is not a factor in a legal separation or divorce.

There are some factors which could result in an unequal division of assets and debts or other orders which may not be standard. For example, a spouse who earns less than the other spouse may be entitled to spousal support however if the spouse who is requesting spousal support has been convicted of domestic violence against the other spouse, then the San Diego Superior Court Judge may not order spousal support. Another example is in the equal division of the community property assets. Under California family law, all assets which are considered community property are to be divided equally however there are some notable exceptions. If the Court finds that there is a breach of fiduciary duty, the Court may not divide the assets equally and this could be considered a fault issue. Similarly, if the Court makes the determination that the case is a negative asset divorce, then the Court may also not divide the assets and debts equally and may assign all the assets and debts to one spouse or may unequally allocate based in income ratios. If an asset is omitted and not listed in the preliminary and/or final declaration of disclosure, the Court has the ability to award 100% of the omitted asset to the spouse who did not omit. For custody and visitation, as with spousal support, a conviction and/or finding for domestic violence may result in not having joint legal and/or joint physical custody. There are other fault factors as well.

The law office of Doppelt and Forney, APLC has experience in representing family law clients in their pending litigation. The firm offers up to a 30 minute virtual consultation at no charge in their office which is conveniently located just off the I-15 at the Bernardo Center Drive exit. There is free parking.