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Irreconcilable Differences - or - Incurable Insanity
What is the difference?
When you file for a divorce, whether you are the Petitioner or the Respondent, you mark your reason for the filing. Separation and nullity aside, your remaining choice is dissolution of the marriage and you inform the Court what that is based on:
California: Family Code §2310 - 2313
Irreconcilable differences 2310 (a) are determined by the Court under Family Code §2311 ("...to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved.")
Incurable insanity 2310 (b) requires proof under Family Code §2312 ("...including competent medical or psychiatric testimony, that the insane spouse was at the time the petition was filed, and remains, incurably insane.").
Again...what's the difference?
With the exception of four, all of my clients were/are what the Court considers, long term marriages (over 10 years). The process begins with the Petition. Sometimes it's a little tough, a little tense, until we get to the "reason for..." -PAUSE.
All of my clients took a moment, minute, (or several) of silence and this is where the ice breaker comes in. Some will ask, "Can I think about that for a moment?" Or, "Let me think about that one." Others, after the usual silence, you'll hear a "snicker"; cute -but a snicker none-the-less.
This question is one, if not the best part of my job. Following the immediate reaction, or more direct, reflection; whatever tension is on the surface seems to dissipate. The client(s) let go, open up a bit, and seem to move on without apprehension. It is where we get to know each other and the trust required to move forward in our working relationship has formed.
One client did ask me what proof is needed, how, and if I can follow up with names of psychiatrists. I directed this person to an attorney; they declined and we moved forward.
Which came first?
Sanity is defined by mental balance and good sense. Are you capable of being sane if you are no longer in control of your surroundings and they are unbearable? If you can't stand where, what, how, anyone, or anything you are living around, with, or among and you can't get out of there, which are you and what are you doing...or should I say, feeling?
Does it justify legal incompetence or affect legal circumstances? It is no longer only at home, but also affecting every area of your life; your job, friendships, well being, health, day-to-day relationships and responsibilities. Now what? Insanity...so it seems; a lack of reason or good sense, actions that demonstrate recklessness, absurdity, foolish behavior, and irresponsibility.
Reconcilable means you are capable of bringing back a relationship, solve a dispute, end a quarrel, to persuade somebody or yourself to accept that something undesirable cannot be changed, to make conflicting things consistent, and/or somehow change incompatible to compatible.
If you are not capable of being made to agree or coexist with another, you are incompatible. If any or all issues are incapable of being resolved, they are irresolvable. Once it is determinedly hostile and both parties unwilling to accept compromise, then isn't this where the fine line between implacable and insanity have you jumping rope?
When do you determine, enough is enough?
Joint or sole custody may be awarded based on the best interests of the child and other factors that include 1) the preference of the child, 2) the desire and ability of each parent to allow an open and loving relationship between the child and the other parent, 3) the child's health, safety and welfare, the nature and contact with both parents and 4) the history of alcohol and drug use. Marital misconduct may be considered.
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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