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No Longer a Party in the USA!

Recently it has been reported that Liam Hemsworth has filed for divorce following the breakdown of his marriage to Miley Cyrus. Hemsworth has reportedly hired Laura Wasser as his attorney and filed for divorce in Los Angeles due to irreconcilable differences.

Hemsworth and Cyrus married in December 2018 in Tennessee. Both parties announced their separation on 10 August 2019, following eight months of marriage. It has been reported that the couple had a prenuptial agreement and there is no request for spousal support so the divorce should be finalised quickly.

It is interesting to note the respective differences between Californian and Australian laws in relation to obtaining a divorce.

Time constraints:

In Australia, the Family Law Act requires parties to have been separated for at least 12 months before they can apply for a divorce. Parties can reconcile for up to three months without re-starting the 12-month separation period.  If parties have been married less than two years, there is an additional requirement for the parties to attend counselling and present a counselling certificate to prove that there has been an attempt to reconcile the marriage.

Therefore, in the case of Hemsworth and Cyrus, the parties would not be able to apply for divorce in Australia until they have been separated for 12 months, therefore approximately August 2020, assuming that the pair do not reconcile during that period. They would also need to undertake counselling and obtain a certificate before filing for divorce.

Divorce Process in California:

In California, the person requesting the divorce is the petitioner and the person responding is the respondent. A petitioner files a petition with the Court. The Court will then serve, or present, the petition to the respondent, along with a summons. The purpose of the summons is to inform a respondent to appear in court on a specific date. The respondent then has 30 days to file a response before the Court can enter a default judgement in the other party’s favour.

No Fault Divorce:

Both California and Australia have adopted the principle of no-fault divorce. This means that when granting a divorce, the Court does not consider why the marriage ended, and the only ground for divorce is that the marriage broke down irreconcilably and that there is no reasonable likelihood of the relationship resuming.

Impact of Divorce on a Property Settlement:

In Australia, the granting of a divorce does not determine issues of financial support or property distribution. It simply recognises that the marriage has ended. The divorce will take effect one month after the divorce order has been made. Applications for property adjustment must be made within 12 months of the divorce becoming final.

In contrast, in California the Court can order one party to make spousal support or maintenance payments to the other spouse. California is also a community property state which means that the Court will always equally divide the couple’s marital property unless the situation would be inequitable or unfair.

By Nicholes Family Lawyers

 

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