Brief Legal Insights
(Please Note: These posts are not a substitute for personalized legal advice. Above all, seek experienced counsel.)
|Posted on March 6, 2017 at 11:15 AM||comments (7)|
When you’re wrestling the emotional turmoil of divorce, a chaotic legal process is the last thing you need. After all, divorce is ultimately meant to resolve the situation, not worsen it. In an effort to reduce stress, this post outlines the basics of getting a divorce in California in six steps. Please note that this outline is no substitute for speaking with a lawyer. Without adequate legal representation, you could seriously damage your legal rights to custody, support, and an equitable division of property.
1. First Party Files
a. In order to initiate a divorce, a spouse must decide to end the marriage. When he/she files a petition for dissolution with the court, he/she is legally known as the petitioner.
b. It’s important to note that it’s not necessary for both spouses to agree to file for divorce. Either spouse can decide to seek one, and the other spouse, even if he/she is unwilling, cannot stop the process by simply refusing to participate. If a spouse does not partake in the case, the other spouse will still be eligible to receive what’s known as a “default” judgment. In other words, the divorce will still go through.
2. Second Party Notified
a. Once the petitioner acquires, completes, and files all the required forms (including any local forms necessary), an uninvolved person of at least eighteen years of age personally serves the other spouse (legally known as the respondent) with copies of the paperwork. This third-party fills out a form called a “proof of service” to show that he/she has given the correct documents to the respondent immediately. The petitioner then files the proof of service.
b. Although a spouse is not required to participate in a divorce, he/she does have a right to know about it. This is called “service of process.” The respondent must be informed so, if he/she so chooses, he/she may explain his/her side of the story to the judge before a judgment is made.
c. Once the petitioner files and the respondent is notified, both spouses are bound by Automatic Temporary Restraining Orders.
3. Respondent Files
a. If the respondent chooses to file a response, he/she procures, completes, and files the requisite forms with the court clerk within 30 days of being served. Another uninvolved person over 18 will then provide the petitioner with a copy of the respondent’s court forms by mail. He/she will fill out a proof of service, and the respondent will file the form with the court.
4. Initial Financial Disclosures
a. The parties will exchange financial documents including an income and expense declaration, a schedule of assets and debts, and recent tax returns showing what they own and owe. This process is called “preliminary declaration of disclosure.” This allows both parties to fairly settle assets and debts.
a. In general, if a couple can reach an agreement about their issues, they may not need to go to in front of a judge. If they cannot reach an agreement, they will have to go to court to resolve their disagreements. It follows that, if a couple succeeds in reaching an agreement, they will be able to save time and money. When couples can’t agree, the longer the proceedings drag on...filing fees pile up, court hours build, attorney’s fees rise, and so on.
b. Many months or years can pass from moment the petition is filed until the moment divorce is finalized. During this period, either party may seek relief on certain matters through filing a “Request for Order.” The court will schedule a hearing, wherein a judge may issue “pendente lite” (Latin: pending litigation) orders. These will issue temporary directives for matters like spousal support and child support, while the settlement takes form.
a. To finalize a divorce, the court must approve and sign a judgment. The process of obtaining a judgment depends on whether the respondent files a response and whether the spouses reach an agreement about the terms of the divorce. As stated above, amicable agreements lighten the stress all around. Since this is unfortunately not always feasible, mediation, court hearings, or a trial may be necessary.
b. A marriage cannot legally end in California until at least 6 months after the case is filed and personal service of process (Step 2 above) has been carried out. It goes without saying that a divorce will not finalize on its own: one or both sides must file more papers before that happens.
|Posted on January 30, 2017 at 8:50 PM||comments (0)|
Litigation is costly and time consuming. Especially in family cases, the fight may be harder than you expect. Not only is the financial reality burdensome, but the personal nature of these matters is exhausting. Pendente lite ( Latin for “pending litigation” ) orders exist in order to maintain the status quo—particularly when minors are involved.
As we discussed in our blog post on Automatic Temporary Restraining Orders, couples undergoing divorce proceedings are bound by four restrictions immediately upon filing. These seek to protect both parties’ interests—whether community property or children. When more immediate relief is necessary, pendente lite orders may be sought. They primarily concern the following:
- Child custody and visitation.
- Child and/or spousal support.
- Contrary to what you might expect, separated spouses seeking a divorce are not financially responsible to support one another. An interesting point to note here is that a party may be entitled to pendente lite spousal support, even if the party is not entitled to spousal support when the action is finally determined.
Pursuing a pendente lite order in family law does not hinder either party’s ability to make changes after the fact. The issues will only be formally decided in court, in accordance with the circumstances present at the time of hearing or trial. With that said, a pendente lite order does have the practical benefit of establishing a status quo between the parties regarding shared parenting arrangements, which a court may be reluctant to change later. In short, pendente lite orders can set the stage for permanent (or post-dissolution rulings).
|Posted on January 15, 2017 at 4:00 PM||comments (0)|
How do you know when a marriage has ended? Can you quantify it? If I handed you a calendar and asked you to circle an exact date, could you?
As we know from our website's Family Law page, California is a “no-fault” divorce state. From the moment you’re married, there’s an assumption of community property: everything I make or lose is now everything you make or lose. If that sounds great, remember: debt. When (and if) things go awry, you are not only entitled to half of everything we’ve built together, you’re responsible for half of my mistakes, half of my hardships. Although this approach aims at equity, without proper preparation, it may transform into just the opposite. More to the point of the importance of pre-marital agreements, let’s quickly go over Family Code Section 70, the new rule that could decide the end of your marriage for you.
Consistently over the course of California history, family courts have struggled to determine separation dates. More than a simple marking the end of a relationship, a separation date determines where to draw the legal line through the tangle of community finances. It is crucial for understanding where one spouse’s assets begin and the other’s ends (think income, especially). Prior to Section 70's enactment this year, California courts had decided to paint a “bright line” by precisely defining what constitutes a separation. Through the use of In re Marriage of Davis, courts ruled that spouses must not only have the intent and conviction to end a marriage, but they must also live at separate addresses (61 Cal. 4th 846 ). While this may sound like a positive step towards clarity, there are countless reasons why a couple may want to lead separate lives under the same roof. As Los Angeles Superior Court Judge Lewis identified, these motives may be economic, familial, religious, or so on. "A couple could desire economic circumstances relating to cost of alternate housing, qualification for rent control or government subsidies, or financial hardship causing impaired credit; [there could be] health reasons requiring a specially equipped home or close proximity to required medical care; homeschooling of children; operation of a family business; access to the internet or availability of the family computer; absence during the week but present for weekend care of the couple's children; restricted transportation availability because of limited number of vehicles, or the need to be close to public transportation or employment; [and one mustn’t underestimate] the social stigma of no longer living together; faith-based convictions and fear of adverse religious reactions…necessary transitional requirements to accommodate needs of a couple's children; and victims of domestic violence who may feel trapped to remain in an unsafe relationship" (Honorable Thomas Trent Lewis, Marriage of Davis, 37 FAMILY LAW NEWS, No. 3 ,  at 12). Moreover, there are countless exceptions to the rule; and prior to Section 70, a court would not have been able to divide assets if any of them were at play. Unless a couple intended to separate and fulfilled the requirement of separate housing, their property would not be able to reach a judgment in court.
Section 70 was created specifically to reverse the Davis ruling. Now, all that matters is intent to separate and action to support it. As Judge Lewis’s list demonstrates, ambiguity is necessarily part of the divorce process. If a couple does not stipulate how their end date will be decided in a pre-martial agreement, painful personal details may be used as fodder in the public fight for property. Why complicate an already complicated situation?
|Posted on December 19, 2016 at 6:55 PM||comments (1)|
After the trials of twentieth-century feminist movements, it’s not a leap to suggest that marriage is regarded skeptically today. You need look no further than the U.S. Census Bureau Figure MS-2, which depicts the sharp rise in marital age. Now, when marriage is entered upon, it's not the kneejerk fix-all or rite of passage it used to be. Today, statistics support its definition as a careful partnership reserved for later in life, if at all.
So what are couples doing instead?
According to the National Center for Family and Marriage Research, more Americans are living together unmarried. In 2015, approximately 14% of adults lived with an unwedded partner--an increase of approximately 3% from 2005 and 8% from 1995. This suggests that the stigma against unmarried cohabitation is fading.
The taboo's neutralization is to be celebrated, because it allows people to experience all facets of a relationship before making a lifetime commitment. It encourages couples to marry for more durable reasons than mere social acceptability. With that said, these partnerships do not ensure the protection of assets under the law. If you accrue wealth during your relationship and things go awry, you will not be regarded with the same community property assumption as you would if you were married. In other words, unlike a married couple, who are entitled to an equal share of everything gained from the moment of union, an unmarried couple's assets are not legally protected. Contrary to what many Americans might think, there is no such thing as automatic marriage rights in the state of California. Common law marriage by virtue of cohabitation is a myth.
Common law marriage is only recognized by a small handful of states. Legally, it refers to a marriage between two individuals who have not bought a marriage license or had their marriage solemnized. A state will instead require a few different conditions be met for the couple to be considered married. These requirements vary; but in most states, they involve a precise period of cohabitation, the intent to marry, and the portrayal as a married couple to others.
California banned common law marriage in 1895. According to California Family Code § 306, a marriage is only legal if it is "licensed, solemnized, and authenticated.” This means that a couple must buy a marriage license from the County Clerk, have it solemnized by a Marriage Officiant (e.g. a member of the clergy or authorized individual), and then have it authenticated as an official marriage certificate by the County Recorder. Without completing each step, a couple will not be considered married in the eyes of the law.
There is one major loophole, however.
In 1986, California courts upheld an Alabama common law marriage (In re Marriage of Smyklo). In this instance, a couple married in 1941, divorced in 1953, and remarried under common law in 1957. The ex-spouses lived like a married couple by sharing a bedroom, raising their two children, filing joint tax returns, and entertaining friends in their house together. Under Alabama law, they remarried, even though there was no license or ceremony. After three years of cohabitating, the couple moved to California. They stayed in California from 1960 through 1976 without officially marrying. This lasted until the husband moved to Hawaii, where he eventually married someone else. His wife filed an action to determine whether their marriage was legitimate. Under the "Full Faith and Credit Clause" in Article IV of the Constitution, California courts applied Alabama law, even though it ran contrary to its own code. The clause aims to prevent people from avoiding their legal problems in one state by simply moving to another one. Therefore, California acknowledged the marriage, even though it could not have lawfully happened in-state.
Ultimately, proving a common law marriage can be more difficult that it seems. If a couple married under common law wants to separate, they have to undergo the same divorce process as any other married couple, with the added challenge of applying a clear dissolution process to an ambiguous marriage. Showing marital intention often comes down to one partner's word against the other. Personal intimacies of a couple's life will be facts a judge examines. Without legal protection, chances are you'll be left in the lurch. No fair settlement is guaranteed.
For those readers averse to matrimony: unmarried partnerships can be stipulated by an agreement. Casually known as “palimony," non-marital partners have the right to enforce support or property contracts during separation proceedings. Just as our post on pre-marital agreements argues, it's best to be prepared. Even if you don't have assets or children now, you may down the road. Protect your future by planning ahead.
|Posted on December 12, 2016 at 12:35 AM||comments (0)|
Did you notice those restraining orders hiding on the back of your divorce paperwork? If not, I don’t blame you—they’re easy to miss.
Automatic Temporary Restraining Orders (ATROs) or Standard Family Law Restraining Orders (as they’re now called) are four mutual orders that automatically come into effect when filing for divorce or legal separation. They can be found on the reverse side of the Summons (FL-110), the form notifying an individual (respondent) of his/her partner’s (petitioner) desire to separate. The Summons is filed alongside the Petition for Dissolution (FL-100). Together, these forms legally mark the beginning of the end of a relationship.
Simply, these orders protect children and marital assets. As soon as the petitioner files, the ATROs immediately bind him/her. As soon as the respondent is personally served, the ATROs bind him/her equally. They last the duration of dissolution proceedings, in order to prevent the following:
1. removing children from California,
- This is in line with the “Best Interest Standard,” which directs all decisions about a child to be made with the child’s best possible welfare, safety, and health in mind. The courts want to ensure a child’s stability. This first order guards against abduction by demanding both parents either seek the co-parent’s permission or a court order before moving.
2. meddling with property,
- This order wards against the “transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate.” It ensures neither party utilizes property unfairly. In this sense, "property" refers not only to land, but also to money, tangible things of value, and the right to do what you will with them. As with the above, this order requires written notice or court permission. It demands one spouse give the other at least five days’ notice before any extraordinary expenditures take place. The spouse must also be able to account for the spending in court.
- Interesting exceptions: attorney’s fees and any transactions in the normal course of business. Property may be used to pay counsel, so long as the court and spouse are properly notified; and property may be used in a way that is consistent with either party's spending habits (i.e. if a husband buys and sells diamonds every month for a living, he can continue to do so).
3. tampering with insurance policies,
- Since insurance has such a huge effect on individual lives (e.g. healthcare and financial security), it’s protected. This order forbids “cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage, including life, health, automobile, and disability held for the benefit of the parties and their child or children for whom support may be ordered.”
4. and altering “nonprobate transfers.”
- In its simplest terms, this order bans the creation or modification of a nonprobate transfer in a manner that affects the disposition of property subject to the transfer without the other party’s written consent or a court order. This does not apply to Wills, but it does affect trusts, for example.
These four small rules pack a strong punch. Although they're on the reverse side of an already cramped document, do not ignore them! If they aren't respected, family court can order restitution and lost profits. Sanctions and attorney fees are usually also a part of any enforcement action. In more extreme cases, contempt action may be filed, with the possibility of criminal prosecution to boot.