Isn't there any easy way to divorce in California?

Many California divorce clients ask if there is an easier way to get a divorce. And the answer is that it depends. Some individuals meet the requirements for a Summary dissolution. The barebones requirements are that you have been married less than 5 years without children and have limited debts and assets.  

The Self Help Section of the California Court's provide the following checklist (See the Courts Page for more info):

DO YOU QUALIFY FOR A SUMMARY DISSOLUTION?

To qualify for a summary dissolution of your marriage you must meet ALL of the following requirements.

You and your spouse:

• Have been married for less than 5 years (from the date you got married to the date you separated);

• Have no children together born or adopted before or during the marriage (and you are not expecting a new child now);

• Do not own any part of land or buildings;

• Do not rent any land or buildings (except for where you now live, as long as you do not have a 1-year lease or option to buy);

• Do not owe more than $6,000 for debts acquired since the date you got married (called "community obligations");

  • Do not count car loans.

  • Click for a worksheet to help you figure your debt.

  • Click for a sample with instructions for the worksheet.

• Have less than $40,000 worth of property acquired during the marriage (called "community property");

  • Do not count your cars.

  • Click for a worksheet to help you figure the value of your property.

  • Click for a sample with instructions for the worksheet.

• Do not have separate property worth more than $40,000;

  • Do not count your cars.

  • Click here for a worksheet to help you figure the value of your separate property.

  • Click for a sample with instructions for the worksheet.

• Agree that neither spouse will ever get spousal support; AND

• Have signed an agreement that divides your property (including your cars) and debts.

  • Click to see a fillable property agreement.

  • Click to see a sample agreement with instructions.

In addition, if you are married, either you or your spouse must have lived in California for the last 6 months and in the county where you file for summary dissolution for the last 3 months. If you do not meet the residency requirement, you can still file for a legal separation but you have to go through the regular legal separation process, or wait until you meet the residency requirements for a divorce.

See http://www.courts.ca.gov/1241.htm for more info.  

Does getting a divorce have any tax benefits?

San Francisco Bay Area family law attorneys may tell you about the tax consequences, but are there any benefits?

Yes. You may be able to deduct the legal fees paid for tax advice related to your divorce and you can deduct any legal fees related to spousal support. 

These deductible fees can be claimed only if you itemize deductions on Schedule A (Form 1040). You must claim the fees as miscellaneous itemized deductions subject to the 2%-of-adjusted-gross-income limit. You can contact me at Amanda@gordonfamilylaw.com for more information.

How soon can I get a divorce?

A divorce in California takes a minimum of six months and one day.  It could take even longer, depending on the unresolved issues. The six month time period begins to run after the you or your spouse has been served with a Petition.You can contact me at Amanda@gordonfamilylaw.com for more information.

How to un-do my divorce?

What happens when you realize that you made a mistake in the papers filed with the Court for a default judgement? Specifically, what can you do to change the Court’s order? Can you alter something that the Court has approved?

This blog post explores the procedural aspects of Family Code Section 2120 -2129 which codify reasons that you can argue to set aside a judgement after the Court has ruled. Grounds for relief include: duress,  perjury, fraud, omissions, and mistake. 

If you feel that something was omitted or misrepresented during your divorce because of information you later learn from your ex spouse and the divorce decree was signed by the Judge, you may want to explore the possibility of asking the court to set aside the judgment. As with most litigation, there is risk associated with asking the court to set aside the judgment and you will want to carefully consider the merits of your case and speak with an attorney about the cost of filing these motions.  

If you decide to go forward and ask the court for relief, procedurally, you will need to ask the Court to re-open the case. This means you will need to file a notice of a motion to set aside a judgment which will include an Application for Order and Supporting Declaration. A motion to set aside a judgment can be prepared similarly to a noticed motion for temporary orders. In most cases, the notice must be personally served on the opposing counsel and party. Important considerations for filing these motions are statutes of limitations (time constraints) and the grounds or claims made. For claims under Family Code 2120, the statute of limitations accrues when a party should have discovered the facts constituting duress, perjury, fraud, omissions, and mistake. For specific time limits, please see Family Code Section 2120. 

Before a court may grant relief, you will need to allege that the grounds for relief materially affected the original outcome of the case. You must also show that you would materially benefit from the relief. You can contact me at Amanda@gordonfamilylaw.com for more information.

What is the date of separation and why is it important?

You may hear family law attorneys talk about the “date of separation.” This blog post goes over the basics of why the “date of separation” is important for your dissolution.  Under California law, the date of separation is used to determine when the “community” ends for the purposes of property division. This means that prior to the date of separation all earnings, property, and gifts acquired are part of the community, and after the date of separation any earnings, property, and gifts acquired are separate property.  

This date of separation is also used to determine spousal support. This is because the total length of the marriage is a factor for determining the amount and duration of spousal support.  This year, the California Supreme Court held that the date of separation is when you are physically living separate and apart. 

Additionally. while the date of separation noted on your Petition for dissolution may be considered by the Court, this is not a binding date and the Court can consider other factors. For example, here are some of the factors that could be taken into consideration when determining the date of separation:

1. When did the parties stop living in the same residence?

2. What type of communication are the spouses having? How frequently is the communication?

3. Are the two spouses eating meals together, running errands, or continuing to see each other socially?

4. Does the spouse who has left the family residence still use the residence as an address for the DMV and voter registration?

5. Have the parties bought property together recently?

6. Do the parties file joint income tax returns?

7. Do the parties attend social functions as if they are still a couple?

8. Has either party told family and friends that they are no longer a couple?

Essentially, you should ask yourself, when did we stop acting like a married couple to our community, family, and friends. It is important to work with a lawyer to determine this date if you think it will be a point of contention during your dissolution.