Divorcing? Here are the legal documents you need.

Divorce can be incredibly stressful. Whether you are ending a short-term marriage without children or separating after a 20-year marriage with three kids, many families don’t know where to start when it comes to the documents you will need to file for divorce.
Every State has different procedural rules when it comes to divorce. Some of the information in this blog post may not apply to your State or County, and you should visit your local County’s and State’s websites to find more information and determine the specific legal procedure.
Many divorcing families are surprised to learn that most Counties have family law self-help centers that help families learn about which legal forms are required to start the process. This can be a great place to start, but most of these offices can’t give you legal advice on how to fill out the forms.

Here are some non-state specific Agreements that you will need in your divorce:
Marital Agreement: This document outlines:

how you will divide the assets and debts in your marriage,

any spousal support payments,

any child custody terms such as legal and physical custody or visitation, and

any child support terms.

This document can be very important for future questions and should serve as a guide or plan for your family as you dissolve your marriage.

Child Custody Agreement: A child custody agreement outlines primary parenting responsibility for the children and how medical and educational decisions will be made. This Agreement can be written before you hire lawyers or go to Court and can include topics like:

specific schedules,

overnight care of children by a non-parent,

communication with children by phone, text, or email,

who is responsible for paying for transportation costs, school costs, and medical appointments,

conditions for travel outside of the state,

who will take the tax exemption and credit, and

how children will spend the holidays.

A good rule of thumb is the more conflict, the more specific the agreement should be.

Tax Returns: At some point in the divorce process, you will need your tax returns. It’s a good idea to have at least the last two years of tax returns, because the Court, your attorney, or your spouse will inevitably ask for a copy. If you don’t have them, you can get a transcript or copy of your tax returns from the IRS — you can find the instructions on their website ( https://www.irs.gov/uac/Newsroom/Request-a-Transcript-or-Copy-of-a-Prior-Year-Tax-Return ).

Other financial documents: Divorce is stressful — and the money issue is often the worst part. As hard as it may feel, it’s very important to have a good understanding of your finances before and during the divorce process. You will want to know, for example, whether you have life insurance and who is the beneficiary is, what retirement accounts you own, and what the balance on your mortgage is. You should also have a copy of your recent pay stubs and receipts for any major expenses related to your children. Having a clear picture of your finances, especially if there is a big gap between your finances and your soon to be ex’s can only help your case.

Last, while not a legal document, per se, I recommend that you get a new Calendar (online or paper). In the first few months of the divorce process, I believe it’s important to carve out some time for yourself on the calendar. The decision to dissolve your marriage inevitably creates many changes in your schedule, your children’s schedules, and your family’s time together. Even if finances are tight, you can schedule and reconnect with free activities you enjoy, like walking outside, gardening, hiking, and talking on the phone with friends.

You can contact me at Amanda@gordonfamilylaw.com for more information.

What is Nunc Pro Tunc?

Nunc pro tunc is a Latin expression, which means now for then. In general, a court ruling nunc pro tunc applies retroactively to correct an earlier ruling.

In California, the court has discretion in family law matters to order an entry of judgment nunc pro tunc, which makes the order relate back in time to when it should have been entered, to avoid injustice

When a judgment of dissolution was not entered through mistake, negligence, or inadvertence or was not entered as soon as it could have been, the court may order that it be deemed entered as of the date that it originally could have been entered. Family Code § 2346(a).

In order to ask the Court to enter your Judgment as nunc pro tunc, you should create a Declaration explaining to the court what date you want the nunc pro tunc to be effective.  A nunc pro tunc does not have anything to do with the filing, other than establishing the case.  The declaration should indicate the earliest date, for example, 6 months and 1 day from date of service/appearance of Respondent, that the Court had the jurisdiction to enter a termination of marriage order and then state what date you want it actually effective.  

For example if you served the other party on May 1, 2015 earliest date for termination of the marriage would be November 2, 2015 but it is now January 4, 2016 of the following year.  You can ask the Court to enter the judgment as 12-31 of the prior year and explain that you need the order because you have remarried and you need the tax advantages of single filing; or whatever else is the reason.

Here are some other examples: A judgment may be entered nunc pro tunc to a date prior to the death of a party even though (1) no subsequent marriage is involved and (2) a surviving spouse will be divested of rights by such entry of judgment. Waller v. Waller (1970) 3 CA 3d 456, 466.

However, a nunc pro tunc entry of judgment is not okay when it is sought solely to defeat the rights of the surviving spouse and will not preserve any significant rights to the decedent’s estate. Marrige of Frapwell (1975) 53 CA 3d 479, 485.

The court may grant nunc pro tunc entry of a judgment on its own motion or on that of a party to the action. Family Code §2346(b). 

In addition, anyone “whose rights are threatened by a delay which is not his fault” may apply for relief under the court’s authority to grant the remedy on its own motion.  This right has been extended to the putative spouse of one whose previous marriage was not finally terminated at the time of the subsequent marriage, to a child seeking to establish his or her legitimacy and the personal representative of a deceased party.

In no event, however, may a judgment obtained by a contested trial be deemed entered as of a date before the trial. Family Code §2346(d). 

If you are considering using the nunc pro tunc process, you should contact a family law attorney to make sure you are correctly following court procedure. Contact me at amanda@gordonfamilylaw.com for more information.

Divorce Resources and Articles

Clients often ask for divorce resources  - this list includes articles that many client's have found comforting and instructive during a divorce:

When visitation goes awry

Parenting Guidelines Published by the Court

Ten Tips for Divorcing Parents

What are ATROs?

Once you file for divorce and the divorce Petition is served, you must follow the automatic temporary restraining orders (ATROs) printed on the back of the Summons. These ATROs prohibit several actions during the pendency of your divorce unless you and your spouse both agree in writing NOT TO follow the ATROs.

By filing for divorce, you acknowledge and agree that you will not:

1.     Remove your minor children from the state or apply for new or replacement passports on the childrens’ behalf without the prior written consent of each other or an order of Court;

2.     Cash, borrow against, cancel, transfer, dispose of, or change the beneficiaries of any insurance or other coverage, including life, health, automobile and disability insurance for you, your spouse, or your children.

3.     Transfer, encumber, conceal, dispose of any property, real or personal, whether community, quasi-community or separate, without the written consent of each other or an order of Court, except in the usual course of business or for the necessities of life;

4.     Create a non-probate transfer or modify a nonprobate transfer in a manner that affects the disposition of the property subject to the transfer without the written consent of each other or an order of Court. Also, before revocation of a nonprobate transfer can take effect, or a right of survivorship to property can be eliminated, notice of the change must be filed and served on each other.

What is a Lis Pendens?

A Lis Pendens or Notice of Pendency of Action prevents the opposing side in your divorce from encumbering real property in violation of an Automatic Temporary Restraining Order. 
Do you need a Lis Pendens? Only if you have real property that you think may be encumbered during a divorce.

To issue a Lis Pendens, you will need to a the Notice of Pendency of Action with the Court Clerk and then Record that Notice at the County’s Recorder office.  Here are some requirements, a Lis Pendens: (1) must be served on the other party, (2) must be identified in the pleading, (3) must be released at the end of the case.