What is service of process and why do I need proof?

Getting a divorce takes time, money, and patience. One of the ways your patience may be tested is the numerous forms and steps that it takes to properly start the dissolution time clock. Remember, in California, the earliest a divorce can be finalized is six months after the dissolution filing is complete. 

The first step is for one party to file these forms:

• Petition — Marriage/Domestic Partnership (Form FL-100). On this form, you give the court some basic information about your marriage and/or domestic partnership, and you ask for the orders you want the court to make.
• Summons (Family Law) (Form FL-110 | video instructions ).  This form contains important information for you and for your spouse or domestic partner about the divorce or separation process. It contains some standard restraining orders limiting what you can do with your property, money, and other assets or debts

The second step is to serve these forms on the opposing party (or spouse) and both give them a blank response and file something called a Proof of Service of Summons form:

• Fill out the Proof of Service of Summons (Form FL-115).  
• Give the Proof of Service to you. If your spouse/partner was served by mail and Notice and Acknowledgment of Receipt, make sure your server also gives you the Notice and Acknowledgment of Receipt — Family Law(Form FL-117). 

What if you forget to fill out the Proof of Service of Summons?

After service is made, proof of this service must be filed with the court within 60 days of completion of service. However, if the opposing party appears in the action by filing a responsive pleading, this step is not necessary.

If service occurs after the filing of the petition and summons, then a Proof of Service can be filed as a separate document.  There will need to be a caption on this form because the court cannot add to your case file without a caption.   

The filing for dissolution is not complete until this step has been taken. You can contact me at Amanda@gordonfamilylaw.com for more information.

IRS More Aggressive in Divorce Support Agreements Reviews

Bay Area Family Law attorneys should advise all clients that the IRS is getting more aggressive in reviewing support agreements—and this could have tax implications.

In a recent case, a couple divorced over a decade received an IRS notice regarding their support payments and an assertion that part of the support was actually child support over all those years. The implication was that the person paying the support would have to claim income from payments that the IRS deemed should have been child support.  

Speak to a family lawyer if there are complicated tax and divorce planning aspects for your case. You can contact me at Amanda@gordonfamilylaw.com for more information.

What happens if one spouse dies during a divorce?

If one spouse dies during your divorce proceedings, than the entire matter ends and goes to Probate.  The law states that where a party dies before the marriage is dissolved, the dissolution action abates. [In re Marriage of Campbell, 136 Cal. App. 4th 502, 38 Cal. Rptr. 3d 908 (6th Dist. 2006).

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

What date is used to value my assets?

The Court is obligated to value assets as of the date of trial.  Family Code 2552. However, if there is good cause, the parties can request that the Court value the assets at a date following separation but prior to the trial.  Family Code 2250(b).

A good example of when this is appropriate is if you have small business or if there has been a significant period of time between the date of separation and the date of trial.

If you are concerned about the valuation of your assets, you should consider working with a family law attorney to determine what is the best valuation date. Contact me at amanda@gordonfamilylaw.com for more information. 

What is a motion for reconsideration?

If you are unhappy with the Court’s order, you may consider asking the Judge to reconsider. 

Be careful because a motion for reconsideration is only available if you think there were new or different facts that occurred between filing your motion and the Judge’s order.  You can request the Court reconsider the order on it’s own motion.  A motion to reconsider must be brought within 10 days after service of written notice of entry of the order. The Court can at any time reconsider on it’s own motion. Le Francois v. Goel 5 C4th at 1107.  

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