Category Archives: Uncategorized

The Petition – Part 6(c) – Void marriages

Certain marriages are void at the start; it’s as if they never happened.  Incestuous and bigamous marriages are void at the outset.  Family Code §§ 2200, 2201.

But just because the marriage “never happened”, it’s still possible that the parties may have acquired the rights of a putative spouse and property acquired during the relationship (what would have been community property if the marriage wasn’t void) can be subject to equal division as quasi-community property.

If you think your marriage is void, be sure to speak to an experienced family law attorney to discuss what rights you (or your putative spouse) may or may not have as it comes to quasi-community property.

The Petition – Part 6(a), (b) – dissolution v. legal separation

You’ve married.  And now you want to get divorced.  Or maybe legally separated.  What’s the difference?

A judgment of dissolution (aka divorce) means the parties are back to being unmarried and can re-marry if they so choose.  Fam. Code § 2300.  If the parties choose to be “legally separated” they cannot re-marry, but they can later enter a judgment of dissolution if they want.  Fam. Code § 2347.

Both a judgment for dissolution or legal separation can address paternity, custody and visitation, child support, spousal support, property division, and attorney’s fees.  The main difference is that in the latter, the parties are still married.  Some people choose that route for religious reasons or to maintain insurance or other financial benefits.

It’s All Your Fault!

You want to get divorced and share a few choice words about your soon to be ex-spouse.  However, the Court only cares about “irreconcilable differences” or “incurable insanity”.  Fam. Code § 2310.  California is a “no-fault” state which means the reasons behind the break-up are less important than the the fact you are breaking up.  However, bad acts are not ignored and will likely implicate the outcome of custody/visitation, support, and property division decisions.  (Each area to be discussed in a subsequent post.)

“Irreconcilable differences” is defined at Family Code Section 2311. Those differences can range from people growing apart all the way to adultery.  One party need testify that the marriage cannot be made right again.

“Incurable insanity” is defined at Family Code Section 2312.  A party needs to show “competent medical or psychiatric testimony” to obtain a dissolution/legal separation on these grounds.

If you want to learn more about the differences between legal separation v. dissolution, be sure to speak to a qualified family law attorney.

Judges Are People Too

California judges are required to abide by the Code of Judicial Ethics.  If Florida has a similar code, the criminal law judge shown in this video may have some explaining to do.

A California judge acting like the one in Florida could be removed for cause.

However, the law provides that a family law litigant can also move to have a judge or commissioner removed if the officer “is prejudiced against a party or attorney or the interest of a party or attorney appearing in the action or proceeding.” Code Civ. Proc. § 170.6.  That does not mean a  party cannot simply ask to remove the judge or commissioner because she doesn’t like or agree with the judge’s ruling.  There are time limits as to when a 170.6 Motion can be filed.  A party does not then get to pick the next judge to hear your case.

If you have questions about appearing before your family law judge or commissioner, be sure to speak to an experienced family law attorney.

Shhhh…. what you share with your attorney is private

Generally speaking, information you share with your attorney is protected by the attorney-client privilege.  Evidence Code § 954.  However, an exception applies if the client wants help committing crime or fraud.  Evidence Code § 956.  In those cases, the information is not protected.  The 956 exception does not cover information shared about past crimes or fraud (i.e. a client talking to his criminal defense attorney).

But what if your lawyer doesn’t know everything?  Lawyers like to ask other lawyers questions.  And some lawyers can (and do) so long as they protect their client’s information.  A new website is up and running for lawyers to ask questions – confidentially.  Click here for a link on the site.

Ford Family Law APC attorneys take their responsibility to their clients seriously.  They protect their client’s information and do not reveal confidential information to unauthorized third parties.  A client should feel comfortable sharing private information with their attorneys.  We respect our clients and believe that enforcing the attorney-client privilege encourages open communication between attorney and client.  This allows us to learn more about you and your case – making us best able to represent you.

Your “friends” are watching…

People today are more and more likely to share things they once kept private.  Or maybe people think it’s okay to share it only with their “friends”.

Dana Snay shared private information that resulted in the loss of her father’s employment law settlement agreement.  Click here for the full story.

The attorney client privilege protects the conversations you have with your attorney (subject to certain exceptions).  If you choose to share your attorney’s advice with the world via Facebook, opposing party may hear about it and opposing counsel may seek to learn more about your conversations under the theory that you have waived the privilege.

In short, when in divorce – keep private matters private.  If you have to think whether or not you should post something (tidbit from your attorney, photo of you drunk on your custody night, or negative information about your soon-to-be former spouse) – don’t post it.

Graying Divorce

Divorce is not first and foremost about reimbursements, support, or community v. separate property.  It is about people.  All kinds of people.  National Public Radio reminded listeners yesterday that that includes Baby Boomers.

The story notes:

“For baby boomers, divorce has almost become, like marriage, another rite of passage. The post-World War II generation is setting new records for divorce: Americans over 50 are twice as likely to get divorced as people of that age were 20 years ago.

But just because it’s more common, doesn’t mean it’s not still painful.”

The full NPR story can be read or listened to here.

The Petition – Part 2 – Statistical Facts – Date of Separation

In Section 2 of the Petition, the Petitioner lists the Date of Marriage and the Date of Separation (“DOS”).  These dates are important and can impact spousal support and the division of community property.  Most people can agree on the Date of Marriage.  But what is the DOS?

Before we answer that question, why is it important to know that date?  A longer marriage is a factor to consider in the length of time that a party may have to pay spousal support.

Also, property acquired (i.e. money earned) during marriage is community property (subject to some exceptions that are beyond the scope of this entry) and therefore subject to equal division.  However, money earned after the date of separation is that person’s separate property.  “The earnings and accumulations of a spouse … while living separate and apart from the other spouse, are the separate property of the spouse.”  Fam. Code § 771 (a).  (emphasis added)

But what does it mean to live “separate and apart”?  The Court’s have said that separation requires not only a parting of the ways with no present intention of resuming marital relations, but also, more importantly, conduct evidencing a complete and final break in the marital relationship.  In re Marriage of von der Nuell (1994) 23 Cal.App.4th 730, 736.  A court must look at both a subjective and objective component.  In re Marriage of Norviel (2002) 102 Cal.App.4th 1152, 1158–1159.

The subjective component examines whether either of the parties harbors the subjective intent to end the marriage.

The objective component examines whether there is objective conduct evidencing and in furtherance of that intent.  Id.

The California Supreme Court will address this very issue later this year in In Re Marriage of Davis (2013) A136858.  Click here for an article on this case.

What objective conduct is the Court looking for?  In In Re Marriage of von der Nuell (1994) 23 Cal. App. 4th 730, though the parties physically separated years before, they a) maintained joint checking accounts, b) acquired joint title in a car, c) spent significant time together, d) went on vacation together, e) sent cards to each other, and f) maintained sexual relations.  Thus, though Wife subjectively decided the marriage would not work, the objective conduct was insufficient to find a date of separation matching that subjective intent.  Even returning to the family home to do one’s laundry may extend the date of separation.  In Re Marriage of Bagary (1977) 73 Cal. App. 3d 444.

Before entering your Date of Separation on your Petition (or Response), talk to an experienced family law attorney.

 

 

 

The Petition – Part 1 – Residency

Where do you live?  That is an important and relevant question when filing for dissolution (less so if requesting a legal separation).  (See previous posting for the difference.)

If you want to divorce your spouse, one of you needs to have been a resident of California for the past six months. You need to have been a resident of the county you file in for the past three months.  If you recently moved, you can use the other person’s county.   Fam. Code § 2320.

If someone does not meet the residency requirement for dissolution, that person may file for legal separation and later amend the Petition when they later meet the residency requirements.

You may wish to talk to an experienced family law attorney before you file your Petition (or Response).

Next up – Statistical Facts (Date of Marriage and Date of Separation).

The Petition – Header – what to Petition for

This blog promised (on December 9, 2013) to ” address other items found in the Petition and Response.”

  • The Petition is available here at the California Judicial Branch website.  (If you wish to end a domestic partnership, please check here.)
  • The Response is here.

Family law proceedings can be adversarial but do not have to be.  The parties are not identified as “plaintiff” and “defendant” as in other civil actions.  Additionally, one party is not versus or vs. the other.  In fact, the law states that the parties are named “Petitioner” and “Respondent” and the action is to be titled:  In re the marriage of _____ and _____.  Fam. Code § 2330.  It is up to the parties if they want to maintain this less than adversarial posture.

The first question one must address (after filling in the parties’ names and the court address) is what is it the person wants:  Dissolution, Legal Separation, or Nullity.

  • At the end of a dissolution proceedings, the parties will have resolved all issues related to support (child and spousal), the custody/visitation of children, the division of community property, and the payment of attorney’s fees.  The parties will also return to the status of unmarried persons.  Fam. Code § 2300.
    • Not everyone knows that a dissolution (or divorce) will end one’s marriage.  Click here for an example.
  • A Legal Separation will address the same substantive areas listed above.  However, the parties are still married; they are not single nor free to marry (until the marriage is dissolved).
    • The grounds for dissolution and legal separation are irreconcilable differences or incurable insanity.  Neither party needs to prove fault.  In fact, absent statutory exception, evidence of specific acts of misconduct are improper and inadmissible.  Fam. Code § 2335.
  • A nullity may be used when the marriage at its inception was void (in other words – the parties could not have been married because of bigamy, incest, or procedural issues).  Nullity proceedings are rare.  For additional information, see Fam. Code § 2200 – 2212.

Before completing either a Petition or Response, you should talk to an experienced family law attorney.

Next up:  Line 1: Residence.