How To Sign California Divorce Papers When Not Living Together

Posted by Tim Blankenship on

Many of our divorce clients do not live together and some even live far apart such as in another state even. So when you are going through a California divorce and need to sign divorce papers it can become very labor intensive  trying to get documents to one another and have all the signatures on the paperwork you need to complete your California divorce case.

Let’s say you are trying to finalize your California divorce and are preparing the divorce judgment forms. Well, there are about 25 or so pages that make up the divorce judgment and most require both of your signatures and many of  the signatures appear on the same page.

So this leaves you with having to do a round-robin with the paperwork. Let me explain. So you sign the paperwork and then mail your original signatures to you spouse to sign the divorce paperwork and then they have to mail it back to you.  And just cross your fingers that nothing gets lost in the mail.

But there is a better way!

With our divorce clients who do not live near each other, we simply send out 2 separate sets of divorce paperwork for them to sign. They each sign different sets of paperwork and turn into us. Then we simply combine all the signatures and stack them together.

So yes, you will have twice as much paperwork by stacking the forms, but it makes it much quicker when we are trying to finalize a divorce case and we don’t have issues of the paperwork getting lost in the mail or waiting for the divorce paperwork to go from us, then to the Petitioner, then to the Respondent and then back to us.

So when you stack the divorce paperwork you would simply have 2 of each signature page of each form. You don’t need to have the entire form duplicated.

Child Support : How To Modify Child Support In California By Agreement

Posted by Tim Blankenship on

Child Support : How To Modify Child Support In California By Agreement

Whenever I get a call from someone who wants to modify child support as part of their California divorce case, I always first start out by asking if their spouse would be in agreement to the modification.

The reason I do this is because there is a very simple way of modifying child support in your California divorce case if you can come to an agreement. This is called filing a Stipulation & Order to modify child support.

Yes, it can be as simple as filing an agreement with the court known as a Stipulation which simply means “agreement”.

It seems people are not familiar with this process and is why I am writing about it today. When most people call about modifying child support the first thing they are talking about is “going to court” by filing a Request For Order which is a motion you file with the court to obtain a hearing to have a judge make a decision on the modification.

So I always ask our clients if they might be able to come to an agreement.

We start by running the numbers through the dissomaster program the court uses to determine child support. I then ask the parties to review the calculation so they can see what the new child support numbers look like.

If the parties can agree on a new child support amount, we simply draft the stipulation, the parties sign it and then we submit it to court for the judge to sign. The stipulations to modify child support will become the new order and supersedes the previous order or judgment in your divorce case.

Of course, you need to make sure to also change or modify your income withholding order as well if that has been filed and served on your employer. If an income withholding order (FL-195) has been filed, we will file both the stipulation to modify child support and the modification of the income withholding order at the same time to speed things up.

If you need assistance with modifying your child support give me a call so we can run the numbers to see what the new child support amount would be. If you and your spouse can come to an agreement on the new amount of child support we will draft the child support modification stipulation.

If you guys do not come to an agreement, we can also help you file a Request For Order to modify child support based upon a change in circumstances which is usually something to do with a chance in income of one of the parties or change in custody and visitation time that would effect the amount of child support to be paid or received.

FL-150 Instructions : When You Need To File The Income & Expense Declaration

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FL-150 Instructions : When You Need To File The Income & Expense Declaration

If you are going through an amicable divorce in California your divorce will be more about paperwork and procedures rather than about a contested divorce with court and trials.

To that end, we discuss all matters of divorce as it relates to exactly that; the divorce paperwork and how to navigate the court procedure during your divorce in California.

When it comes to the FL-150 Instructions for the Income and Expense Declaration there are times when you need to file it with the court and then there are times you do not.

Why do we make this distinction? Basically, when we are helping our clients through an amicable divorce in California, protecting our clients privacy and information is important, especially in this world we live in where identity theft is so rampant.

So why would you want to provide the court an income and expense declaration and file it thus making it public record.

All your finances are laid out on the income and expense declaration. Everything from where you work to how much you make to how you file your taxes. Not to mention an entire list of all your expenses. To me, this information is personal and not something I want as pubic record if I can avoid it.

So when do you and when do you not have to file the income and expense declaration. And, to be clear, you always need to follow the disclosure requirements by completing the income and expense declaration, we are talking about when you have to actually file it.

Here is a video that discusses when you do and don’t need to file your income and expense declaration.

When You Need To File An FL-150 Income & Expense Declaration:

  1. When there are minor children involved – The courts require an income and expense declaration to be file when there are minor children involved. This is because they want to verify the income of the parties to ensure that your child support order meets California’s minimum guideline amount for child support. This applies to default and default with agreement type divorce cases. (See below for exception to this rule)
  2. True Default divorce case – If you have a true default divorce case you need to file your income and expense declaration. A true default divorce case is one where your spouse is not participating at all. Not responding (uncontested) and not going to sign an agreement (default with agreement) You need to file your income and expense declaration when you have a true default also known as a default without an agreement.

When You Don’t Need To File An FL-150 Income & Expense Declaration:

  1. (exception to # 1 above) – If you have minor children and you have an uncontested divorce case, you do not need to file your income and expense declaration. Now, I am talking about an uncontested divorce in a procedural context. What I mean by uncontested divorce is this. One of the parties have filed a petition and the other party has filed a Response. That is the true definition of “uncontested” as a procedural definition.
  2. If you do not have minor children – If no minor children are involved, you do not need to file your FL-150 income and expense declaration. It does not matter if your case is uncontested (response filed) or you have a default with agreement type divorce case.

Remember, we are talking about an amicable divorce in California and discussing procedural aspects here. Non of this will apply if you have a contested case where attorneys are involved or you are going to hearings or to trial. In these cases you will likely be filing your income and expense declaration for a variety of reasons and possibly multiple times.

If you are going through a divorce in California and need assistance, we do offer a full service divorce solution throughout California.

Date Of Service Of Summons Not Date Proof of Service is Filed

Posted by Tim Blankenship on

This is a quick follow up video and article about filing of the proof of service of summons for your California divorce.

In the last article I was discussing the fact that there are only a few more days to file your California divorce case this year to have it finalize in 2017.  I had a lot of questions come in about this.

Specifically, one question stood out. “If I file my California divorce papers, and serve my spouse, either by personal service or by notice and acknowledgment of receipt, do I have to have that proof of service filed in that same time frame or can it be filed after?”

It was a good questions because she was asking if she files her divorce case say on June 26th and then serves him on June 29th, but then files the proof of service on July 3rd or somewhere after the last possible date of service to have divorce finalized in 2017, will it still count.

The answer is “yes”. You can serve your spouse prior to the end of June and file the proof of service after the end of June and still have your California divorce finalized by the end of the year.

It is the date of actual service of the divorce summons and petition that counts, not when the actual proof of service is filed with the court.

Date Of Separation In Divorce : Why It’s Important : California Divorce

Posted by Tim Blankenship on

There is a lot of discussion surrounding the importance of the date of separation and we’ll discuss a few here.  However, keep in mind that the date of separation is not so important when you are going through an amicable California Divorce. I’ll explain below.

The date of separation you use is essentially the line in the sand between what is considered “Community Property” and what is considered “Separate Property”. In laymen’s terms (remember we are not attorneys) anything acquired before the date of marriage and after the date of separation is considered Separate property while anything you acquire during the marriage is considered Community property, with some exceptions such as inheritance and the sort. Here is a good article that goes into further detail.

The focus of the article is to explain how it works when your case is amicable. You see in contested divorce cases where everyone is fighting over everything, the date of separation can be very important for division of property and for such things as how long you may expect to pay for spousal support.

The date of separation, if your case is amicable, may not play such a big role in your divorce. Let me explain. If you and your spouse are in agreement to the terms of your divorce, the date of separation will not play much of a role. In contested cases, the parties use the date of separation to determine what is and what isn’t community property as well as what their values are.

This is still true in amicable divorce cases, but in some cases is just doesn’t matter.

For instance, I just got of the phone with a new client. They have only been married 2 years and per him, technically have been separated for more than a year (but not living apart – still living together) and the question to me was, “which date of separation should I use?” I replied by asking, “will the nature of your agreement change?” His answer was, “no”.

So what I told him is that since the nature of their agreement won’t change, why risk it and claim or state a date of separation of a year ago when it will not change what you are agreeing to. I told him all that would happen, possibly, is that the other spouse get’s upset and asks why he is using a date of separation from a year ago when they are still living together.

And by the way, still living together does not mean you cannot file for divorce or use a date of separation months in the past, even if still living together. Read this article here for more information about filing for divorce when still living together. Many of my clients are still living together at the outset of the divorce process.

File & Serve Your Divorce Papers By June 28th 2017 To Finalize This Year

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File & Serve Your Divorce Papers By June 28th 2017 To Finalize This Year

We come to this time each year where people rush to file their California divorce. Why? Because people realize that with the 6 months cooling off period before your divorce can be finalized in California, they have to have their divorce case started before the end of June. Keep in mind also, that it is the DATE OF SERVICE of the divorce petition that starts the clock on the 6 months, NOT THE DATE OF FILING.

This is a common mistake people make when going through a divorce in California. They think the 6 months starts at the date of filing of the California divorce, but it is the date of service that matters most.

For example, let’s say you filed for divorce on May 1, 2017, but for one reason or another you did not serve your spouse until June 1st. In this case the 6 months starts June 1st, not May 1st.

This is why I am writing this article. Because we get a lot of new clients wanting to finalize by the end of the year, they think they can wait until the end of June. This is not the case.

We need time to take your divorce paperwork down to court, get it filed and then get it served.

Why would people want to finalize their divorce before the end of the year? Mostly for tax reasons. People want to be able to file their taxes as single for 2017 and need to be single at least one day in the calendar year. So by starting their California divorce and having it SERVED before the end of June will result in a 6 months date for their divorce at the end of December.

Other reasons people want their divorce to finalize in the same year they started is simply to have a fresh start in the new year. I guess there is something to say about putting the divorce behind you in 2017 and starting fresh in 2018.

California Default Divorce Property Division Issues

Posted by Tim Blankenship on

California Default Divorce Property Division Issues

I have written a lot about California default divorce type cases because they can be a little tricky to navigate procedurally with the courts.

You see with an uncontested California divorce where you and your spouse ultimately come up with an agreement and submit to court, the default divorce means that the other party is not going to participate at all.

I often tell people that the default divorce should be used as a last resort. Why? Because there are issues related to property division (and when I say property I mean any type of asset or debt) that you have to be aware of.

Most important to know is that in a default type divorce case, the only things you can ask for your your judgment is what you put on the petition. So if you left things off the petition, such as specifics to child custody or asset and debt division, you cannot put it on the judgment.

In addition to that, one more issue is that the court will normally make you conform to California community property laws and make you divide all the assets and debts evenly, 50/50, even if that is not truly fair.

The default divorce is the only thing you can do if the other party will not participate. But you should encourage your spouse to participate as it will be much easier to finalize your divorce as you get to make the decisions you both agree with as opposed to having to divide everything 50/50 as you would in a default divorce.

Not wanting to pay the Response filing fee is not a good reason to do a California default divorce.  I understand what you are trying to do and save on court fees, but there is a better way. (if you didn’t know a uncontested divorce requires the petitioner to file a petition and pay the court fee and the Respondent needs to file a Response and also pay the court fee)

What we recommend is that you do a default, but not a true default which is what most people do. We suggest you do a default WITH AGREEMENT. Yes, there are 2 types of defaults. Defaults with agreement and default without an agreement.

The default WITH agreement is much like an uncontested divorce in that you will enter into a written agreement with your spouse, but you don’t have to pay the response court fee, just like the true default.

Getting Divorced But Still Living Together : California Divorce : Divorce661

Posted by Tim Blankenship on

Getting Divorced But Still Living Together : California Divorce : Divorce661

Many of our clients are getting divorced and are still living together. When people call about our services and tell me this, sometimes they think that they cannot still be living together to get divorced or that their situation is different because they have not actually, physically separated yet.

First of all, there is no requirement in California that you be physically separated for any period of time prior to filing for divorce, like some States.

So when you go to file for divorce and are still living together, the question becomes, what date of separation do you use if you are still living together.

When people are still living together and getting a divorce and I ask them what their date of separation is, they usually say “there isn’t one” or “we are not separated, we are still living together”.

So in these cases, what date of separation should you use when filing your divorce Petition. Because you will have to have a date of separation listed on the Petition when you go to file your California divorce case.

If you are getting a divorce but still living together you can use one of a few different dates of separation.

First, you could use a date in the past that perhaps you and your spouse discussed getting a divorce. Maybe you had a big sit down and discussion and talked out the details of your divorce or simply talked and the two of you agreed it would be best to get a divorce. You could use this date if this is the case.

Second, maybe there was a change in your living situation. Let’s say one of you started living in the spare bedroom or perhaps started sleeping on the couch or even started staying at a friends house a few days a week. This would certainly show that something is going on and perhaps a date surrounding what led up to changing your sleeping arrangement would be an appropriate date of separation.

Third, if you have no other date in mind, and this is what we do most of the time, is we simply use the date of the filing of the divorce petition as the date of separation.

Again, you need to have a date of separation listed on the divorce petition. So while you are not physically separated, you would at least use the date of filing or signing of the petition as the date of separation.

California Annulment of Marriage Rules : Can You File For An Annulment?

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California Annulment of Marriage Rules : Can You File For An Annulment?

Today we are talking about Annulments in California also known as Nullity of a marriage in California. We get calls asking about the process for annulments pretty often. However, there is a big myth when it comes to the rules and guidelines one must meet in order to qualify for an annulment.

Length Of Marriage Does Not Matter With California Annulments or Nullities

The biggest myth, or should I say the only myth when it comes to annulments in California is that of the duration of the marriage. Many people believe that they can get an annulment if they were married for a very short time.

This is a myth about annulments that we get from T.V. I can think of one movie in particular, The Hangover, where Doug get’s married and does not remember because they had taken drugs. The next morning they go back to the wedding chapel and ask if they do annulments because they got married last night. ( I will come back to this, because it brings up an actual reason for a nullity)

6 Ways To Qualify For A Nullity of Marriage in California

There are only 6 reasons that you can qualify to have your marriage annulled

There are only 6 reasons you can claim to ask the court to annul your marriage. We are going to be talking about nullity based upon a Voidable Marriage. You see, that is what is happening with a nullity is that you are nullifying or voiding the marriage based on one of 6 reasons.

  1. Petitioner’s age at time of registration of domestic partnership or marriage – the party filing for the annulment was under 18 years old at the time of the marriage or domestic partnership.
  2. Prior existing marriage or domestic partnership – Either party was already legally married or in a registered domestic partnership. This is different from bigamy (which is automatically illegal) because, in this case, the marriage or domestic partnership took place after the former spouse or domestic partner was absent for 5 years and not known to be living or generally thought to be dead.
  3. Unsound Mind – either party was of “unsound mind” or unable to understand the nature of the marriage or domestic partnership, including the obligations that come with it.
  4. Fraud – Either party got married or registered the domestic partnership as a result of fraud. The fraud must have been about something vital to the relationship that directly affected why the party who was deceived agreed to the marriage or domestic partnership. Some examples are marrying only to get a green card or hiding the inability to have children.
  5. Force – either party consented to getting married or filing a domestic partnership as a result of force.
  6. Physical Incapacity – the parties got married or registered a domestic partnership while 1 of them was “physically incapacitated” (basically, it means that 1 of the spouses or partners was physically incapable of “consummating” the relationship) and the incapacity continues and appears to be “incurable.”

So as you can see, the reasons to qualify for a nullity are pretty stiff and time or duration of the marriage is not one of them. In all my time I have completed thousands of divorce cases, and only 3 nullities. Two of them were for prior existing marriages. Meaning, when they got married, one of them was still currently married.

These types of cases are pretty easy to prove. They were previously married and cannot provide proof of a valid divorce and then go remarried. In this case the parties agreed to nullify the marriage.

In the other case of nullity that I handled, the parties got married after a week of drinking and doing drugs and neither party realized what they had done. This was a case where the nullity of their marriage was approved by the court.

Nullities must be approved/ ordered by the court

When you file for a nullity of your marriage, the process is much different than with divorce. You see, with a divorce, you do not have to have a reason and it is just called irreconcilable differences. With nullity you need to prove one of the 6 reasons to the court and they have to agree with your rationale.

Procedurally, this means that on top of filing for a nullity, you also have to file a Request For Order and have a hearing set for the court to hear your evidence as to why a nullity should be granted.

Now back to my example about the movie The Hangover. While they could not get a nullity based on the short term duration of the marriage (at least not in California – Perhaps in Las Vegas), they could try based upon “unsound mind”.

Personally, I think that it should be easy to nullify your marriage in California. People do make mistakes. In fact, I got a call last week and the wife was asking about nullities and I had to break the above news to her. They had only been married for 4 days and both the husband and wife realized that it was a mistake.

Unfortunately, this will just have to be one of life’s learning lessons and will simply have to get divorced. The only real issues is that these people were very young, in their early twenties, and from now on, whenever asked, will have to indicate they are divorced instead of single.

That is until they get married again.

 

 

 

 

FL-180 : The Court Acquired Jurisdiction Of The Respondent On

Posted by Tim Blankenship on

FL-180 : The Court Acquired Jurisdiction Of The Respondent On

This article explains what date you should put on the FL-180 on number 3 where it says, The Court acquired jurisdiction of the Respondent on (Date)

So we know the court is looking for a date, but what date?

You can see that there are 2 options. Either the date the respondent was served or the date the respondent appeared.

You can use either date, the date of service or the date the respondent appeared. The date the respondent was served is pretty clear. Whether they were served personally, or by having them sign a notice and acknowledgment of receipt, you will use either the date they were personally served or the date they signed the FL-117.

But what are they talking about as far as, “The date the respondent appeared”?  The date the respondent appeared is the date the respondent filed their response. That is their “appearance”.

It really does not matter which date you use. We generally will use the date of service because that is usually a sooner date as the Respondent is usually served before they file the response. However, when there is a Response filed to the divorce case we do tend to use the date of the response or appearance to show the court that this is an uncontested divorce.