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Help! Can I Still Get a Divorce if My Spouse Doesn’t Respond.

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Help! Can I Still Get a Divorce if My Spouse Doesn't Respond?
Sometimes only one person in a marriage wants a divorce. The other spouse may threaten to put up roadblocks such as not answering the petition for divorce. Can your spouse really prevent the divorce by failing to respond? Fear not. Your spouse’s lack of participation in the proceedings will not prevent you from getting a divorce.

In California, you begin the process to end your marriage by filing in superior court a petition for divorce (form FL-100) and a summons (form FL-110), along with other documents. After you have filed these documents, you must have a copy of each served on your spouse. This is called service of process, and it is done by having someone personally deliver the documents to a spouse living in California or by mailing the documents certified mail to a spouse residing out-of-state. The person or service that delivered, or served, the documents on your spouse files proof of service in the court.

The summons informs your spouse that he or she has 30 days to respond to the petition for divorce. The 30-day time period begins to run on the day your spouse is served with the petition and summons. Your spouse can respond by agreeing to the requests in your petition or by opposing your requests. But how do you move forward with the divorce if your spouse does not respond at all?

Although your spouse has 30 days to respond to the petition for divorce, you are not automatically divorced once that time period has passed without a response. The earliest your divorce could be final is six months from the date the petition for divorce was served, but you may still move your case forward during the six-month waiting period. After the 30-day response period has run, and if you and your spouse do not have a written agreement, you may ask the court to enter a default judgment called a “true default.”

To obtain a true default judgment, you need to file the original and two copies of the following forms:

  • a Request to Enter Default (Form FL-165);
  • a Declaration for Default or Uncontested Dissolution or Legal Separation (Form FL-170);
  • a Judgment (Form FL-180); and
  • a Notice of Entry of Judgment (Form FL-190).

Additional forms may be required as well, such as the additional forms required if you are asking for custody, child support, spousal support, or partner support. Each county may require its own forms also.

Once you have filed these forms, the clerk of court will mail a copy to you and to your spouse. If your spouse does not oppose default or respond to the court in any way, the court will enter a default judgment. In the case of a true default, the court will grant the requests in your petition, but the court does not grant the divorce until at least six months have passed since you served your petition for divorce.

At a later date, your spouse may try to oppose the entry of default judgment by arguing surprise, mistake, or excusable neglect. In such a case, you may be required to appear in court for a hearing. After hearing arguments on both sides, the court will either grant default judgment or deny the same, but at least your case is proceeding.

Obtaining a “true default” defeats an opposing spouse’s attempt to stop or slow down the divorce, but it also has some downsides. In a case with a true default, you must also file a property declaration, which is a public record, and the court must divide property equally between the parties.

If your spouse is attempting to thwart your divorce by not responding to the summons, consult a qualified family law options to discuss your best options. The attorneys at the Law Offices of Judy L. Burger are experienced in difficult divorce proceedings and what it takes to sort out complexities when your spouse fails to respond. Call today to see how we can help you: (415) 293-8314.
Child Support

How Is Temporary Child Support Calculated?

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How Is Temporary Child Support Calculated?
Both parents have a duty to support their minor children. If you and your co-parent have started living separately, you may want or need child support in order to provide for your children. You may ask the court for a temporary child support order in a pending divorce, paternity, or domestic violence case with your co-parent.

A child support order requires one parent to pay to the other parent an amount for the support of the children. To obtain a temporary child support order you must have a pending family court case, but you don’t have to wait until all issues are resolved for the court to order temporary child support. The temporary child support order is a child support order in effect until the court enters a final order resolving all current matters in the case. You may ask for a temporary child support order at the beginning of your case, such as when you file the petition for divorce or your request for a domestic violence restraining order, or you may request temporary child support at a later point while the case is pending.

Under California law, a formula is used to calculate the child support guideline. The child support guideline is the minimum amount of child support recommended by law. Parents wishing to deviate from the child support guideline must state a valid reason for doing so.

In California, the “top priority” in setting child support is the “interests of children.” In fact, under California law, a parent’s “first and principal obligation” is to support his or her children. The guiding principles that California courts must use when determining child support include not only income but also parenting time-share and responsibility, the parents’ standards of living, and the children’s financial needs.

The child support guideline is calculated under California Family Code § 4055. California Family Code § 4055 sets out a mathematical formula that considers each parent’s net disposable income and the amount of visitation with the children. Net disposable income is figured by subtracting from gross income items such as federal and state income taxes, mandatory union dues, and health insurance premiums among others. The court then applies an additional factor to the child support guideline depending on the number of children.

In addition to the child support guideline, the court may also order payment of add-ons. California Family Code § 4062 lists two types of add-ons: mandatory and discretionary. Mandatory add-ons include reasonable uninsured medical, dental, and visions expenses of the children and the childcare costs incurred in order for a parent to work or obtain work-related training or education. Discretionary add-ons include items such as expenses for a child’s private school or special needs or travel expenses for visitation with the other parent.

Online calculators are available for calculating temporary child support, but using the calculator requires an understanding of tax data, such as alternative minimum tax adjustments, and California Family Code provisions, such as whether you qualify for the low-income adjustment or factoring in costs for “hardship children.” Calculating temporary child support is complex. To best serve your needs and the interests of the children for whom you are seeking a temporary support order, contact an attorney experienced in family law.

If you are facing a divorce proceeding, especially one that involves temporary child support, you should consult with an experienced California lawyer. The attorneys at the Law Offices of Judy L. Burger are well-versed in difficult divorce proceedings. Call today to see how we can help you: (415) 293-8314.

California Divorce

What Is Included in a Petition for Divorce?

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What Is Included in a Petition for Divorce?

In California, the process of ending a marriage or a domestic partnership begins when you file a petition for divorce in your local superior court. The petition, Form FL-100, is a three-page document completed by checking boxes and writing in short answers to questions.

Whether you are ending a marriage or a domestic partnership, the petition for divorce requests the same information. To prepare for completing Form FL-100, gather or have ready the following information:

  • The name and contact information of you and your partner in the marriage or domestic relationship.
  • Your county of residence for the last three months and your state of residence for the last six months.
  • The names and ages of any minor children of the relationship, including the paternity of the children.

Your county and state of residence determine which court has jurisdiction to grant your divorce. For marriages, you must file the petition for divorce in the superior court of the county where you have lived for the last three months.

In addition to the information above, the form petition for divorce also asks the following questions:

  • whether you are seeking a divorce due to irreconcilable differences or, instead, due to the permanent legal incapacity of your spouse or domestic partner to make decisions;
  • whether you are seeking spousal or domestic partner support;
  • whether you or your spouse or domestic partner has separate property, community property, or quasi-community property;
  • whether you are ending a marriage, a domestic partnership established in California, or a domestic partnership established outside of California;
  • whether you want your former name restored; and
  • whether you are asking the court to order your spouse or domestic partner to pay your attorney’s fees.

You should consult with and have an attorney complete the petition for divorce. Form FL-100 may look simple enough to fill out, consisting only of boxes to check and short answers to fill in, but how it is completed impacts you divorce. Along with the petition for divorce, you must file a summons, which is Form FL-110. Yet another form is required if there are minor children. You must also pay a filing fee.

Additionally, the form does not tell whether other law may affect your particular circumstances. For example, if you or your spouse or domestic partner is in the military, your divorce may be subject to the provisions of the Servicemembers Civil Relief Act as well. The filing of a petition for divorce may also affect your immigration status. There are some differences in the divorce process depending on other factors such as whether there are children of the relationship or whether the relationship is a marriage or a domestic partnership.

If you have questions about how to complete the petition for divorce, about divorce in general, or about how your circumstances may affect the divorce process, contact an experienced California divorce attorney. The attorneys at the Law Offices of Judy L. Burger will provide authoritative legal support tailored to your specific situation. Make the call today to learn how our attorneys can help: (415) 293-8314.

Can I Get Child Support While My Divorce Proceedings Are Pending?
California Divorce, Child Support

Can I Get Child Support While My Divorce Proceedings Are Pending?

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One of the golden rules in California divorces that involve children is called “the best interest of the child.” It is therefore no surprise that child support may be awarded during the pendency of a divorce proceeding.

Perhaps the toughest period of time for couples who are divorcing is between separation and the entry of a final divorce decree. Typically, one spouse informs the other of an intent to end the marriage, and then thing start to fall apart. There are many details to address, such as living arrangements and finances. And when children are involved, these issues can be even more difficult.

California Family Code § 3600 authorizes a presiding court to order “either or both parents to pay any amount necessary for the support of the child . . ..” Such an order may be made during the pendency of a divorce or legal separation proceeding. The order continues in force until terminated by the court or until another provision of state law renders the child ineligible for support (e.g. emancipation). In addition, the award would not be enforceable if the couple began living together again.

The decision of whether temporary child support should be ordered depends on the same issues as when a permanent child support award is made. Custody and the incomes of the parties are the primary areas of focus while keeping the best interest of the child in mind.

Many times, the couple mutually agrees to where the child will live during separation and how their finances will be handled. In those cases, no intervention by a court is needed, or the mutually agreed to terms may be submitted for approval by the court. Family Code § 3604 provides, however, that any order for support during the pendency of proceedings does not “prejudice the rights of the parties or the child with respect to any subsequent order which may be made.”

If you are contemplating separation or divorce and you have children, you should consult with a knowledgeable California divorce attorney. The attorneys at the Law Offices of Judy L. Burger  will help you make sure your children receive their necessary support. Make the call today to learn how our attorneys can help: (415) 293-8314.