Residency Requirements Revisited

March 26, 2019 Judy L. Burger Leave a comment

Christina just finished unpacking the boxes and setting up her new home in California. Now, she is finally ready to divorce her estranged spouse. Or is she? Before filing the Petition for Dissolution of Marriage, she has to meet certain residency requirements.

What California Law Says About Residency Requirements

California Family Code, Section 2320 states:

(a) Except as provided in subdivision (b) a judgment of dissolution of marriage may not be entered unless one of the parties to the marriage has been a resident of this state for six months and of the county in which the proceeding is filed for three months next preceding the filing of the petition.”

Note that only one of the parties to a divorce has to abide by this residency requirement. This is useful if your spouse lives in another state or country.

In Christina’s case, she has lived in Orange County, California, for only two weeks. She does not meet either residency requirement. She may still have an option, though.

What About Legal Separations?

You don’t have to meet any residency requirement to file for legal separation under California law. Maybe you need (or want) to get your divorce started quickly but have not lived in California long enough. Consider filing for legal separation. This gives you some important protections.

As soon as you meet California’s residency requirements, you then have the option of filing an Amended Petition to switch your case from a legal separation to a divorce.

Christina may consider filing for legal separation. She probably will retain certain marital benefits, including joint health insurance, and can start negotiating a marital settlement with her spouse. As soon as she has lived in California for six months and the county in which she wants to file her divorce for three months, she can decide whether to convert her legal separation case into a divorce proceeding.

Learn More About Filing for a California Divorce

We’re here to help. In fact, the attorneys at the Law Offices of Judy L. Burger are experienced in all divorce-related issues.

Ms. Burger is a California Certified Family Law Specialist and founder of the Law Offices of Judy L. Burger. We assist clients in California’s Northern to Central Coast, including San Francisco, Beverly Hills, Gold River, Santa Barbara, Ventura/Oxnard, and surrounding communities.

California Divorce, Domestic Violence

Domestic Violence and Your Divorce

March 19, 2019 Judy L. Burger Leave a comment

Are you the victim of domestic violence? Have you ever – or do you now – have reason to fear your spouse? If so, you are not alone. In fact, there are more than 100,000 domestic violence-related calls to law enforcement every year. In this blog, we will touch on some of the issues where domestic violence and your divorce intersect.

Acts of Domestic Violence

When we think of this, we often think of physical damage one spouse inflicts on another. However, the law defines domestic abuse as:

Physically hurting or trying to hurt someone, intentionally or recklessly;
Sexual assault;
Making someone reasonably afraid that they or someone else are about to be seriously hurt; OR
Harassing, stalking, threatening, or hitting someone; disturbing someone’s peace; or destroying someone’s personal property.

Domestic violence in a marriage also affects the dissolution of that marriage.

Domestic Violence Affects Child Custody Arrangements

When children are involved, the focus in a California divorce is on doing what is in the best interests of the children.

Judges always take domestic violence into account when deciding child custody arrangements. The safety of the child and other family members is critical. Courts will review evidence that backs up domestic violence accusations.

If allegations of domestic violence arise in a divorce matter, the court will assume that the abusing parent should not have custody. This is called a “rebuttable presumption” because the accused party can present evidence overcoming the assumption they are not qualified to care for the children.

Visitation may also come into play when domestic violence is an issue. Protective orders and restraining orders may be necessary. In some cases, the court may allow only supervised visitation to ensure the children’s safety.

Domestic Violence May Affect Your Spousal Support and Property Division

This issue is a little more of a gray area. The problem is that either party could have committed the acts of domestic violence. Sometimes both parties have crossed that line.

The court examines allegations of domestic violence. Criminal convictions of domestic violence set up a rebuttal presumption situation. Generally, unless proven otherwise, the injured spouse is not required to pay spousal support to the convicted spouse. The convicted spouse has the opportunity to successfully rebut the conviction and change the judge’s mind.

However, allegations and convictions of domestic violence are taken seriously by the courts. They may have a profound effect on your divorce – you may become ineligible to receive support if you have committed violent acts.

In addition, the courts may give up to 100% of the community property interests in retirement and pension benefits to an injured spouse. Here again, the court will consider other factors before making a decision.

Final Thoughts

Domestic violence has a huge impact on a couple’s relationship. It’s only natural that it would also affect their divorce.

To discuss how to handle domestic violence and your divorce, please call us at 415-293-8314. The attorneys at the Law Offices of Judy L. Burger assist clients in San Francisco, Beverly Hills, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities.

If you or your children are in danger, call 911. You may also find local domestic violence organizations here or call the National Domestic Violence Hotline at 1-800-799-SAFE (7233).

California Divorce

Uncontested Divorce: How Long Does It Take to Finalize?

March 12, 2019 Judy L. Burger Leave a comment

When Dave and Tiffani decided to divorce, time was an issue. They both wanted to move on as quickly as possible. New to the whole process, they consulted with their attorneys about how to achieve the speediest resolution. The term “uncontested divorce” kept cropping up.

Contested vs. Uncontested

A contested divorce is when the divorcing couple cannot hammer out a marital settlement agreement. This type of divorce tends to be more expensive, more stressful, and more time-consuming. If you are involved in a contested divorce, you probably will attend several court hearings, which also means frequent meetings with your attorney.

On the other hand, an uncontested divorce is fairly uncomplicated. Generally, this type of divorce resolves in one of two ways:

The divorcing couple reach a private agreement about all the issues that came up in their divorce.
The responding spouse simply does not respond to the divorce papers. After a time, the court gives the person who initiated the divorce a default judgment.

Sometimes, a divorce starts out uncontested but changes to contested as the parties begin to spar over issues like property division, spousal support, and child custody arrangements.

Timeline of an Uncontested Divorce

Generally, it is safe to assume an uncontested divorce might proceed as follows:

The Petitioner starts the divorce by filing a Petition for Dissolution (Form FL-100) and a Summons (Form FL-110).
Additional paperwork may be filed if children are involved.
The divorce papers must be officially served on the Respondent for the case to proceed or the Respondent can sign for the papers to save time.
Within 60 days, the Petitioner completes and serves Preliminary Disclosure documents on the Respondent.
The Respondent has 30 days to file a response.
Respondent will file his or her own Preliminary Disclosures.
The court usually holds one or more status hearings.
The Petitioner and Respondent formalize their agreement in a Marital Settlement Agreement and file it with the court, along with:
- Appearance, Stipulations and Waivers
- Declaration for Default or Uncontested Dissolution or Legal Separation
- Judgment
- Notice of Entry of Judgment
- Declaration Regarding Service of Declaration of Disclosure.
Final judgment is entered.

As always, additional documents will be filed if the couple have children.

It’s easy to recognize that uncontested divorce cases generally resolve more quickly than most contested divorces. Since the time spent negotiating is a variable, it’s impossible to give an exact time for finalizing an uncontested divorce. However, a California divorce cannot be finalized until six months have passed since the date the respondent was served with a copy of the petition and summons.

Are You Headed for an Uncontested Divorce?

The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of divorce proceedings. Call us at 415-293-8314 to schedule a private appointment or visit our website. We maintain offices in San Francisco, Beverly Hills, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities.

California Divorce

Your Partner Won’t Agree to a Divorce? That’s Okay.

March 7, 2019 Judy L. Burger Leave a comment

Sometimes love dies, but only for one person in a relationship. Maybe one spouse wants to stay married for the kids or for financial reasons, while the other spouse is ready to move on. If you are in a situation where your partner won’t agree to a divorce, it doesn’t mean the divorce won’t move forward. In this blog, we will explore how an individual can finalize a contested divorce without the cooperation of their spouse.

After the Petition Is Filed

Let’s say you have already filed your Petition for Dissolution of Marriage and served copies of all documents on your spouse. Now, it’s your spouse’s turn to act:

The spouse must file a response to the petition, along with other documents and financial disclosures. There’s typically a period of discovery, where you produce documents to each other. The parties may attempt to negotiate a marital settlement agreement. If your spouse refuses to participate, this does not mean the divorce goes away.

If your spouse responds to your petition, but you are unable to negotiate a marital settlement agreement, your case likely will be set for trial. You and your attorney will present evidence, your spouse will present his or her case, and the judge will issue an order finalizing your divorce.

Divorce by Default

The California Courts webpage about responding to a divorce or separation says this:

“In California, as long as 1 person wants to end the marriage or domestic partnership, the court can end it, even if the other spouse or domestic partner does not agree or want to get divorced or legally separated.”

If your spouse fails to respond to the divorce petition within 30 days of being service, your divorce may be finalized as a “true default.” To get a final order from the Judge, though, you will still need to complete a number of documents, including:

Request to Enter Default;
Declaration for Default or Uncontested Dissolution or Legal Separation;
Judgment; and
Notice of Entry of Judgment.

Other paperwork may be submitted if you are requesting a child custody order, child support, spousal support, and division of community property and debt.

It Is Possible to Move on Without Your Partner’s Consent

An experienced California divorce attorney can help you finalize your contested divorce. Having someone on your side may make the whole process a little easier.

Judy Burger is a California Certified Family Law Specialist, and founder of the Law Offices of Judy L. Burger. Please call our offices at 415-293-8314 to set up an appointment with one of our attorneys. We assist clients along the Northern to Central California Coast.

California Divorce

Pets in a Divorce: Property or Part of the Family?

March 5, 2019 Judy L. Burger Leave a comment

About 68% of U.S. households contain at least one furry, scaled, winged, or gilled member of the family. That’s almost 85 million homes with something in common – they “own” at least one pet. In California, pets with squabbling ‘parents’ were considered to be just another asset to split up along with the furniture and the 401(k)s. Since many people consider their pets to be part of the family, this was problematic. A recent California law appears to be changing the legal status of pets. In 2019, will pets be property or part of the family?

Pets and Divorce Pre-2019

Since California is a community property state, everything a couple has accumulated generally is split 50-50. However, there are some exceptions. Pets were an unusual “asset” that was difficult to divide between the divorcing parties. In addition, animals often received spotty care while the divorce was pending.

A new California law that goes into effect in 2019 addresses the problem of pets in a divorce.

Pets as Part of the Family?

As of January 1, 2019, Section 2605 will become part of the California Family Code. It reads, in part:

“…the court, at the request of a party to proceedings for dissolution of marriage or for legal separation of the parties, may assign sole or joint ownership of a pet animal taking into consideration the care of the pet animal.”

The law also states the court may enter a temporary order requiring one party to care for the animal until the divorce is final.

So, what does this mean to a couple who both deeply care for their pet iguana?

Judges now may treat pets differently than other community property. Instead of just assigning a value and dividing it like many other community assets, the court may take other factors into consideration before assigning joint or sole custody. For example, judges may consider which party has the best relationship with the pet and who provides the majority of the pet’s care.

Talk to an Attorney About Your Rights – and Theirs.

Although this law may lead to a better life for pets, it also add another layer of stress to the divorcing couple. Fighting over Fido may prolong the process. However, we’re here to help. Please call us at (415) 293-8314 to schedule a confidential appointment with one of our attorneys.