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Divorce

Filing Your Petition for Dissolution of Marriage & the Next Steps

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Filing Your Petition for Dissolution of Marriage & the Next Steps

Starting Your Dissolution Case

To open a dissolution of marriage action in family court, the “Petitioner” (the spouse initiating the case) must file a Summons (Family Law) (form FL-110), Petition for Dissolution of Marriage (form FL-100) and any local form(s) required by your jurisdiction.  For example, in Orange County family court the Petitioner must also file a Family Law Notice Re Related Case (form L-1120).  Additionally, if there are minor children, the Petitioner must file a Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (form FL-105).

Once the above documents are filed with the family court, the Petitioner must complete service of process.  There are options for completing this required procedural step, as follows:

  1. Personal Service:  Through this service method, the spouse or “Respondent” receives the documents personally, through a process server, a California sheriff, or a non-party who is at least 18 years of age.  This means the Petitioner cannot be the individual to personally serve their spouse.  If personal service is the method of service used, a Proof of Service of Summons must be completed and filed with the court (form FL-115).

 

  1. Substituted Service:  Through this service method, the Respondent can be served through service on a third party.  More specifically, if personal service is attempted at the Respondent’s business or workplace and the Respondent is not available to receive the service packet, the server may leave the documents with “a person at least 18 years of age who was apparently in charge at the office or usual place of business” of Respondent.  Such person must be informed of “the general nature of the papers”.

If personal service is attempted at the Respondent’s home and the Respondent is not available to receive the service packet, the server may leave the documents with “a competent member of the household (at least 18 years of age)”.  Such person must be informed of “the general nature of the papers”.

The server must try to serve the Respondent at least a few times (3 or more attempts is best) before leaving the service packet with the third party.  Different days of a particular week and/or different times of the day must be attempted.  “Due diligence” in attempting to serve the actual party spouse must be shown.

Under both the business and home options, the server must also thereafter mail an additional copy of the service packet to the Respondent at the location where the server left the initial copy.

Substituted service is deemed complete 10 calendar days after the mailing.

If substituted service is the method of service used, a Proof of Service of Summons must be completed and filed with the court (form FL-115).  A written declaration of due diligence, regarding attempts to serve the Respondent himself or herself, is also required.

  1. Notice and Acknowledgement of Receipt:  Through this service method, the Respondent receives the documents through the mail.  Included in the service packet is a Notice and Acknowledgment of Receipt (form FL-117).  Service is deemed complete on the date the acknowledgment of receipt form is signed.  The recipient spouse must cooperate and return the signed form to the Petitioner or his/her attorney, so the form can be filed with the court. If the recipient spouse does not cooperate with this process, another service method will need to be used.

Once You Complete Service of Process

Following service (as described above) on the Respondent, the Respondent has 30 calendar days to file his or her Response (form FL-120).  With the Response form, the Respondent must also file any required local form(s), and a UCCJEA (form FL-105) if there are minor children.  The service packet provided to the Respondent must include a blank copy of the responsive forms.

If the Respondent does not file his or her Response with the family court within 30 calendar days from service, the Petitioner can move forward with a default divorce.  There are specific steps that must be taken to properly complete a default divorce.  Contact us today so we can explain the default process to you and answer your questions.

How Long Does It Take to Get Divorced?

You cannot finalize your divorce for at least 6 months from the date your spouse is served (or from the date your spouse files their Response if they file it prior to being served – and yes, that sometimes happens).

 

Your divorce case is final once a judge signs your final Judgment.  You are returned to the status of “single” on the date the court indicates your marital partnership ends.  (The date is written or stamped on the first page of the final Judgment.)

If a divorce case is dealt with amicably and cooperatively, it is plausible to have all the procedural steps completed and your Judgment submitted to the court for review within the 6-month waiting period.

If your divorce case is contested or has a need for litigation (either in a request for temporary orders or through a court trial), the divorce process can far exceed the 6-month waiting period, years even in many cases.

FREE CONSULTATION

The divorce process, whether you are the spouse initiating the case or responding to documents you were served with, can be overwhelming and stressful.  Our attorneys are experienced in dealing with both amicable and contested divorce matters.  We strive to alleviate some of that stress and concern for our clients.

 

Contact us today for a free, confidential phone consultation to discuss the process in further detail.

Registering Your Out-of-State Custody Order

By | Child Custody & Visitation, Court Orders, Divorce, Legal Document Preparation, Parentage | No Comments

Enforcement of Your Out-of-State Custody Order

If you have moved to the state of California from another state, you may register your out-of-state custody order for purposes of enforcement.  Once the order has been registered in your local court, if the other parent violates the custody order, you can pursue legal remedies to enforce the order.  Without the order being properly registered, the California court cannot enforce it.  

How to Register Your Out-of-State Custody Order

There are a few steps in the registration process.  

First, you must complete the required court form titled, “Registration of Out-of-State Custody Order” (FL-580).  You must attach two copies of your out-of-state order to the FL-580 form.  One of the copies must be a certified copy.  The other may be a photocopy.  You will sign the form under penalty of perjury asserting that, to the best of your knowledge and belief, the order has not been modified.  

Second, you must complete the required court form titled, “Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)” (FL-105).  This court form references other related cases involving your children, if any, an address history for your children and other related information.  

Last, you must complete any additional local forms required by your jurisdiction. For example, in Orange County the court requires a local form titled, “Family Law Notice Re Related Case” (L-1120) for all new matters.  

Once you submit your custody order to the court for registration, the court clerk will send notice of your registration packet to the other parent.  If the other parent wants to contest the validity of the out-of-state custody order, they must do so within 20 days of the date the notice was mailed to them.  The request must be in writing and filed in the court case.

The Court Hearing Process if the Validity of the Custody Order is Contested

At the court hearing, in order to avoid the court confirming the out-of-state custody order, the other parent must prove at least one of the following three things:

1.The issuing court did not have jurisdiction.
2.The child custody order you requested registration of has been vacated, stayed or modified by a court having jurisdiction to do so.
3.The other parent was entitled to notice of the original order, but did not receive proper notice.  

Modifying the Out-of-State Custody Order Once Properly Registered in CA

Once your out-of-state custody order is registered in California, you may request a modification of the order under certain circumstances.  The circumstances in which you may request a modification involve a more complex analysis.  Our experienced attorneys can explain the process to you in more detail.

Free Consultation

Contact us today for a free confidential phone consultation so we can discuss your questions about the registration process to see if you qualify to request a registration in California and further, if you have sufficient basis to request modification of the order once registered.

Disclosure in Divorce

By | Child Support, Division of Community Assets & Debts, Divorce, Legal Separation, Spousal Support | No Comments

Spouses often wonder whether they have to disclose their separate financial accounts a divorce proceeding.  How about accounts held only in their name? The answer to both questions is yes.

California Has Mandatory Disclosure Requirements in Divorce

California law requires the spouse initiating the divorce case (referred to as “Petitioner”) to complete a Preliminary Declaration of Disclosure packet and serve the packet on the other spouse. (Family Code § 2104)

The exception to this disclosure requirement is when the Petitioner serves the Summons and Petition on their spouse via publication.  If service of the Summons and Petition was completed through publication (versus personal service or through the notice and acknowledgment of receipt process) and the recipient spouse has not filed a formal Response and is in default, the Petitioner does not have to complete the otherwise necessary disclosure paperwork.  (Family Code § 2110)

If the responding spouse (referred to as “Respondent”) filed a formal Response with the court, he or she must also complete and serve a Preliminary Declaration of Disclosure packet of their own.

The 3 components of a Preliminary Declaration of Disclosure are the following:

  1. Declaration of Disclosure (FL-140)
  2. Income and Expense Declaration (FL-150)
  3. Schedule of Assets and Debts (FL-142)

You Must Exchange Copies of Your Tax Returns

The Declaration of Disclosure form is not filed with the court but must be served with the disclosure packet.  Under Family Code § 2104, the “preliminary declaration of disclosure shall include all tax returns filed by the declarant within the two years prior to the date that the party served the declaration.”  In some marriages, the taxes filed the two years prior to the date of the disclosure declaration are joint tax returns.  Do you still need to attach the joint returns?  The answer to this question is yes.  You must include copies of the two tax returns, whether individually or jointly filed.

Your Income and Monthly Expenses are Included in the Disclosure Process

An Income and Expense Declaration can be filed with the court.  This form discloses to the other party your income, both monthly and for the past 12-month period, and your monthly expenses.  If you are someone who has been in the dark about your spouse’s income during your marriage, the disclosure process may be quite eye opening.  The Income and Expense Declaration form also includes line items for investment income, self-employment income, certain monthly deductions, work related expenses, the sum of money held in deposit accounts and household members, among many other items.

Your Schedule of Assets and Debts is Not Just About You

On your Schedule of Assets and Debts form you must list all assets you have an interest in, including assets held jointly with any third parties.  There is a place on the form to indicate if something is your separate property or your spouse’s.  You should also list any assets of your spouse’s that you know of, even if you do not have complete information about the asset(s). As to debts, those must be listed too.  Debts include loans, credit card debt, student loans and taxes owing.  This form is the most cumbersome of the three disclosure components.  There are specific documents that must be attached for each category of assets/debts listed.

The Schedule of Assets and Debts form, along with its requirements, can seem daunting to some and a bit unsettling as you may, for the first time, be disclosing an asset or debt your spouse did not have any knowledge of.  Nonetheless, you must disclose it.  The court wants to ensure that each spouse has a full and accurate picture of all assets and debts before a judgment is processed and approved.

Failure to disclose a community asset can have severe consequences. It can expose you to a motion to set aside a judgment or a claim for breach of fiduciary duty. As a penalty for failing to disclose a community asset, the court may award at least one-half of the value of the undisclosed asset and attorney’s fees. In cases where the party has been found guilty of “oppression, fraud or malice” in concealing a community asset, the court may award 100% of the value of the undisclosed asset and attorney’s fees. (Family Code § 1101 et seq.Civil Code § 3294.) Moreover, failing to disclose separate property assets is sanctionable conduct. (Family Code §§ 2107(c) and 271.)

Thus, although the forms seem simple and straightforward, there can be legal consequences if not completed properly.

Free Consultation

Contact us today for a free confidential phone consultation so we can discuss your questions about the disclosure process and your divorce case in general.

Divorcing a Narcissist

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Narcissism is a psychological disorder that can create an emotionally abusive and toxic environment and cause devastating effects on a marriage.

According to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, narcissism is defined as a “pervasive pattern of grandiosity (in fantasy or behavior), need for admiration, and lack of empathy… as indicated by five (or more) of the following:

1.        Has a grandiose sense of self-importance.
2.        Is preoccupied with fantasies of unlimited success, power, brilliance, beauty, or ideal love.
3.        Believes that he or she is “special” and unique and can only be understood by, or should associate with, other special or high status people (or institutions).
4.        Requires excessive admiration.
5.        Has a sense of entitlement.
6.        Is interpersonally exploitative (i.e., takes advantage of others to achieve his or her own ends).
7.        Lacks empathy: is unwilling to recognize or identify with the feelings and needs of others.
8.        Is often envious of others or believes that others are envious of him or her.
9.        Shows arrogant, haughty behaviors or attitudes.”

Narcissist spouses believe their marriage revolves around them and expect their spouse to plan his or her life around their needs.

They are extremely controlling and manipulate situations to their advantage. Any indication of losing control makes them feel insecure, and they are prone to anger or violent outbursts when things do not go their way. Challenging their authority bruises their ego, so they become angry when met with opposition and are hypersensitive to criticism.

Abusive behavior also goes hand-in-hand with narcissists. While they may not always be physically violent, narcissists can be verbally and emotionally abusive as well as exceedingly controlling.

Because of the difficulty in curing narcissism (since narcissists do not believe they have a disorder), you can choose to remain in a marriage revolving around a narcissist’s needs and wants—or you can choose to divorce your narcissist spouse and take back control of your life.

DIVORCING A NARCISSIST

What happens when you decide you no longer want to be married to a narcissistic spouse? The hopes of obtaining an amicable divorce are unfortunately slim to none because a narcissist will most likely make the divorce process as difficult and contentious as possible.

Because narcissists are self-centered and unable to empathize or accept responsibility, they will put the blame on the other spouse for their marital problems and will perceive themselves as the victim (even while bullying the other spouse). Since a narcissist believes he or she is never wrong—it will always be the other spouse’s fault or shortcoming as to why there has been a breakdown in the marriage.

HIGH-CONFLICT DIVORCE

Divorce in general can be a contentious process. When you attempt to divorce a narcissist, the proceeding tends to get quite heated. This is because a narcissist spouse will attempt to manipulate every issue to his or her advantage and will view any action by the other spouse as a challenge against his or her authority.

It is common for a narcissist to engage in the following conduct to escalate conflict or frustrate the divorce process:

1.     Refuse to engage in negotiation to settle the issues.
2.     Fail to comply with agreements and/or court orders or listen to the judge and/or their attorney because they believe they are above the law.
3.     Withhold financial information and documents.
4.     Attempt to hide their assets.
5.     Refuse to pay support.
6.     Use their children as emotional pawns.
7.     Increase litigation costs with delaying tactics.

It is also common for a narcissist to issue threats such as:

1.        If you move forward with this divorce, you and the kids will be out on the streets.
2.        I’ll make sure you never get the kids.
3.        I’ll stop working and you’ll be the one paying me support.
4.        I’ll fight you with everything I have, even if it means going broke.

In short, a narcissist spouse will not act reasonably, do what is best for the children, volunteer information, attempt to settle the issues amicably or comply with orders. Instead, narcissists will make the process as difficult as possible because they believe themselves to be the one who’s been wronged.

FREE CONSULTATION

Divorcing a narcissistic spouse takes patience and perseverance. We are experienced in dealing with narcissist spouses and have helped many clients whose spouses have exhibited high narcissistic traits.

We understand how a narcissistic spouse operates, so we can help you protect your rights, guide you in how to communicate with your narcissistic spouse in a more productive way and keep your emotions under control and request court orders on your behalf that minimize opportunities for manipulation by the narcissist spouse.

Contact us today for a free, confidential phone consultation so we can discuss your situation and advise you about the options available to you.