Tuesday, April 22, 2008

How do I complete my divorce?

Dear Famularo & Associates:
My husband and I separated two years ago. Approximately one year ago, I filed for divorce. My husband never filed any court documents, but my divorce is still not final. We do not own anything, all the debts have been paid off, and all we have is one daughter, who he never sees. Hos much longer do I have to wait until my divorce is final? I was told the divorce would be final after six months, but it has already been way longer than that.

Dear BL:
A divorce in California requires a waiting period of six months. This simply means that six months from when your husband was served with the divorce papers you will qualify to obtain a divorce. However, the divorce does not happen automatically. It is up to you to move your case along by filing the proper paperwork at the proper stage of the proceeding.

Although you indicate that you have filed a divorce, you do not indicate whether your husband was ever served. If he was not, you need to serve him. The waiting period does not even begin to run until your husband is personally served with the divorce proceedings.

After your husband is served, you must file a proof of service with the courthouse. Your husband will have 30 days to file a Response with the court once he has been served with the divorce lawsuit. If your husband has been served and has not filed a Response, the next step is to take his default. This is simply a paper filed with the court that informs the judge that your husband will not be participating in the court proceedings.

Once the default is filed, you may obtain a divorce judgment. This is filed in court and once it is signed the terms of your divorce will become final. Since your husband will not be participating in the court proceedings, you may ask for whatever orders you desire, including sole custody of your child and child support. It is highly likely the court will make those requests the terms of the final order.
--Famularo & Associates

Thursday, April 17, 2008

I was only married for one month...

Dear Famularo & Associates-
I live in California, but I married my wife in Las Vegas a month ago and I have found out that she is already cheating on me. We only knew each other only six weeks before we got married. On a whim, after a whole day of drinking, we got married. I have regretted the marriage ever since and want out. I heard that I can get my marriage annulled because we were together for less than six months? Is this true? Can I get my marriage annulled or do I have to file for divorce? Also, even though I was married in Vegas, can I file here?

Dear R.C-
First of all, since you and your wife are both residents of California, you must file here even if you were married outside of this state.

Many people believe there is a time limit on how long a couple can be married before they will no longer qualify for an annulment. This is a myth. There are a number of reasons that a couple will qualify for an annulment, some of them require you to file within a "reasonable" amount of time; while other grounds for annulment have no time limitation. The law has no set timeframe that allows a couple to either file for an annulment or not, and simply being married for a short period of time is not sufficient grounds. Instead, the court will look at the specific set of facts surrounding your marriage before it makes a decision as to whether a couple qualifies for an annulment.

In your case, it sounds like you will qualify to have your marriage annulled due to "incapacity." Incapacity simply means that you were unable to make a reasoned decision to enter into the marriage because you were under the influence of a controlled substance when you made the decision to do so.

In order to obtain an annulment, even if both you and your spouse wants one, there must be a court trial. This requires one spouse to testify in court about the facts which qualifies you for an annulment. For this reason, an annulment is usually too expensive to be practical.

Since you and your spouse were only married for one month, perhaps the better solution is to file for a summary dissolution. A summary dissolution is a simplified uncontested divorce proceeding. Not everyone qualifies for this form of divorce as there are strict filing requirements: your marriage date must have been less than five years prior to the filing of the divorce; you cannot own any real estate; you must have no children together; you can only have minimal assets and debts together; and you both must cooperate in the filing of the paperwork.

Although there is a six month waiting period for a summary dissolution (just as in a regular divorce), the process is very simple, and it is designed for a non-attorney to be able to file without help. The only legal advantage to filing an annulment is that it can be completed in less than six months (there is no waiting period).

Although legally, an annulment means that the marriage never happened, the proceeding will still be part of the public record. Thus, even if you have your marriage annulled, the fact that you were married will not be secret, and anyone will be able to get a copy of your annulment paperwork from the court just as though you had filed for divorce. Since the process for a summary dissolution is so much cheaper and easier, you might want to consider filing a simplified divorce proceeding, instead.

--Famularo & Associates

Tuesday, April 8, 2008

How do I enforce my child support order?

Dear Famularo & Associates:
I am a mother of two children whose divorce was final last year. Their father has no visitation with the kids, because he is too busy with his new life. I have a court order that he is supposed to pay me child support, but he either pays me late, or not at all. Is there any way that I can force him to pay his child support automatically without having to beg him for the money every month? My divorce was in San Diego county, but I now live in Riverside County? Does this make any difference? Do I have to take him back to court to get my money?

Dear A.R.:
If you already have an order for child support, you do not need to go back to courts to get his to pay you. What you need to do is collect the child support you are already owed- both the past due support and future child support. To collect future support, all you need to do is file a wage assignment with the court (it does not require a court appearance, it only requires you to prepare and submit a form to the court for its signature), and then serve it on your ex-husband's employer. The employer must then pay you your child support before your ex-husband gets paid. Collecting the past due child support is a little more complicated and requires the help of a family law lawyer. By the way, because your case was originally filed in San Diego county, you will always return to the same courthouse in that county should you ever need to return to court.

-Famularo & Associates

Wednesday, April 2, 2008

I do not want to wait six months for a divorce. . .

Dear Famularo & Associates:
I want to get a divorce and have been separated many years. I want to get remarried. I know there is a waiting period of six months. Is there any way to avoid the waiting period? Can the judge waive the waiting period so that I can speed up the divorce?

Dear T.K.:
The waiting period for a divorce in California is "jurisdictional." This means that the court does not have the power to grant you a divorce unless the waiting period has expired. Even though you have been separated for many years, the waiting period has not even begun to run. The waiting period only begins once the divorce paperwork has been filed and your spouse has been properly served. Once the divorce paperwork is filed and served, you will be eligible to become divorced six months from then.

-Famularo & Associates

Tuesday, April 1, 2008

I am legally separated, how do I get divorced. . .

Dear Famularo & Associates
My husband and I have a judgment for legal separation. I no longer want to remain married to him, and want to get a divorce. How do I turn my judgment for legal separation into a divorce?

Dear CM-
A legal separation in the state of California is similar to a divorce in that it is a court action which alters a parties' legal relationship. A lawsuit for legal separation includes orders for child custody, child support, visitation, spousal support, division of property and division of debts. All of the same orders in a divorce are made in a legal separation, except at the end of the lawsuit the parties are not divorced. All property and all debts accumulated after the date of separation are not shared by the parties, but are owned solely by the party who accumulated that asset or debt.

After a judgment for legal separation has been entered, you can still obtain a divorce. However, that divorce judgment is obtained depends on the terms of the legal separation. If the judgment for legal separation specifically reserves jurisdiction over the status of your marriage, you can simply file a motion to terminate your marital status and submit a divorce judgment to the court. If, however, status was not reserved in the judgment for legal separation, you must file a whole new divorce action. The new divorce action will be for status only, and you will not have to relitigate the terms of the legal separation. Thus, all orders made in the judgment for legal separation will not be affected by the filing of a request for a status only divorce.