Is default with agreement a viable option for an uncontested divorce? My wife and I are at least close to having an agreement on splitting assets etc. She is overwhelmed by the divorce process. Can she take the agreement to an attorney to revie...
I would strongly encourage you to have a lawyer, either on a limited scope basis or as a mediator assist you both in doing this (with a mediator, you should still have your own lawyers review the documents). The settlement agreement is NOT the main thing. The "procedure" is just as important, if not more so, in terms of ensuring that you both made informed decisions and were properly notified. When you skip the "technical stuff", you create holes in your agreements, leaving an agreement susceptible to attack later on. If you want your agreements to be binding (you can rely upon them), best to do it right the first time.
My colleague is correct that you have to file the petition documents, properly serve her, wait the 30 days for the default (during which you can exchange the required financial disclosures), prepare all of the required judgment documents, have her sign the agreement, make sure her signature is notarized, and file all. There is language that should be included in your agreement the discloses each of you had ample opportunity to review the agreement with your own lawyers, no coercion, duress, etc. Lots of legal bells and whistles that promote a strong, binding judgment/agreement.
I hope this helps.
Good luck.See question
I was married for 4 years in cal I was able to purchase a family home. The lender said we will not even start the process unless the wife signs the transfer 5 years later divorce. I explained you signed this form what is my recourse. Do I split th...
This is a bit difficult to assess as worded, and it would definitely be best if you could take your documents and information to a family lawyer for a more accurate assessment.
In very general terms, any asset acquired during marriage (between date of marriage to your "date of separation"), and or purchased with funds earned/acquired during that time, is community property. This means both spouses have an equal interest in the value of the asset. This can become more complex, if "separate property" funds were "co-mingled" with the purchase, maintenance, payments of the asset. Separate property is any asset/funds/debts acquired/incurred before the date of marriage, after the date of separation (a legal term), or at any time by gift or inheritance.
An asset that is community property CAN become separate property if one spouse gives it to the other spouse. It would be up to the court to determine if the transfer was intended as a gift and/or if the person giving up his/her interest in the asset understood that that was what s/he was doing. If the spouses are refinancing their home, for example, and in order to qualify, or to qualify at a better rate, one spouse has to sign an intefspousal (quit claim) deed, giving the other spouse full ownership, rights, title, and interest to the property, the question becomes: did that spouse understand what s/he was doing. In one such case, husband and wife confirmed that the intention was to put wife back on the title after the refi was complete. They didn't realize that that had not happened until they were in the midst of their divorce. Wife tried to argue that she did not fully understand that she was giving him all of her rights to the house because she did not have full fluency of the English language (she was Japanese). The court didn't buy it. This, even with the husband admitting they only did it for the refi. Title does control, absent a showing of fraud or some sort of incapacity. If, however, husband and wife had put wife back on title, the asset would have returned to community.
It can get very complicated, and contentious. So you may want to consider, in your divorce, what your goals are, and what your spouse's goals are, to see if you can craft an agreement to which you can both say "yes". I've seen too many spouses fight for what they (and their lawyers) believe they should get, only to spend it all in fees and lost wages from court appearances (see Marriage of Peterson).
I hope this information is helpful. Again, I strongly recommend you speak with a knowledgeable lawyer to help you navigate what can be a very complex AND resolvable issue.
Good luckSee question
In 2011 I became critically ill and could not continue to physically care for my semi-invalid husband. He was not able to physically care for me. We choose to divorce in order to legally separate our finances in order to avoid inheritance problem ...
As beneficiary, I'm curious as to the life insurance company's argument why you are not entitled to receive the life insurance proceeds. That has nothing to do with your marital status. I don't do insurance litigation, but it is curious to me.
As to nullifying your divorce, you will have to take comfort in your faith that God will provide, because the state will not. There is no nullification based on your spiritual union. To maintain statutory/legal benefits of spouses, one must have a valid, state recognized, marriage. You have a valid, state recognized divorce. This cannot be undone absent re-marriage (state licensed).
Very saddened by your loss and uplifted by your commitment to each other.See question
I have posted before but have received answers from lawyers in WI. I need to find a lawyer in Riverside County CA to help with filing a motion on my husbands filing for divorce. We both filed the same day, I got served, but he has left CA and I ...
It's not clear what kind of motion you are seeking. If it is a motion to change jurisdiction to WI, it should not take $4,000. If your husband filed a request for orders or other hearing, but did not properly serve you, the court will likely continue the hearing to another date or, if he doesn't show up, may dismiss the hearing entirely. If what you mean is that he never properly served you with the divorce papers, then there is really nothing for you to do at this point. If you file in WI, while there is a case pending in CA, the state with proper jurisdiction that received proper filing first will have control. Again, if you file in WI, and that is the proper jurisdiction, you will still have to serve him.
Lawyers do charge for their services, but you can retain one for the limited purpose of changing the jurisdiction, or making a one time appearance at a hearing. Alternatively, you can come out to California and make the appearance yourself. There is no requirement that you retain a lawyer. But you will be treated as any lawyer appearing in court - no special treatment because you don't know the law, or how to properly provide service on your spouse, or what forms need to be completed, or... There is a value to what lawyers do, which is why we charge for those services. $4,000 sounds like a reasonable deposit, but I doubt it would cost that much to actually get the case dismissed or moved, given the information you have provided here. Deposits, to the extent they are not used, are refundable. Other lawyers may charge you a flat fee for a single appearance. Everyone does it a little differently.
I hope this is helpful to you. Good luck.
My husband and I have decided to get a divorce. In researching my options, I see that we meet all the qualifications for filing for a summary dissolution which seems to be simpler than regular divorce. The only problem is I have approximately $20,...
My colleague is correct. Too often, people do not fully understand the difference between community property and separate property. It can be confusing, if there was any kind of "co-mingling". For example, a car that was purchased before marriage, but was paid down using income earned during marriage. Although the car may have remained in the name of the spouse who purchased it before marriage, community funds were used to pay it down, giving the community interest in reimbursement. When you marry, half of every dollar you earn, belongs to your spouse (they don't have to do anything for it). This confuses many people, especially as it relates to retirement accounts: "but the account is in my name and I'm the only who contributed to it - I worked for that!" Yes, but you used your income to fund the account, therefore, half of those funds contributed from date of marriage to date of separation, plus any interest that grew from there, belongs to your spouse.
That having been said, for a summary dissolution in California, there can be no more than $6,000 in community obligations. It is legally irrelevant how you plan to divide assets and debts.
Typically, a student loan goes with the student as his/her separate property. But, there are always exceptions. So it really comes down to, who benefited from the loan. Sometimes student loans are used for living expenses (benefits the couple/family). It could be a community obligation. The answer is not "black and white".
I would strongly encourage that you consider retaining a lawyer who can review your situation and confirm if you qualify. Better to do it right the first time, than deal with consequences later on. Many lawyers offer such services on a limited scope basis and/or for a flat fee. It is worth the investment.See question
I was incarcerated during the final hearing of my divorce. My husband won by default. The order of final judgement was 7 months ago. Can I reopen this case.
Very likely, yes. You should do so right away. The longer you delay, the more difficult it becomes. However, and depending on the orders, typically, as it relates to minor children, such orders are always modifiable. The goal is to give the children equal access to both parents, so long as it is practical/safe.
I hope this is helpful to you. Good luck.See question
Married in philippines im in qatar right now and my husband is in the united states and he comitted an affair with another woman Can i file a case?
To file in California, either you or your spouse must have been living in the state for at least 6 months prior to the filing. You will also need to file in the county where your spouse have resided for the last 3 months prior to filing.
Good luck.See question
The first step is to get yourself informed about your options and the process itself. People often make terrible mistakes at the beginning of this transition because they are acting out of fear, or anger, or anxiety, or... The emotional tornado you (and your husband) are experiencing will make this the WORST time to make any decisions.
I would strongly encourage you to speak with a lawyer practicing in your county with experience in Family Law. The first thing they will want to do is to see that prenuptial agreement. Before selecting a lawyer, identify some goals that you would like to accomplish. It can be as specific as "I want to keep the house" or as general as "I want my children to have a good relationship with both parents". You decide. This will help you identify the kind of lawyer you should speak with. You will also need to factor in your husband's current behavior. It's not clear what you mean be "giving me hard and hard time". If he is harassing you, threatening you, closing your access to bank accounts, etc, you really need to get a lawyer who can help you put some orders in place to protect yourself physically and/or financially. Short of something that extreme, you can take your time to find the right lawyer for your specific goals.
There are so many different ways to handle a separation/divorce, all of which have potential risks/consequences and benefits: you can go through a contested court battle, you can mediate with a neutral facilitator, you can enter a collaborative process, and you can even sit down at the kitchen table and figure it all out yourselves, using a lawyer to just prepare the documents in a limited scope capacity.
There are some wonderful community education programs all over that provide a lot of information. Divorce Options is one such program. It is currently being offered at Orange Coast College and other locations (I present on occasion at OCC).
I hope this is helpful to you. Good luck.See question
I have filled all papers to the court and it has been 70 days my spouse has not replied. Does she have a time frame to reply? What would be my next step?
Under California law, a Respondent has 30 days to file a response (if served by personal service), from the date of that personal service. Once she has filed her response, she has 60 days to serve and file her preliminary declaration of disclosure.
It is not clear if you have already served her, or if that service was personal. If she has not responded, you can proceed by default, in which case she would not be filing her preliminary declaration of disclosure.
I hope this information is helpful to you.See question