Articles Posted in Legal Separation

home-158089_960_720There are so many reasons a client wants to remain in the family home after the divorce proceedings have been filed.  Often it is a custodial parent who wants to provide normalcy for their children.  Other times it is for financial or emotional reasons, or a combination of the three.  Whatever the reason, unless one party agrees to move out of the residence,  a court order will be required to exclude a party from living in the family residence.

Deciding who will remain in the residence at the beginning of a case is a problem nearly every family law litigant will face; requiring the assistance of the court in reaching that decision is far less common.  In most cases, one or both parties will decide to leave the family residence.  In these situations it is important to have a written agreement about who is leaving, who is staying, and how the expenses related to the residence are going to be paid.   These agreements are where most of the controversy lies, especially with regard to the payment of the expenses.  That is an issue that should be addressed in a separate blog.

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One of the firsringing moneyt issues a new client will ask us about is support.  Whether it is child support, spousal support, or both, support is one of the most important issues in your family law case.  It’s easy to understand why.  During your marriage income and expenses are shared and over time you find a happy medium between the amount of money you have coming in and the amount of money you have going out to pay expenses.  After you separate, the income doesn’t change, but the expenses will often double.  That means two rent payments, two food bills, two utility payments…the list goes on.  If you and your spouse were just making ends meet before the separation, odds are it will be twice as difficult now that expenses have increased. Continue reading

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As a cast member of the Real Housewives of New York, Jules Wainstein is no stranger to drama. Surprisingly though, Jules’ impending divorce from husband Michael Wainstein filed in June has already been deemed the most dramatic divorce in Housewives history. And while it may be the most dramatic divorce the show and its cast have ever seen, Jules’ situation is actually not all that uncommon out here in the REAL, real world.

According to all of the press that the couple has received as of late, it would seem that Jules caught Michael cheating on her with one of her close friends. At that point Michael was prompted to file a petition for divorce after their eight year marriage. Since then, numerous accusations of domestic violence have surfaced, along with recent pictures of police outside the couples’ apartment. Continue reading

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All Americans, religious or not, are in an undeniable state of excitement upon Pope Francis’ first arrival on U.S. soil. As we are bombarded with media coverage of the visit at every turn, the divorce attorneys here at the Law Offices of Nancy J. Bickford find it a fitting time to discuss annulment in California and the Pope’s recent reform to the Catholic Church’s annulment process, announced by the Pope’s September 2015 Letters motu propio.

An annulment under California law and an annulment in the eyes of the Church are not synonymous. The Catholic Church does not give divorced people permission to remarry. So, if a Catholic person wishes to remarry, the Church must find that their first marriage was void before they are free to do so.

marriage-annulment-in-california.jpgIn California, there are three legal options available to couples wishing to end or alter their marital status: dissolution (a.k.a. divorce), nullification, and legal separation. Divorce can only be granted where there has been a valid marriage. Nullification can only be granted if there was no valid marriage to begin with. Incest (see CA Family Code §2200), bigamy (see CA Family Code §2201), and lack of a lawful marriage contract (requires both issuance of a license and solemnization, see CA Family Code §300) would be grounds for a “void” marriage, one that will never be valid in the eyes of the law. Minority (under the age of 18 in CA), prior existing marriage, unsound mind, fraud, force, and physical incapacity are factors leading to marriages that are “voidable” (see CA Family Code §2211) meaning that they are valid in the eyes of the law until the parties seek and receive a judgment of nullification from a court.

For more information on grounds for annulment in California, see our April 1, 2015 blog titled, “Do I Qualify for an Annulment.”

For Catholics wishing to remarry, even after receiving a legal judgment of dissolution or nullification, they must still seek a decree of nullity from the Church. This process has faced a lot of criticism throughout the world for being a slow, expensive, and difficult process, and in some countries it is even considered basically impossible to do. So, Pope Francis’ new reform is meant to make the Catholic annulment process quicker and more accessible especially to the Church’s low-income members.

The most notable changes to the Church’s nullification process are as follows:
1. Now only one judgment of nullification is required. Automatic appeal to a second tribunal is removed, but appeal still remains an option in contested cases;
2. The Bishop is named as the principal judge in his diocese, who is able to designate this responsibility to a cleric if so desired;
3. Creation and addition of a third, quicker, process for cases where evidence of nullity is especially clear, to be decided by the Bishop himself. There are a number of situations where the new process can be used. Some examples include cases involving very brief marriage, existence of an extramarital affair at time of wedding or very soon thereafter, malicious concealment of things like infertility or a serious contagious disease, and more; and 4. Reintroduction of the ability to appeal the Bishop’s decision to the metropolitan bishop (or the Metropolitan Bishop’s decision to the Senior Suffragan Bishop).

Regardless of religious or cultural background, dissolution and annulment can be difficult for anyone. There are strict legal requirements and specific timing requirements associated with these requests. Our team of experienced attorneys can provide you the outstanding counsel you may need during these difficult times and will ensure that your needs are met as we help you navigate through the divorce or annulment process.
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separation-divorce.jpgThe term “Legal Separation” and “Dissolution” are distinctly different in that a legal separation does not result in dissolving the marriage itself, while a dissolution of marriage does indeed dissolve the marriage and will return the parties to their single status. There are several reasons why a spouse may want to file a petition for legal separation rather than a petition for dissolution of marriage. Some common reasons are because of the person’s religious background, an interest to maintain certain healthcare benefits, or perhaps because the parties do not qualify to file for divorce because they have not met the residency requirement (there is no residency requirement to file a petition for legal separation in California).

If you initially filed for a legal separation for one of the reasons listed above or for any other reason, but you decide that would prefer a divorce, then you will need to convert your case into one for divorce. In California, you are able to convert your legal separation to a divorce at any point during the legal process, even after your legal separation is final. Either spouse can be the one to request that the legal separation be converted into a dissolution of marriage.

FAQ's.jpgIf a judgment of legal separation has not yet been obtained (meaning that you have filed your petition for legal separation but the proceedings are still pending) and your spouse has not yet responded to your petition, then so long as the residency requirement is met, you (the Petitioner) can simply file an amended petition and check the box for “Dissolution of Marriage”. Your spouse will need to be served again with the amended Petition. However, if a judgment of legal separation has not yet been obtained but your spouse has already filed his or her Response to your original Petition for Legal Separation, then you may need to request approval from the Court.

If a judgment of legal separation has already been obtained from the court and you later decide that you would prefer a divorce, then you cannot just file an amended petition. Instead, you will need to start over with a new case by filing a petition for dissolution of marriage and pay the filing fee again.

Regardless of the status of the petition for legal separation, either spouse can petition the Court for dissolution of marriage. Because of this, it is typically better to simply petition for dissolution of marriage from the get-go unless both parties agree to the legal separation or a legal separation would benefit one or both parties. Also, it is important to keep in mind that the six month waiting period to be returned to single status does not start ticking until the Petition for Dissolution of Marriage has been served on the Respondent, despite the status of the petition for legal separation.
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dismiss-divorce.JPGIt is not uncommon for spouses who have filed for divorce to question their decision to end the marriage multiple times throughout the process. Getting a divorce is life-changing for both spouses. Sometimes, after one or both parties realize the implications of divorce, they begin to reconsider whether their differences are really “irreconcilable”. If you have filed for divorce, but would like to take a step back from the proceeding to reassess your decision, there are a few options to consider.

Reconciliation: If you and your spouse have made the decision to reconcile and no longer wish to pursue a divorce, you may dismiss your divorce petition. Once you dismiss your divorce case your proceeding will end, but neither side will receive a refund of any fees or costs expended pursuing a divorce. This is an important consideration because if the divorce petition is dismissed, but you later decide to re-file for divorce, both parties will have to pay their respective $435.00 filing fees just to file their initial paperwork.

Legal Separation: If you are not ready to obtain a divorce, but also are not interested in reconciliation, you have the option to convert your divorce petition into a petition for legal separation. Through the legal separation process, the parties can obtain similar orders as through the divorce process such as support orders, custody and visitation orders and property division orders. After making a request for legal separation, the court will continue to track your case setting status conferences and encouraging you and your spouse move through the system. If you change your mind later, you also have the option to revert back to the divorce process and terminate your marital status.

dismiss-divorce-petition.JPGSuspend the Proceedings: While parties are attempting to decide whether to continue with the divorce or legal separation process, they have the option to suspend the divorce process through agreement. The parties or their attorneys can prepare a stipulation and order that is filed with the court that will put the entire case on hold. Divorce litigants are not be required to fulfill deadlines and make court appearances while their divorce case is suspended. You may also want to suspend the proceedings if you and your spouse have decided to get a divorce, but cannot actively participate in the process. Parties may agree to suspend the divorce process for medical reasons, work-related concerns, or even issues related to their minor children.
If you are trying to navigate the procedural options for your divorce, it is important to consult with an experienced family law attorney to learn the implications of each option.
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legal-separation-roads.jpgThe term “Legal Separation” and “Dissolution” are distinctly different in that a legal separation does not result in dissolving the marriage itself, while a dissolution of marriage does indeed dissolve the marriage and will return the parties to their single status. There are several reasons why a spouse may want to file a petition for legal separation rather than a petition for dissolution of marriage. Some common reasons are because of the person’s religious background, an interest to maintain certain healthcare benefits, or perhaps because the parties do not qualify to file for divorce because they have not met the residency requirement (there is no residency requirement to file a petition for legal separation in California).

If you initially filed for a legal separation for one of the reasons listed above or for any other reason, but you decide that would prefer a divorce, then you will need to convert your case into one for divorce. In California, you are able to convert your legal separation to a divorce at any point during the legal process, even after your legal separation is final. Either spouse can be the one to request that the legal separation be converted into a dissolution of marriage.

If a judgment of legal separation has not yet been obtained (meaning that you have filed your petition for legal separation but the proceedings are still pending) and your spouse has not yet responded to your petition, then so long as the residency requirement is met, you (the Petitioner) can simply file an amended petition and check the box for “Dissolution of Marriage”. Your spouse will need to be served again with the amended Petition. However, if a judgment of legal separation has not yet been obtained but your spouse has already filed his or her Response to your original Petition for Legal Separation, then you may need to request approval from the Court.

legal-separation.jpgIf a judgment of legal separation has already been obtained from the court and you later decide that you would prefer a divorce, then you cannot just file an amended petition. Instead, you will need to start over with a new case by filing a petition for dissolution of marriage and pay the filing fee again.

Regardless of the status of the petition for legal separation, either spouse can petition the Court for dissolution of marriage. Because of this, it is typically better to simply petition for dissolution of marriage from the get-go unless both parties agree to the legal separation or a legal separation would benefit one or both parties. Also, it is important to keep in mind that the six month waiting period to be returned to single status does not start ticking until the Petition for Dissolution of Marriage has been served on the Respondent, despite the status of the petition for legal separation.
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Word is out that actress Hilary Duff and ex-hockey player Mike Comrie have separated and are on the road to a divorce. The couple married in August 2010 and Duff gave birth to their son, Luca, in March 2012. According to TMZ, the couple has mutually agreed upon having an amicable separation and they intend to share joint custody of their son. They even plan on remaining best friends after the divorce.

So often we hear of couples who have just decided to separate or divorce and they are full of feeling of anger, resentment, and shock. But cases like Duff and Comrie who actually seem to be quite pleasant as they separate make you wonder if they did something different from the start. Perhaps the way they informed each other of their desire for a separation/divorce was done in a manner to minimize those heightened emotions that we so often hear about.

The way you break the news to your spouse about your impending separation or divorce can really play a part in laying the foundation for how your divorce will play out. Most people remember the precise details about how his or her spouse broke the news that he or she wanted a divorce. Those parting words will inevitably be extremely difficult but there are certain approaches that may lead to a better parting for both parties.

dealing-with-divorce.jpgChoose the Right Words: Choosing your words carefully will help to increase the amount of conversation that you provoke from your spouse and decrease the amount of shock that he or she will inevitably experience. Perhaps you are just pondering the thought of divorce, or you are interested in a trial separation. Or maybe you have made up your mind that you want a divorce. Whichever path you have chosen to take, it is important to be clear with your spouse by clearly specifying the degree of finality that you want. For instance, if you are not completely set of the idea of divorce and still just pondering the possibility, you probably don’t want to come out and say to your spouse, “I want a divorce!” Rather, you could approach your spouse by explaining that your relationship doesn’t seem to be improving and inquire what he/she thinks about a separation. This will allow your spouse the opportunity to engage in a conversation with you rather than feeling completely and utterly shocked and merely focused on the word “divorce.”

On the other hand, if you are certain that a divorce is what you want or need, you might want to approach the conversation in a more gentle manner and in the right time and place as to avoid or at least reduce a sudden fury. Your spouse will probably already be devastated at hearing the words “I want a divorce,” so deliberately hurting your spouse’s feelings on top of that and already showing greed about what you want in the divorce will only serve to heighten his/her anger, resentment and urge to be litigious.

Your actions and words will have corresponding reactions. So although a few
words so early on might not seem like a big deal, the choices you make when breaking the news to your spouse that you want a divorce may very well affect your entire divorce process and your life in the future.
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San Diego Divorce Waiting PeriodThe National Network to End Domestic Violence recently spoke out against proposed Senate Bill 518, “The Healthy Marriages Act,” which would extend the waiting period for a divorce in North Carolina to two years and require the couple to complete courses on communication skills and conflict resolution. Further, if there are children the bill proposes that the couple complete a four hour course on the impact of divorce on children. While this may seem like a good idea, the women’s group mentioned above argued that the bill, filed by Sen. Austin Allran, R-Catawba, would increase the danger of abuse for women because “the most dangerous time for a battered woman is after she takes steps to leave the relationship.”

North Carolina’s current one year waiting period is one of the longest waiting periods in the nation. In San Diego, however, no couple can become divorced quicker than in six months. California Family Code Section 2339 sets forth the mandatory six-month waiting period until a divorce can actually become finalized by the court. The waiting period does not begin until the divorce petition is filed and the other party is properly served. This essentially means that the court cannot restore “single person” status until this six-month waiting period has lapsed. Thus, neither the person filing for divorce (Petitioner) nor the party being served with the petition (Respondent) can remarry or file taxes separately until such time as the court has granted the individual’s request to have his/her status restored as a single person.

Read answers to FAQs about family law from the divorce attorneys at the firm

The purpose of this waiting period, whether it be two years (as proposed in Senate Bill 518) or 6 months (in San Diego), is to give spouses the opportunity to make sure that they do not change their mind about going through the divorce process. During the waiting period, the spouses are not allowed to enter into another marriage, which provides the spouses with the potential for reconciliation. Furthermore, the waiting period is meant to give the parties and their attorneys time to prepare for a divorce settlement or trial. Family lawyers will advise their clients to begin gathering financial documents, and will begin to investigate important issues related to the parenting of children, if applicable.

But how long is too long for a divorce waiting period? Some San Diego divorce attorneys may agree with the National Network to End Domestic Violence, and would argue that if California’s waiting period were to be extended to a year, or even two years, it might unjustifiably increase the danger of abuse for women. This is especially the case where Husband and Wife remain living together pending divorce. As family lawyers are all too aware, in these economic time it may take some time for the marital residence to be sold, and often times there is not enough money to maintain two households. If such a bill were to be proposed here in California, perhaps it should include an exception clause for cases involving domestic violence or abuse. Luckily for those seeking divorce in San Diego, this is not an issue as of yet. The six-month waiting period remains in effect for the time being.


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There many paths to ending a marriage in San Diego – including settlement, trial, uncontested divorce and simplified divorce. Many couples struggle for months and even years to work out the complex issues involved in divorce such as property division, support, and custody and visitation. Dutch entrepreneur, Jim Halfens, created a new method of divorce used in the Netherlands called the “Divorce Hotel”. Using this method, a couple checks into the Divorce Hotel on a Friday, and with the help of family law attorneys and mediators, checks out on Sunday with divorce papers in hand. Instead of the typical hourly rate, the couple pays a flat fee for their stay in the Divorce Hotel. San_Diego_Divorce_Hotel.jpg

After experiencing great success in the Netherlands, Halfens is attempting to bring his novel concept to the United States, which is known for its extraordinary divorce rate. Halfens is not only negotiating with hotels and local family law attorneys, but also with television production companies. Halfens is attempting to start a new reality show which follows the couples through their stay at the Divorce Hotel. Many prominent divorce lawyers have expressed serious doubts about the practicality of Halfens’ concept. These attorneys are concerned that most divorces are too complex and/or acrimonious to be completed in a single weekend. U.S. divorce attorneys do agree that the concept may be successful in cases where the divorcing couple remains on friendly terms and has a relatively straightforward marital estate to divide.

Read more about uncontested divorce here