How To File For Divorce in California Santa Clara Complete Questions and Explanations

How To File For Divorce in California Santa Clara
Complete Questions and Explanations

Law Offices of Don Glass
951-501-3554
$695 to $995 Flat Legal Fee
Low Cost Uncontested California Divorce Attorney
https://AttorneyPreparedDivorceForms.com
https://californiaonlinedivorceattorney.com

https://695DivorceAttorney.com

How To File For Divorce in California Santa Clara
Complete Questions and Explanations

If you have made the decision to file for divorce in Santa Clara and terminate your marriage or domestic partnership, you know that this was a difficult decision.  The divorce procedures in Santa Clara California are very complex and your next questions is do I handle the divorce myself or do I want professional assistance.  Well, that decision depends on whether your case is Contested vs Uncontested, or Confrontational vs Amicable, or Major complex issues vs Minor issues regarding children, assets and debts.

The purpose of this article is to provide options for how to file for divorce in Santa Clara California.

For example, if your divorce is Contested with major complex issues, you may seek the full representation services of a traditional attorney at 1800 Divorce.com .

However, if your divorce is Uncontested and extremely simple and you can handle everything yourself, then you should check-out the online services at NetDivorce.com

But, if you want the best of both worlds and your divorce is Uncontested even with complex issues, then an online flat fee divorce attorney professional may be your best option.   If that fits your situation, then this law firm may be your best option:

Law Offices of Don Glass in Santa Clara
951-501-3554
$695 to $995 Flat Legal Fee
Low Cost Uncontested California Divorce Attorney
https://AttorneyPreparedDivorceForms.com
https://californiaonlinedivorceattorney.com

https://695DivorceAttorney.com

How to file for Divorce with 695DivorceAttorney.com  ……

A client who completes our Online Divorce Attorney Interview can drastically improve their chances of a positive outcome in their case in Santa Clara.

At the Law Offices Donald Glass – AttorneyPreparedDivorceForms.com – we help clients throughout the state of California win their uncontested divorce cases.  Over the years we have found that our clients must take immediate action to maximize their chance of winning their case.  When you file for divorce or legal separation in a family law matter, it is important to put your information together as soon as possible so we can assist you ASAP.

There is nothing more important than protecting your family, children and property in Santa Clara

To do this, we have our law firm clients complete our Online Divorce Attorney Interview that addresses all issues and family law matters that may appear in your case.  Our Online Divorce Attorney Interview is comparable to a Statement of Case of a client’s possible legal separation, divorce, and custody or property matter.  It can make a major difference in the possible outcome of your case.  Our Online Divorce Attorney Interview is a powerful weapon so we can use our legal knowledge to do all we can to win your uncontested divorce case.

Our Online Divorce Attorney Interview will prompt you to determine the date of marriage and date of separation and what led to the separation or divorce.  If there are any children of the marriage you will list their names, dates of birth and current visitation schedule if applicable.  You will also be prompted to list all your property and debts and when acquired and how you want the court to divide them.  Our Online Interview can help you recall important details and memorialize them before you forget.

Our Online Divorce Attorney Interview saves us time when we are working on your case. It provides us with contact information and other crucial information about you, your spouse and children.  Moreover, this information is provided by you in the comfort of your home or office, 24/7.  By saving us time on your case, it allows us to charge a reduced flat fee for our uncontested divorce legal services.   And, our Online Divorce Attorney Interview is used exclusively for legal representation and is completely secure, and confidential under Attorney/Client confidentiality.

The Law Offices of Donald Glass at www.AttorneyPreparedDivorceForms.com is committed to being available to our clients by Phone or Text or Email to answer your questions and concerns.

Attorney Divorce Interview – Complete Divorce Questions & Explanations

My Full Legal Name, Relationship Type and Points of Contact  

Your legal name is the name you use consistently, such as on legal documents like employment records, bank records, tax returns, driver’s license, property registration documents, school records, military records, etc. The name you use consistently on all of those documents is your legal name and should be used here (on your divorce documents).

Your legal name does not have to be your full birth name. You may have changed it by consistent usage. An example of this is that your birth certificate may say, “John Quincy Public,” but your legal name has become, “John Q. Public” by consistent usage as such on legal documents.

Your legal name should not be a nickname or stage name, unless you use that name consistently on the above-listed documents.

What if you look at the above-listed documents and find that you cannot determine what is your legal name because you use one name (perhaps a married name or an abbreviated first name) on some documents and another (perhaps a maiden name) on others? That is a problem. There are few laws that govern what is your name, but one of them is that you must be consistent. You can be called anything you want (with very few exceptions) but you must be consistent.

If you cannot determine what your full legal name is, you should definitely contact our law office for us to review the facts and provide you advice on what your legal name is before proceeding.

Fortunately, the vast majority of people have no difficulty in determining what their legal name is.

So what happens if you use an incorrect name, you might ask? It’s still you.

Well, if nobody objects legally during your case, it is possible that the court will not discover any discrepancy. You would get your divorce in whatever name you’ve given the online interview. It would not necessarily be an invalid divorce, unless there’s also some fraud involved and that fraud somehow comes to light, but it would certainly be a pain in the neck for you to get a divorce in an incorrect name.

It would be like having your driver’s license in one name and your car registration in another. Or having an insurance policy in an incorrect name. You’d constantly have to explain and argue and show proof to every bureaucrat you meet.

If there is a legal objection to the correctness of the name you’ve used, that objection would almost certainly come from your spouse/partner after s/he sees your divorce papers. Then, as with any other divorce dispute, you and your spouse/partner would either have to come to an agreement on what your correct name is and proceed with that name or fail to reach an agreement on what your correct legal name is and have to hire lawyers. If you and your spouse/partner agree that your legal name is NOT what you have told the online interview, then in order to proceed, you’d have to prepare and file an Amended Petition in your case – in order to correct your name before proceeding.

Your name is such an easy thing to get right that you should not take any chances. If in any doubt, check with your lawyer before proceeding.

How To File For Divorce in California Santa Clara
Complete Questions and Explanations

My Spouse/Partner’s Full Legal Name     

Your spouse/partner’s legal name is the name s/he uses consistently, such as on legal documents like employment records, bank records, tax returns, driver’s license, property registration documents, school records, military records, etc. The name your spouse/partner uses consistently on all of those documents is your spouse/partner’s legal name and should be used here (on your divorce documents).

Your spouse/partner’s legal name does not have to be the full birth name. Your spouse/partner may have changed it by consistent usage. An example of this is that the birth certificate may say, “John Quincy Public,” but your spouse/partner’s legal name has become, “John Q. Public” by consistent usage as such on legal documents.

Your spouse/partner’s legal name should not be a nickname or stage name, unless your spouse/partner uses that name consistently on the above-listed documents.

What if you look at the above-listed documents and find that you cannot determine what is your spouse/partner’s legal name because your spouse/partner uses one name (perhaps a married name or an abbreviated first name) on some documents and another (perhaps a maiden name) on others? That is a problem.

If you cannot determine your spouse/partner’s full legal name, you should definitely contact our law office to review the facts and provide you advice on what your spouse/partner’s actual legal name is before proceeding.

Fortunately, the vast majority of people have no difficulty in determining what their spouse/partner’s legal name is.

Marriage Statistics and Children of the Marriage

WHAT IS YOUR DATE OF SEPARATION?

The court won’t accept your divorce case for filing unless the Petition contains a date of last separation. The court considers a date of last separation as evidence that your marriage/partnership has broken down irretrievably in Santa Clara.

The date of last separation is the date when you last cohabited as husband and wife. Some interpret this date to be simply the last occurrence of sex. Others interpret this concept more widely and hold that it is the date on which you decided that the marriage/partnership had broken down and that you would file for divorce or legal separation.

Bear in mind that the date of last separation does not have to be a date of last physical separation, i.e. when one or both of you moved out of the family home, but it often is that date. Importantly, you do not have to be physically separated or resident in separate households to file for divorce. Many divorcing couples remain under the same roof during, and sometimes right up to the end of, the divorce process.

However, there must still be a date of last separation even if you are not physically separated.

The date of last separation is an important date. It has ramifications for division of property, debt and income. If you do not know and cannot determine yourself what this date is, it is well worthwhile contacting our law office just to determine the date of last separation before proceeding. It is that important.

If you have a child or children of the marriage/partnership who is/are now 18, there is one more factor you should be aware of regarding the age of children of the marriage/partnership – as it relates to child support.

To take into account the fact that many 18 year olds are still in high school and residing at home, the duration of the child support obligation has been extended slightly in such cases to support a child beyond the normal Family Code 6500 definition of minority.

For child support purposes only, a child of the marriage/partnership who is entitled to support is one who, pursuant to Family Code 3901, is either less than 18 years old OR is less than 19 years old AND unmarried AND is a full time high school student AND is not self-supporting. It is possible under these circumstances to have an adult child support order.

So right now, list here, along with minor children of the marriage/partnership, any living child of the marriage/partnership who will be between his or her 18th and 19th birthdays on the date on which your divorce case will be filed at court. Any such child of the marriage/partnership will not be listed on your divorce Petition, but if that child will still be an 18-year old un-emancipated full time high school student on the date on which the Judge will sign your divorce judgment, it will be listed in the divorce judgment for purposes of child support only.

That will also apply to any minor child who is under 18 and listed on your Petition at the time of filing but who later becomes an un-emancipated 18 year old full time high school student before the Judge gets to sign your judgment. Don’t worry. We will take care of this situation, but you do need at least to be aware of it.

Any Adult Children of This Marriage:

Unless there is a severe physical or mental disability of a child of the marriage/partnership who may need continuing or lifetime care and support, there would not normally be a child support order for an adult child of the marriage/partnership.

However, with more and more young people going on to college and graduate school, more and more divorcing couples are agreeing to support such an adult child until that child attains a certain goal, e.g. age 21 or 25 or an MBA, providing that child remains enrolled as a full time high school student. You can set up the support order, which is a fully enforceable court order, for one or both of you to be ordered to support such an adult child with a specific dollar amount per month.

You can accomplish this goal through your case, but don’t forget that like all other issues in your case, both you and your spouse/partner should remain in agreement.

So if you have any adult child(ren) of the marriage/partnership, other than an 18 year old already included above, for whom you want an adult child support order, enter that number of adult children here.

Only enter the number of adult children you and your spouse/partner want the court to order adult child support for. Do not enter adult children for whom you do not want a support order, such as adult children who are out of school and self-supporting.

Any Current Pregnancy of the Wife:

As you might expect, pregnancy is a potentially dangerous issue during a divorce case. Read through the following factors regarding pregnancy in divorce. They are designed to keep the considerations as simple as possible – without ignoring the legal practicalities of pregnancy in divorce:

1. If the wife is pregnant and both spouse/partners agree that the pregnancy is a pregnancy of this marriage/partnership, there is no problem here. Just answer “yes” to the question and you’re done with this issue. We will take care of the fact of the pregnancy for the rest of the case.
2. However, if the wife is pregnant and the spouse/partners do not agree that the pregnancy is a pregnancy of this marriage/partnership, that’s a big problem. If there is a current pregnancy AND a dispute regarding the paternity of that pregnancy, you and your spouse/partner MUSTresolve that dispute through medical tests before proceeding. That could involve considerable delay dependent upon the extent of the pregnancy.
3. If the wife is pregnant and there is good reason to believe that the husband is not the father that is an even bigger problem for the divorce process than if there was a simple dispute about paternity. It is a bigger problem because of the strong presumption in law that the pregnancy of a married woman is the child of the husband. Medical evidence can rebut that presumption of course, but medical tests cannot always be performed. What are your practical options here? First definitely contact our law office for advice on this critical issue. You can obtain medical proof, when that is available, that the pregnancy is not a child of the marriage/partnership and then decide, on the basis of our advice, that the presumption has been rebutted on the factual strength of your medical evidence. You could then answer “no” to the pregnancy question (the divorce Petition asks for “minor children of the marriage/partnership” – not whether there is a pregnancy, so if you have determined that the pregnancy is not a child of the marriage/partnership, it is not a problem if you answer “no” to the pregnancy question). If you don’t want to bother with medical evidence, you can wait until the pregnancy no longer exists and answer the question “no.” Or if you don’t want to bother with medical evidence AND you do not want to wait, you can answer the question as “yes” right now. If you do so, we must list the unborn child as a child of the marriage/partnership because of the strong legal presumption that you have not rebutted with medical evidence. Then later in the case, depending upon how fast you move in your case, you would either have to file an amended Petition to remove the child from the Petition after the child is born or you would have to provide the court, probably during a court hearing, and always providing that the medical evidence supports you, with proof that the unborn child originally listed in the Petition is not in fact a child of the marriage/partnership.
4. If your current answer to the pregnancy question changes beforethe date on which your divorce case is first filed at court, you MUSTcome back to this page in the online interview to modify your answer before our law office reviews the legal documents to be filed at court.
5. If your current answer to the pregnancy question changes afterthe date on which your case is first filed at court, you MUSTcome back to this page in the online interview to modify your answer. You should definitely also contact our law office. Then you may have to print out and file at court an amended Petition to reflect that change.

You should also bear in mind that there are limitations on filing amended paperwork at court. Generally speaking, but this is not a hard and fast rule, the court will permit one “free” amendment without you having to provide a reason for the amendment. So you should not “waste” your free amendment if at all possible.

My Current Residential Address:

Please note that if you change either your residential or mailing address after the case has been filed and before it is finalized, there is a legal obligation to serve a Notice of Change of Address on your spouse/partner and file a copy at court.

So if our law office is providing your un-bundled service (not full traditional legal representation) and you believe that you have a valid reason to hide your location from your spouse/partner, you should definitely consult with our office before proceeding. If you retain us to represent you, you may be able to use our office address on the legal docs instead of your own home address.

What the online interview is asking for here is the address where you presently reside – where you eat and sleep. If there is more than one such place, you should definitely consult with our office before proceeding.

Your current residential address would not necessarily be a parent’s or other relative’s address – unless you actually reside there, a prior address or an address where you will live in the future.

Your current residential address would definitely not be a work address or a mailing address, such as a Post Office box or private mail box.

If you are active duty military, a military address has so far always been acceptable, but it must be the address that represents where you reside, e.g. barracks. If you reside off base, it is the off-base address that is needed here.

How To File For Divorce in California Santa Clara
Complete Questions and Explanations

My Current Mailing Address:

If our office provides you with un-bundled service (not traditional full legal representation), the court may be mailing important legal documents to you at the mailing address you provide. So there are 2 obvious warnings – one less obvious than the other.

Make sure that your mailing address is secure. Documents mailed to you by the court will be divorce documents you may not want others to see. So for example, probably not a good idea to use your work address as a mail address if there is a mail room where all incoming mail is opened.

Less obvious is that if you are going to use a friend’s, relative’s or work address for your mailing address, you should put a ‘c/o’ and the name of the person or company in the mail address box. There are many picky mail carriers who will not deliver mail (particularly important-looking legal mail) to an address where they do not know your name.

It will be a pain in the neck if you do not receive legal mail from the court. The court will not send a replacement unless you pay for it. You will have to go physically to the court and buy a copy of your own documents or mail the court money, a request for a replacement and a stamped address return envelope for snail mail.

So be careful if you are using a mailing address.

My Spouse/Partner’s Current Residential Address:

Your spouse/partner’s residential address is far less important than yours -UNLESS YOU ARE RELYING UPON YOUR SPOUSE/PARTNER’S RESIDENTIAL ADDRESS IN ORDER TO BE ABLE TO FILE YOUR CASE!!

A court doesn’t acquire “jurisdiction” (or legal power) over your marriage/partnership (and divorce) unless you actually resides on a bona fide basis within the geographical territory of that court. We will address this issue on the very next page.

The court that grants your divorce will do so on the basis of the jurisdiction it obtains by virtue of one of you residing in its territory. If you will file your case on the basis of your own residency, then your spouse/partner’s residency is not important -providing you don’t move before you file your case at court. However, if you file your case on the basis of your spouse/partner’s residency, it becomes extremely important.

If you rely on your spouse/partner’s residency and s/he doesn’t reside where you tell the court s/he does, the court will not have the jurisdiction to grant your divorce. Your case can be dismissed. So if you are proceeding on the basis of your spouse/partner’s residential address listed on this page, be very careful that your spouse/partner actually resides where you think s/he does.

If you are NOT relying on your spouse/partner’s residency, his or her address becomes much less important. You should still try to list your spouse/partner’s address accurately, but your spouse/partner’s mailing address is more important. The court will be mailing documents to your spouse/partner on at least one occasion – perhaps more.

If your spouse/partner is active duty military, a military address has so far always been acceptable, but it must be the address that represents where your spouse/partner resides, e.g. barracks. If your spouse/partner resides off base, it is the off-base address that is needed here.

Residency and Court Jurisdiction

The residency requirements for filing a divorce in California are that you may file your case in any County in which either one of you has resided for the prior 3 consecutive months providing that same spouse/partner has also resided in California for the prior 6 consecutive months.

You can’t mix and match in residency for divorce. The spouse/partner that meets the county residency requirement must also be the spouse/partner that satisfies the 6-month state residency requirements.

The critical date for residency is the date your case is filed at court. One of you must satisfy both the county and state residency requirements on the date of filing. Either one of you may move to any point on the planet the following day. Doing so may not be convenient for the completion of your case, but it satisfies the residency requirement on the date of filing. Bear in mind that there are legal limitations upon moving your residence without your spouse/partner’s knowledge or consent if any minor child of this marriage/partnership resides with you. Be sure to consult a lawyer before moving a child of the marriage/partnership’s residence without the knowledge or consent of your spouse/partner.

If all things are equal, as they usually are, it is better to rely upon your residency than upon your spouse/partner’s. Why? Because you control when you move. You can’t control if and when your spouse/partner moves across state or county lines. If you try to proceed on your spouse/partner’s residence and print out your first set of legal documents to be filed at court tomorrow, but your spouse/partner moved to a different county today, you can’t proceed. You’d have to wait until one of you had again satisfied the residency requirements stated above.

If all things are not equal and you don’t satisfy the residency requirement yourself, then you’re stuck with relying upon your spouse/partner’s residency – but only if your spouse/partner’s residency is valid, of course. If you are stuck with relying upon your spouse/partner’s residency to file your case, you simply have to take a chance that your spouse/partner will not cross county lines before you can file your case.

If your spouse/partner does move and leaves you high and dry on residency, your only option would be to wait until you satisfy the residency requirements of a California county before proceeding with your divorce.

If you do get caught short on residency and cannot wait, legal separation provides an option and you don’t have to get a legal separation to take advantage of it. A legal anomaly is that while divorce has strict residency requirements, legal separation does not. You can move to California and file for a legal separation the same day. Later on you would file an amended Petition to switch to divorce and you don’t lose any time. However, you should definitely speak to your lawyer about this procedure.

If there is at least one minor child of this marriage/partnership, some think that you should file your divorce case in the state and county in which that child resides. Doing so is not a legal requirement. The theory is that a “local” judge is best for determining issues of child custody for a “local” child.

If neither you nor your spouse/partner will have been on active US military duty within 6 months immediately preceding the date on which your case will be filed at court, you can skip this tip. It has no effect upon you and your case.

These considerations apply only to active duty military personnel. They do not apply to Veterans or to those on inactive duty, such as National Guard who have not been activated. If you have any doubt as to whether you (or more likely your spouse/partner as if you are the military person, you’d be very likely to know your status) is or is not on active duty, check with the appropriate legal officer before proceeding.

Military considerations for the purposes of residency in filing a divorce case are really quite simple and predictable. No active duty military personnel can be denied or deprived of his or her ability to file a divorce (or any other type of civil case that has residency requirements) by virtue of absence from his or her usual residence as a result of his or her active duty service.

A prime example of this would be that a Marine stationed at Camp Pendleton in Orange County and resident close-by in Orange County, but who has been overseas on active military duty for the past 12 months, still has residency in Orange County for the purposes of filing a divorce case there. S/he may do so at any time. The military spouse/partner’s residency can be relied upon by either that military spouse/partner or his or her spouse/partner.

Another example is that a soldier who was ordinarily resident in Los Angeles County, but who has been stationed on active duty in Ft. Dix, New Jersey, still has residency in Los Angeles County for the purpose of filing a divorce case there. Either spouse/partner may rely upon that residency to file.

Problems arise when there have been some intervening factors. For example, where is an active duty military spouse/partner’s legal residency if s/he used to reside in Riverside County, has been stationed in Texas and receives orders for overseas? So far, Riverside would be the answer. If s/he then returns stateside and becomes stationed (still on active duty) in Colorado, Riverside is still the answer. But what if that person is then discharged from the military and remains in Colorado for 2 weeks before returning to Riverside County? That probably makes no difference, but what if that person remains in Colorado for 2 months or 2 years? Or returns to San Bernardino County, not Riverside County? If you have a difficult situation like this, you should definitely contact our law office to assess all relevant factors, before proceeding.

Court Location (Where My Case Will Be Filed)

Under current California family law and procedure, it is almost always possible to obtain a divorce without making a traditional physical appearance in a courtroom before a judge. Your case will be prepared with the purpose and on the assumption that there will be no court appearance in your case.

The good news here is that neither the court, the court clerk’s office, the judge who handles your case or (probably) you wants a court appearance in your case. Therefore the system is set up to avoid a court appearance and that is the default situation. This is so to the extent that even if the judge doesn’t agree with something in your proposed Judgment, your papers will simply be rejected by the judge for you to change something in them or provide a written explanation. Sometimes the court even tells you what should be changed – but sometimes not. Even under such circumstances, and occasionally when you might even prefer a court appearance to get things squared away, the court will not assign a court date in Santa Clara.

However, it must still be said that a court appearance is always possible in any case and that different courts (and different judges within those courts) have different policies that may require a court appearance.

When would this happen? Generally it happens when a judge is unhappy/suspicious about some term in your proposed divorce Judgment. Most typically it would be a child custody, visitation, support or division of property/debt proposal. Very often you may face just one or two questions from the judge at such a hearing and you may still get exactly what you requested. But the judge needed to see you to ask those questions for his own satisfaction.

So when you select a court on this page, bear in mind that you may well have to go to that court on one or more occasions.

Don’t forget that any residency you rely upon to file your case must be valid on the date of filing at court. Accordingly, if there is a residency change between now and the time you file your case and that change invalidates the residency you are relying upon to file your case, you would have to come back to the residency page of the interview to make appropriate changes.

Put another way, you can only rely upon the residence of one of you to file your case (even though both of you may qualify in terms of residency). If that spouse/partner (the spouse/partner whose residence you are relying on) moves between now and the time you file, that is a problem.

If that spouse/partner moves within the same county, it is only a small problem. You just have to come back to the online interview, go to the Address page of that spouse/partner, change that spouse/partner’s address and come back to the Court page to check residency. Then print out documents again, sign them and proceed to file your case.

However, if that spouse/partner moves across county or state lines before you file, that is a big problem. You’d have to come back to the online interview, go to the Address page of that spouse/partner, change that spouse/partner’s address and come back to the Court page to check residency. As the spouse/partner whose residency you were relying upon has moved, you won’t be able to rely on that spouse/partner’s residence for at least 3 months, if at all. This may involve delay before you can file your case.

Military Spouse/Partner?  Whether My Spouse/Partner is Active Duty Military:

If your spouse/partner is in the military service of the United States, s/he is immune from being served with any civil lawsuit, including a divorce case. This protection is afforded to all military personnel by the Service members Civil Relief Act.

Therefore, if your spouse/partner is either active duty US military or in a Reserve unit that has been called up. In a military spouse/partner case, instead of serving divorce papers upon him or her in the traditional manner, you need your spouse/partner to sign a particular document that waives his or her military protection and allows the divorce court to proceed in your case.

If your military spouse/partner will not sign that waiver document, you can only proceed in your divorce case by a complex procedure that is a procedure in which you should definitely contact our law office for advice before proceeding. Tell our officer that your spouse/partner is in the active duty military and that s/he will no longer cooperate by signing papers.

Bear in mind that ‘active duty military’ does not include those on reserve status or those in the National Guard who have not been called up to active status. If there is any doubt as to whether your spouse/partner is on active duty, you can determine whether s/he is or is not on active duty, and therefore protected by the Service members’ Civil Relief Act, by contacting his or her legal officer.

The critical time for the determination of whether your spouse/partner is in the active military service of the United States is immediately after your divorce case has been filed. Right now, only you know when that will be. If your spouse/partner is about to leave active duty military service, you may be able to delay your case until s/he no longer has the immunity provided by the Service members’ Civil Relief Act.

Also bear in mind that your spouse/partner’s active duty military status is not a bar to the filing of your divorce case. It is only a bar to the service of those divorce papers upon your spouse/partner. So you can proceed as soon as you are ready to file your case. That will at least get your case on record and provide you with the protection of the automatic restraining orders that are granted in every California divorce when the case is filed.

To read the Federal statutes that define what military service and service member mean, click on Knowledge Base > Military Spouse in your Client Menu.

Finally, you can of course negotiate with your spouse/partner at any time, before or after you file your case, to try to resolve whatever issue(s) are preventing your military spouse/partner from cooperating by signing the military waiver document.

Service of Divorce Papers on My Spouse/Partner  

Under our system of civil justice, a court cannot just begin to make orders about a person or a person’s property out of thin air. The court must have a lawfully recognized reason or cause just to accept the case for filing and then it must have “jurisdiction” or power to make orders regarding the people and property that are the subject of the case. The reason or cause is stated in the Petition that the originator of the civil lawsuit files at the court. In a divorce case, that reason or cause is of course that the Petitioner wants a divorce and this court is the one lawfully empowered to grant divorces.

However, even after the Petitioner has filed the civil lawsuit, thereby providing the court with its cause or reason to act, in the absence of an emergency, the court still cannot just begin to make orders before the subject of the lawsuit, the Defendant (the Respondent in a divorce case) has received lawful notice that a civil lawsuit has been filed against him or her.

Service of divorce papers on your spouse/partner in your divorce case is nothing more than the court telling your spouse/partner that you have filed the case (usually your spouse/partner will know this but still has to be advised officially) and that the court may make orders regarding your spouse/partner, your marriage/partnership, your property and debt and any minor children of the marriage/partnership. In short, anything that is listed or referred to in the divorce Petition becomes subject to the court’s jurisdiction. Jurisdiction simply means that the court has acquired lawful power to make orders regarding the person or object over which it has that jurisdiction.

Method of Serving Papers on My Spouse/Partner:

Even though your case may be an amicable spousal/partner consent divorce, one of you must still “sue” the other and that other must be served with papers. You, the Petitioner, are suing your spouse/partner, the Respondent, for a divorce. Like in any lawsuit, papers filed at court must then be served upon the other party in order to give the other party official notice that s/he has been sued and of what is generally involved in the lawsuit. The other party in this case is your spouse/partner. Serving papers, sometimes called “serving process,” is also how the court acquires legal jurisdiction to grant the divorce and to make other orders in the case.

There are several ways to serve papers upon your spouse/partner. These are listed on the right side of the interview page. Each option involves someone other than yourself serving papers upon your spouse/partner in some manner. This person, the server, must be 18 years of age or older. S/he can be a relative, but s/he should be your relative, not your spouse/partner’s. Occasionally, the validity of a service of process will be challenged later in the case. If the service of process is ruled later to be invalid, you will lose the date of jurisdiction and will have to serve your spouse/partner again. That is why getting the service of process right in the first place is important. It is also why you should keep track of the person who serves papers – as you may need to call that witness later on in your case. This is one area where professional servers, such as the Sheriff or a Registered Process Server, have an advantage over getting your neighbor or workmate to serve your spouse/partner. If you lose track of that person over the next few months, your service of process could be at risk.

Generally, papers can be served upon your spouse/partner either by mail or in person. Service of papers by mail is generally preferred. It costs almost nothing. It is relatively fast and more civilized than someone banging on your spouse/partner’s door. But it does require your spouse/partner’s signature. And there is no time cap on your spouse/partner’s cooperation. If you have a friend or relative serve your spouse/partner by mail, your 6-month minimum waiting period for the divorce to be final does not begin until your spouse/partner signs and returns a document mailed to him or her.

No matter how you serve your spouse/partner, mail or in person, the date of service not only begins the 6-month minimum waiting period for a California divorce but also it begins a simultaneous 30 day period during which you cannot proceed with your case – this allows your spouse/partner to consider the case and to file a response or contest if s/he deems that proper. You cannot proceed with the next step of your case until 31 days after the date on which your spouse/partner was served with the original divorce papers.

Personal Service by California Sheriff or by a Sheriff, Marshal or Constable in Another State or Country (Not Fast)
Personal Service by an Adult (18 or older) Friend or Relative – NOT by you! (Does Not Require Cooperation of Your Spouse/Partner; instructions provided)
Personal Service on My Spouse/Partner in Prison/Jail (Substituted Service on the Prison’s Designated Officer)
Personal Service by a Registered Process Server (Faster, Smarter and More Expensive than the Sheriff)
Mail Service by Regular Mail Within the United States (Usually the Best Method IF Possible – But Requires Timely Cooperation of Your Spouse/Partner)
Mail Service by Certified or Registered Mail Outside California But Within the United States (Easily Avoided – Not the Best Choice)
Mail Service by Registered International Air Mail (Unreliable – But Sometimes the Only Available Option
Newspaper Publication: I Do Not Know Where My Spouse/Partner Is AND Cannot Find My Spouse/Partner to be Able to Serve Papers in Any Other Method (Definitely the Last Resort – NOT a Convenience! Adds 5 weeks, Difficult and Expensive)

HELP ON PERSONAL SERVICE OF DOCUMENTS BY A REGISTERED PROCESS SERVER

The option selected above is an excellent alternative to service of papers on your spouse/partner by an adult friend or relative – because you won’t have to involve friends or relatives in potentially embarrassing personal matters. Instead you get a state-licensed bonded and insured professional to go out and serve the papers correctly and provide you with a Proof of Service that will be better accepted by the court than a Proof of Service from a civilian server. Registered Process Servers also can go lawfully into a gated community to serve papers where your friend or relative could not go. And you have a high degree of certainty that the service of papers will be done correctly because the Registered Process Server is likely to be experienced.

If the Registered Process Server is able to serve papers on your spouse/partner, the process server would then complete and sign a Proof of Service provided by us. That Proof of Service would then be filed at court to establish that your case has been served upon your spouse/partner and that you may proceed to take the next step in the case 31 days after the date of personal service of papers on your spouse/partner. This mandatory 31 day delay is to permit your spouse/partner to file a response to contest the case if s/he wishes to do so. The date on which papers are served upon your spouse/partner is also the date on which your 6-month minimum waiting period begins.

The main disadvantage to using a Registered Process Server is cost. Costs generally run in the $50-75 range. Be careful about services to be performed in rural areas. Be sure to ask whether there are mileage charges. If the Registered Process Server has to go out several times and drive a long way each time before serving your spouse/partner with papers, the cost can be increased significantly.

What you get for the extra cost of a Registered Process Server is a professional server who will be more compliant with your particular requirements than a Sheriff’s deputy. Registered Process Servers will lay in wait, go to unusual places, go the extra mile, use subterfuge, even allowed trickery, use their common sense, question bystanders and follow up on obvious leads. All of these actions will be painfully avoided by a Sheriff’s deputy.

If the Registered Process Server reaches the conclusion that your spouse/partner is not available for service (such as if s/he goes to your spouse/partner’s place of employment and is advised by the employer that your spouse/partner is no longer employed there) and the Process Server has no other possible address for service, the Process Server will provide you with a Not-Found Return. This is an important document to hang onto because if you cannot find your spouse/partner, the Not-Found Return will be part of your application to the court to publish your Summons in a legally adjudicated newspaper for 4 weeks, on the basis that you cannot find your spouse/partner after diligent search, instead of serving your spouse/partner with papers.

An excellent source of Registered Process Servers can be found here. If you have any question or difficulty in finding a suitable Registered Process Server, do not hesitate to contact us at the phone number listed below.

My Employment Information

My Age and Education WHAT IS THE HIGHEST GRADE YOU’VE COMPLETED?

This is simple, but many people do forget which grades are which.

So just as a reminder, 7th and 8th grade are junior high school. If you completed your first/freshman year in high school, you would answer 9 here; if you graduated high school or obtained a high school equivalency, then you’d answer 12 here.

13,14,15 and 16 are the traditional grades for your Bachelor’s or Undergraduate degree. This would be your first college degree program after high school. So obviously if you completed two years of your first college program after high school, you would answer 14 here. If you have completed your first 4-year college degree, your answer here is 16. However, many first college degree programs are now 5 years long. So if you have completed a 5-year first college program, your answer here is 17, not 16.

If you have completed a 2-year Master’s Degree program after a 4-year first college degree, your answer here is 18. A 4-year Bachelor’s Degree, a 2-year Master’s and a 3-year PhD = 21.

My Income Taxes

My Deductions from Salary, Wages or Self-Employment Income

With the sole exception of the last deduction requested (job related expenses) these are amounts of money that your employer deducts from your paycheck on a mandatory basis (the Federal or state income tax law requires it, the union contract requires it or a court order requires it). You don’t see these sums of money. You just see them listed on your paycheck and W-2.

The important thing on this page (with the sole exception of job-related expenses) is not to list anything here that comes out of your pocket. Only list amounts that are deducted from income before you get it.

My Deductions from Income: 

You have to compute one month’s deductions to enter here – even though you may not have paid these deductions in the last month.

So AFTER you have deducted from your GROSS self-employment income all necessary costs of doing business (what are considered your business expenses on your Federal Schedule C), you then must deduct one month’s worth of the deductions requested on this page that apply to you.

If you pay your taxes annually, you would have to divide your last Federal Income Tax payment, your last Social Security payment, etc. by 12. If you pay quarterly, divided instead by 4 to reach your putative last month’s ‘deduction’ for each of these items that apply to you. The important thing is that you can show that you actually did pay such taxes and deductions and that you have converted what you actually paid into a one month snapshot in order to complete the state’s forms.

This page covers a very wide range of potential situations, but the important thing is that you are able to prove with documentation what you have claimed here as your deductions. You should be prepared to do so if the court requests such proof at any time.

Necessary Job-Related Expenses NOT Reimbursed by My Employer:

This is not a deduction by your employer from salary or wages. But it is a deduction you make from your income yourself, and the state permits this deduction to count in figuring your net income. The state simply uses a wider interpretation of the word, ‘deductions’ here.

This asks for necessary job-related expenses that you pay out of your own pocket and which your employer does not reimburse.

Summary of My Assets My Asset Summary:

WHAT ABOUT STUFF THAT IS JOINTLY OWNED WITH MY SPOUSE/PARTNER OR SOMEONE ELSE?

The court is looking for your personal information only. Therefore, if you own any assets with someone else (it doesn’t have to be your spouse/partner though that is the most common situation), only list your share of the net fair market value. For example, if you and your spouse/partner own a savings account that holds $2000, you would list $1000, your half share. If you, your brother and your mother are equal owners of a house that you reckon, on the basis of comparable, could be sold for $250,000 and the outstanding mortgage is $100,000, you would list $50,000. That’s $250,000 minus $100,000 to get the net fair market value of $150,000 and divide that by 3, because there are 3 equal owners, to get your one third share of the net fair market value.

Combined Total of the Net Market Value of All Stocks, Bonds and Other Assets I Could Sell Easily and That are Not Included Below:

The obvious problem here is ‘other assets I could easily sell.’ Who knows what ‘easily’ means. Further, you COULD easily sell anything! So is it what you THINK you could sell easily or what you definitely would be able to sell easily. And how would you know until you tried? And then we’re back to what does ‘easily’ mean.

But the real problem is that other assets you could sell obviously would include real and personal property, which are separate items requested below this item. A car can be sold easily. It is another ‘asset.’ It is also ‘personal property.’ Where should you list it? You can see how much thought the state puts into some of these requests for info.

We make a point of this because it illustrates an important concept. Sometimes you have to assume an attitude. You just have to make sure that it is a reasonable attitude, that you can show it is reasonable and that you are consistent elsewhere.

We recommend that you consider listing only stocks, bonds, T-bills, Treasury Notes, savings bonds and other financial instruments here. Include all other non-cash assets below as either real property or personal property. Obviously, this is not a hard and fast rule. If you would prefer to list assets in a different way, please contact our law office before proceeding.

Personal Property is anything that is not real property. So personal property is anything that is not land or buildings.

Therefore some things you may not think of as personal property are so. Cash is personal property – though that is listed in the first entry on this page. Furniture and furnishings are personal property unless they become attached to the building they are in, in which case they become real property. Retirement funds, 401k plans, clothing, vehicles, electronics are all personal property.

Combined Total of the Net Market Value of all Real Estate I own:   “

Real estate (or real property) includes any legal interest in land and/or buildings. A timeshare is real property. A mobile home registered with the DMV is not real property. A mortgage that you own and that is secured by real estate (in other words, the house owner pays you the mortgage payment – this is not a mortgage payment that you pay) is not real estate.

A lease on the house or apartment you live in is not real estate unless the lease is for a period of time greater than one year OR it contains an option for you to buy the house or apartment.

Net just means that you’ve deducted what you owe on the asset in question. We’re talking about real estate here but this applies to all assets, including cars, furniture, etc.

For example, if you own a house and you reasonably believe that you could sell it for $300,000, that figure is the GROSS fair market value. If you have 2 mortgages on the house and the combined outstanding balance on both mortgages is $250,000, you would subtract that $250,000 from the GROSS fair market value of $300,000 to get the NET fair market value of $50,000. It is that NET fair market value that we are looking for here under both the real estate and personal property questions.

If your GROSS fair market value has gone down since you bought the asset (this almost always happens with cars and sometimes with houses), you could have a negative number for the NET fair market value.

In the prior example, if the GROSS fair market value has gone down to $200,000 since you bought the house, but the total outstanding mortgage balances are still $250,000, you’ve got a negative NET fair market value of -$50,000. Just enter that as ‘-50,000.’

My Cohabitants

Cohabitants are people who live in the same household as you. We have divided them into two groups below. One group of cohabitants is minor children of THIS marriage (if any exist) who reside with you. The other group is all other people (including minor children of other relationships, any adult children and any other relatives or friends) living in the same household as you. Your spouse/partner may also be a cohabitant if you still reside in the same household.

OTHER COHABITANTS

People who reside with you who are NOT MINOR children of this marriage. They could be adult children of this marriage or minor or adult children of another relationship. They could be other relatives or friends. They might include your current spouse/partner if your spouse/partner still resides in the same household as you.

My Monthly Expenses

All of your average monthly expenses except for recurring monthly installment payments. Installment payments include car and truck notes and credit card payments. These will be requested on the next interview page. On this page, we ask for your average monthly expenses listed below. A running total of expenses you’ve entered is kept at the bottom of the page.

The average monthly expenses

All of the average monthly expenses you list on this page must be described in one of these three ways – Actual, Estimated or Proposed. There is no scope to mix and match by calling some expenses ‘Actual’ and some ‘Estimated.’

Actual expenses are accurate current expenses that could be proved, if the court asks you to do so, by invoices and other documentation. Estimated expenses must be fairly accurate estimates but not actual. Whether or not you can prove estimated expenses, they must be reasonably accurate to have any meaning to the court. A common example of a situation in which you should indicate that your expenses are estimated is where you don’t have access to your bills and invoices so are estimating your expenses based upon memory.

Proposed expenses are neither actual nor estimated expenses. Proposed expenses are future expenses that are not yet being paid at all. An example might be if you are about to move into a different house or apartment and so do not have actual expenses or actual expenses that could be estimated. You just don’t know yet, but you don’t want to delay this process for a month or two just to find out. So proposed expenses are perhaps best described as estimated future expenses. Be sure to estimate as accurately as you can – perhaps based upon prior actual expenses.

My Average Monthly Expenses:

Last 2 months? Last 6 months? Last 12 months? Who knows? This is another area where the legislature doesn’t assist and leave great discretion in the hands of the judges and unfortunately, the judges’ clerks.

So you must be reasonable in your averaging. We suggest that you make your averaging at least over 3 months. You’ve seen that the legislature has asked you for your average income over the last 12 months. So if it is possible to list a 12 month average on your expenses that would be great. The important thing is to make your average expenses, together with everything you tell the court in your documents, something that you can substantiate, with documentation, if necessary.

My Mortgage Payment

This is just for mortgage payments you pay on your principle private residence and any vacation or additional homes you reside in full or part time. Any other mortgage payments you pay for rental property you own would be included on the My Income page of the online interview under the self-employment section.

Health Care Costs NOT Paid By Insurance

Any portion of your health insurance premiums deducted by your employer from your salary or wages should be listed on the My Deductions page and any portion of your health insurance premiums you pay out of your own pocket should be listed here on this page.

But don’t forget that this entry calls for any health care expenses not paid by insurance. Your premiums are health care expenses and they are obviously not paid by any insurance. But this is also for any other health care expenses you pay out of pocket.

So this would include any deductibles, co-payments, doctor’s visits or prescription costs not covered by insurance as well as the premiums you pay to obtain that insurance.

Child Care I Pay:

Child care is money you actually pay to a day care center, pre-school facility or similar facility for the care of your child or children. You pay this money either directly or indirectly through your spouse/partner to the care provider AND CAN PROVE IT. Bear in mind that child care is NOT child support. Child care is in addition to child support and is normally paid to enable one or both parents to work. So if you pay an agreed or court ordered amount of money to your spouse/partner for child support, do NOT list that here. That is an expense for a different purpose – to support your child(ren). If you pay child support but not child care, then list nothing here. If you receive child support from your spouse/partner and pay some of that child support in child care, list that amount here.

You could really skew this figure by listing the cost of your Hawaiian vacation in the month in which you pay for it and you do not average it out. That is what the court definitely does not want you to do here.

So please use common sense. If you take one vacation a year and it costs $4000, your monthly average is $333. Padded expenses are so easy for the judge to spot. They also cause the judge to tend not to believe your other expenses that are listed. Be careful. Always make sure you can substantiate what you list in a reasonable way.

Don’t forget to average out things like Christmas gifts, birthday gifts, Vegas trips too.

My Savings and Investments:

This is pretty much the same distinction as for health care expenses above. If your employer deducts some savings from your paycheck and pays it into a credit union account or your private retirement account, include those amounts on the My Deductions page of the online interview. But if you take net income (after deductions) and you put some of it directly into a savings accounts, 401k, IRA, mutual fund, unit trust or some other investment vehicle, list all those amounts here – on an averaged basis of course. As always, documentation is key. You must be able to support and prove what you claim to be your expenses. All of the info requested in the online interview goes onto legal forms that you sign under penalty of perjury and file at court.

My Installment Payments

Recurring monthly installment payments. These would typically include credit and charge card payments, lines of credit, installment loan payments, car and truck payments, personal loans, etc.

This should be the name of the creditor. Usually this will be an institutional name such as Citi, Wells Fargo, Bank of America, Wachovia, Chase, Bob’s Furniture Store, GMAC, etc.

Be real careful if you will list some non-institutional name such as your sister or neighbor. While the court knows that people borrow money from family and friends all the time, it also knows that there can be fraud involved if you are listing debts owed to such lenders. You may be asked to prove the loan, which can be difficult.

My Property and Debt

All items of property or debt you decide to list in your case. Each item you list can be either community (joint) property/debt or the sole and separate property/debt of one of you.

There is no legal requirement to list anything, but it is a very good idea to list your property and debt. Many clients prefer not to list property and debt for reasons of simplicity and privacy, and that usually works out. But if you don’t list property and debt, you get no court order as to who gets what and who pays what in case a dispute arises later on.

The My Property and Debt page of the online interview covers all items of property and debt that you and/or your spouse/partner own or owe.

Property includes all assets. These are usually tangible objects like land, buildings, vehicles, items of furniture, jewelry, cash, etc., but they also include intangibles like retirement accounts, other financial institution accounts and the cash value (not the face value) of life insurance. Property also includes hybrid items that have both tangible and intangible aspects, such as businesses, partnerships and royalties. Property includes every type of asset of value or even potential value. So for example, if you have commenced work on a new business, that potential business is an item of property. That is not to say that your spouse/partner is entitled to any of its value, though if you commenced work on it during the marriage/partnership, s/he probably is, but it is still an item of property. Also personal injury damages not yet quantified are a contingent asset.

Debts are any and all value you and/or your spouse/partner owe to any third party. Those debts can be secured by property. If they are, they will be included as part of that property. They can be unsecured debts, such as credit card debts, personal loans, student loans, taxes or support arrearages owed to a prior spouse/partner or for the support of children NOT of this relationship.

Debts can include a contingent debt that is not yet quantified but has been incurred, such as losses from a business failure or damages that may be awarded against you in the future but are currently unknown. If your case involves some “future” or as-yet unquantified debt that arose from the period of the marriage/partnership, you should speak to a lawyer before proceeding in your case.

Property and debt include community, quasi-community and separate property. These are defined in the very next Help Item on this page, but briefly, community property/debt is jointly owned/owed and separate property debts is owned/owed by just one of you. Quasi-community property is property acquired by a married person in a non-community-property state that would have been community property if it had been acquired in California.

You and your spouse/partner should be in complete agreement on the existence, nature, listing and disposition of all property and debt. If you are not, again, you should contact our law office on this specific issue before proceeding.

WHAT IS COMMUNITY AND SEPARATE PROPERTY/DEBT?

The first thing that must be said is that there are entire books and law school classes taught on that question. You won’t learn everything there is to know about the topic by reading a few Help tips, no matter how good they are. But you may well learn all that you need to know. Only you can determine whether the knowledge you obtain from our Help is sufficient in your case or that you need to contact our law office on some aspect of property and debt before proceeding.

Pursuant to Family Code 760: “Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage/partnership while domiciled in this state is community property.”

What can be added to this deceptively simple definition is that it includes debt, even though debt is not specifically mentioned. Debt is considered ‘negative property.’ So any property or debt acquired (or incurred) by a married person during the marriage/partnership while domiciled in California, is community property or debt.

“During the marriage/partnership” means from the date of marriage/partnership to the date of separation, the date you stopped residing together as husband and wife, inclusive. You might remember that we told you back on the Marriage Statistics page of the interview just how important the date of separation you entered there would become.

Quasi community property/debt is property/debt acquired/incurred while you were domiciled in another state and which would fit the above FC 760 definition if you had acquired/incurred it while domiciled in California. By the way, ‘domicile’ has a specialized meaning that does not always equate to ‘reside.’ Again, while the vast majority of people do not have any issues of domicile in their case, if there were periods of time when you physically resided in one state (perhaps while on active military duty or accompanying an active military duty spouse/partner) but considered another state as home and intended at all times to return to that state, you might have an issue of domicile that requires legal advice. However, it should also be noted that quasi-community property/debt is almost always treated just like community property/debt. So the issue may not be significant, but has to be mentioned at least.

Pursuant to Family Code 770, the separate property of a married person is: “(1) all property owned by the person before marriage/partnership. (2) All property acquired by the person after marriage/partnership by gift, bequest, devise or descent. (3) The rents, issues and profits of the property described in this section.”

So obviously if you own a rental property that you owned prior to the marriage/partnership, and you never changed its nature (“transmutated” is the legal phrase) during the marriage/partnership by refinancing the debt secured by it into joint names or by transferring the legal title into joint names, etc., then the rents from that separate property rental are themselves separate property. The rule is that you trace the proceeds back to their source. If it’s a community property source then the proceeds are community, and vice versa.

Subsection 2 of FC 760 concerns property that is separate property because it is given to or inherited by (under a will or not) a married person. Facts dictate. Something given to you, for example, on your birthday and specifically for your birthday is your separate property. Wedding gifts, however, are clearly in the nature of gifts to both of you, so they are not separate property, regardless of whose side of the family they came from.

What difference does it make whether your car is your separate property CONFIRMED by the court as your separate property or community property AWARDED by the court to you? Practically not much difference. If it’s community property, it can be used by your spouse/partner in an argument to increase his or her share of the community estate, whereas there is no limit or requirement to equalize a married person’s separate estate.

As far as income goes, a married person’s income ceases to be community and becomes separate on the date of separation. There’s that date again.

Finally, there is a lot to be said for simply having an agreement with your spouse/partner simply as to who gets what and who pays what. That agreement will be reduced to writing as part of this case. If you both sign it, a lot of these legal niceties are camouflaged and don’t really mean too much. The state allows you and your spouse/partner the opportunity to figure out what to do with your own property and debt. If you cannot, then the law (what’s mentioned above and MUCH more) takes over.

TO LIST OR NOT TO LIST

Our help system is informational but is not a substitute for legal advice based on a complete assessment of the facts and circumstances of your case. If you have any questions or doubts about any issue covered in this help item, you should definitely contact our law office before proceeding.

That is a question only you can answer. However, this is a critical issue on which you should definitely contact our office if there is any confusion or doubt.

If you list nothing at all and you and your spouse/partner remain in agreement and everyone keeps smiling forever and no resentment or anger ever arises in the future about who got what and who paid what, then no problem. You’ve avoided the hassle and lack of privacy of listing all of your property and debt. Divorce records are generally public access.

But if you decide to take a chance and not list any property or debt, so that the court knows nothing about it and makes no orders regarding its ownership and payment, and a problem arises later, you will be back in court to resolve the property and debt issues from the very beginning. You might say that such would have happened anyway, even if you had listed everything, but the counter argument is that if you had listed and obtained court orders concerning your property and debt, you might not have developed the problem in the first place.

Additionally, if you do not list and a problem arises and you’re back in court fighting, you can almost bet that the Petitioner (you) will be blamed for not listing in the first place.

It should also be noted that the type and extent of the property and debt you have might be the determining factor as to whether you list or not. If you have no debts, only have a few pieces of furniture and 2 cars and each of you already has possession of his or her car and has it listed, insured, etc. in his or her own name, then maybe you don’t need to list. If you have a lot of assets, particularly those held in joint names and that are registered somewhere (real estate, vehicles, businesses, etc.) then the risk of not listing goes way up. Also, let’s say that you are getting the house, while you may not want to list the house so that it stays in your joint names (as far as the lender is concerned) so that no red flags are raised with the lender, your spouse/partner may want to buy another house and will be looking to have you list that house so that both of you have access to a court order that can be used to transfer title of the property and get the house loan out of your spouse/partner’s name so that s/he can qualify for his or her own house loan. This is obviously an area of considerable potential difficulty – concerning whether or not you list.

So you can see that it really has to be your decision. The consequences of a bad decision could be great.

If you do decide to list property and debt, the next question, and perhaps the biggest one, is to what extent you should list. Again, for the same reasons, the decision must be yours.

We can tell you that most clients will list large assets and debts only. However, there are clients who literally list the shower curtain hooks. And you are welcome to do so. We have no limitations and can accommodate anything you list.

Very often clients will use phrases that group many assets together. These phrases are perhaps not quite as safe as a complete list of every knife, fork and spoon, but they are certainly convenient. For example, you can use phrases such as, “all household furniture, furnishings and appliances currently in my/my spouse/partner’s possession or control,” “all cash contained in any Bank of America account held currently in the joint names of the parties,” etc. You can see that such phrases are convenient, but not as precise as listing, for example, every Bank of America account number and the amounts contained in each.

We will provide examples of such phrases should you decide to use them. Of course, you can also create your own phrases, which may be a balance between convenience and safety.

WHAT IF MY SPOUSE/PARTNER DOES NOT AGREE WITH MY PROPERTY/DEBT DIVISION PROPOSALS

Our help system is informational but is not a substitute for legal advice based on a complete assessment of the facts and circumstances of your case. If you have any questions or doubts about any issue covered in this help item, you should definitely contact our law office before proceeding.

What if my spouse/partner and I have discussed our property/debt division and I think we have an agreement but s/he seems shaky on this and could change his or her mind later on?

Family Code 2550 states: “Except upon the written agreement of the parties, or on oral stipulation of the parties in open court, or as otherwise provided in this division, in a proceeding for dissolution of marriage/partnership or for legal separation of the parties, the court shall, either in its judgment of dissolution of the marriage/partnership, in its judgment of legal separation of the parties, or at a later time if it expressly reserves jurisdiction to make such a property division, divide the community estate of the parties equally.”

Translated, that means that if you and your spouse/partner do not prove your property/debt agreement to the court by filing at court the signed written agreement that we will be preparing for you, then the judge is obligated by law to divide your assets and debts right down the middle or pretty close to it. That often means that neither party is happy with the result. It also means that if the values of property and debt are in dispute, the court can submit the whole matter to a lengthy arbitration process.

So if you and your spouse/partner are in agreement on your property/debt division (you REALLY want to be) and remain so OR if you fall out of agreement but reach some other agreement (a common occurrence), then there is no problem. We will prepare your written agreement for signatures as many times as you and your spouse/partner want to fall out of agreement and then reach a new agreement. There is no limit, though there would certainly be delay in your case while you and your spouse/partner reach each new agreement.

Another factor is often that there is simply a human limit to the number of times there will be a re-negotiation. Perhaps after the second or third re-negotiation, one of you will become tired, untrusting or unhappy with the delay and will seek advice from a lawyer and act based upon that advice.

This is an example of a common sequence of events in divorce cases – once one thing begins to go wrong, others follow and they all escalate and then everything goes wrong. While you do not want to be a push-over in this case, it is generally good strategy to keep everyone smiling, if you can.

WHY DO WE ASK FOR BOTH A SHORT AND LEGAL DESCRIPTION OF EACH ITEM OF PROPERTY AND DEBT?

Judicial Council forms are often extremely short on physical space and even the attachment/extension forms that have become standard have physically small spaces in which to list things. Yet the Marital Settlement Agreement and the actual divorce judgment require the full legal description, some of which can be exceedingly long, of all items of property and debt. We handle this by requesting both a short and legal description of each asset and debt.

The short description can really be quite short but it should be precise enough that both you and your spouse/partner, who will be served with the papers containing these descriptions, can tell straight away which object or debt is described. If there is confusion and a dispute arises later, you could get an order against you for your spouse/partner’s attorney’s fees if you caused the confusion by not describing each item well enough.

Legal descriptions should be sufficient that a disinterested party, such as a Sheriff’s deputy called out to enforce the terms of your court judgment, can tell what s/he is looking at or for. If that deputy cannot tell from your description what is being referred to, s/he will walk away and claim that the order is not sufficiently precise. Because deputies want to walk away from marital situations to begin with, you should not give them an excuse.

As always, some examples of short and legal descriptions of items of property and debt would be beneficial. Please use and adapt any of the examples below.

Please note that in the legal description of items like bank and other financial institution accounts, insurance policies, credit card debts, bank loans, car loans and all other items that have account identifier numbers, pursuant to California Rule of Court 1.20(b) (see the privacy entry in Knowledgebase in your Client Menu), exclude all but the last four digits of all financial account numbers. For example, a Visa or Master Card account should be listed as XXXX XXXX XXXX 1234.

There are many more examples of how to list various items of property and debt in another Help item on this page. The table below is intended only to illustrate the difference between short and legal descriptions of the same item of property or debt. Please note that some descriptions of common items are so simple that the short and legal descriptions are the same. A couple of those are included below to illustrate:

EXAMPLES OF LEGAL DESCRIPTIONS OF VARIOUS TYPES OF PROPERTY AND DEBT?

The legal description is basically just the full and complete description of an object. All license numbers, account numbers, serial numbers and legal descriptions of real estate and buildings should be included. The general idea is to provide enough specific information that the item can be distinguished as much as is practical from every other object in the world. Obviously, if you’ve got a red couch, there’s not a lot you can do – the legal description might be “red 4-person couch from living room.”

Please note that in the legal description of items like bank and other financial institution accounts, insurance policies, credit card debts, bank loans, car loans and all other items that have account identifier numbers, pursuant to California Rule of Court 1.20(b) (see the privacy entry in the Knowledge Base in your Client Menu), exclude all but the last four digits of all financial account numbers. For example, a Visa or Master Card account should be listed as XXXX XXXX XXXX 1234.

Below are some examples of legal descriptions of different types of property and debt with explanatory notes:

WHAT ABOUT DEBT ATTACHED TO AN ITEM OF PROPERTY

Our help system is informational but is not a substitute for legal advice based on a complete assessment of the facts and circumstances of your case. If you have any questions or doubts about any issue covered in this help item, you should definitely contact our law office before proceeding.

If you have an item of property (car, boat, TV, couch, diamond ring, anything) that is secured by an item of debt, list them as ONE ITEM. Do NOT list the property as an item of property and the debt as a separate item of debt. The court wants to deal with them both as one item – even if there will be a hybrid disposition (such as where you get the property and your spouse/partner pays the debt).

Before we get to how to do that, bear in mind what “secured by” means. If you incurred a debt to buy something, but that debt was not “secured by” the item, then you must list the property and the debt separately because they are two separate unconnected items. The important distinction is whether the debt is “secured by” the property.

So for example, if you used an existing Amex line of credit of $10,000 to buy a boat, that $10,000 debt is not secured by the boat. These are two separate items. That $10,000 line of credit was already yours. You were pre-approved to take that money without any added conditions. And you could have used that $10,000 for any purpose. You could have paid off other debts, bought furniture, a vacation or the boat. American Express doesn’t know what you bought and doesn’t care. They were not advised, attached no additional conditions to the loan and have no claim on the boat. You didn’t have to apply to them separately for the loan specifically to buy the boat.

Similarly, if you borrowed $500 from your mother to buy a TV, it is highly likely that your mother did not make you agree in writing to give her the TV if you stiffed her on the $500. If she did make you sign a WRITTEN contract including that term, then the $500 IS secured by the TV.

But if you went to Citibank and applied for a boat loan and they had to approve the boat, the price, an inspection and your ability to repay and the loan was conditional on the boat purchase (no boat-no money), that debt is secured by the boat. Obviously, a home mortgage loan would be secured by the house and land.

A good test of whether the property and debt are considered one item or two is whether the creditor could take the property if you don’t pay the debt. In our examples above, if you don’t pay Citibank, they can take your boat. If you don’t pay Amex, they may pursue other avenues against you, but they cannot take your boat. There was not a loan made conditional on the boat so there was no security for the loan. Again, if the creditor can’t take the property, the property and debt are listed as two separate items. If the creditor CAN take the property, the property and debt are one connected item.

The item of property and its attached debt should only be listed as the legal description of the property, not as the short description. The short description should be just the description of the item of property.

So how to list an item of property with an attached debt that is secured by the property? Again, examples are good. You should be able to adapt any situation to one or more of the following examples.

1. 2000 Cadillac Escalade license #123456, subject to an encumbrance of approximately $1800 in favor of Joe’s Auto Loans account 10101010 (This is where you know all the information.)
2. 2010 Sea Ray Sundancer boat hull #7687KGJH087097053, subject to an encumbrance in favor of San Diego County Federal Credit Union (This might be a situation in which you know that there is a debt and the name of the creditor but you do not know and cannot find out the balance because your spouse/partner has the paperwork and won’t tell you. That is not a problem. Just word it this way.)
3. 2-carat white gold and diamond engagement ring, subject to any encumbrance thereon (You can use this wording when perhaps you know that there was a debt at the time of purchase but you are now not sure if the debt has been paid.)

4.Samsung 55″ LEd HDTV, subject an encumbrance of approximately $1200 thereon (This might be when you know that there is a debt and the amount, but cannot find the name of the creditor from your spouse/partner who may be paying the monthly payment.)

NOTE: The above 4 examples are examples of legal descriptions of items, NOT short descriptions. So, for example, the short description of the first example above would be, “2000 Cadillac Escalade.” The short description of example #2 would be, “2010 SeaRay boat.” The third example’s short description would be, “diamond ring,” and the final example’s short description could be, “Samsung TV.”

WHAT IF THIS ITEM IS A CREDIT CARD DEBT OR SOME OTHER REVOLVING DEBT?

It’s tough enough to remember even the month and year when property and debt were acquired, but what if the item in question is a credit card debt or some other type of revolving debt? What is requested here – the date when I first took out the credit card or opened the revolving account – or the date when the first existing debt was incurred?

It’s the latter. An example will help. You took delivery of a Chase Visa card in May 2002. It has a current balance of $5000. $4000 of that $5000 was incurred in May 2009, $500 was incurred in January 2009 and $500 was incurred in November 2008. The correct answer here is November 2008. That was when you incurred the first debt that is still outstanding.

In the same example, if you’re just about to pay $500 as a monthly payment to Chase, that will pay off the November 2008 incurred debt. Under those circumstances, the new correct answer would be January 2009, when you incurred the second $500 debt, which becomes the oldest outstanding debt on the card.

In computing the month and year of the oldest outstanding debt, use the first-in-first-out principle. Payments that you make to the card or to the account pay for the oldest balance first.

This can become much more difficult when you use your card for a lot of smaller purchases. Under those circumstances, monthly interest payments can be larger than some of the individual debts. Figure out how much you incur on the card or account in an average month. Divide the current outstanding balance by that average monthly amount to get the likely number of months ago that the oldest outstanding debt was incurred.

There can be some estimation on this. As always, get as close as you can and be prepared later to substantiate how you arrived at your answer. Like so many of these details in divorce cases, they are never problems until they become problems and then they are big problems.

WHAT IS COMMUNITY AND SEPARATE PROPERTY/DEBT?

The first thing that must be said is that there are entire books and law school classes taught on that question. You won’t learn everything there is to know about the topic by reading a few Help tips, no matter how good they are. But you may well learn all that you need to know. Only you can determine whether the knowledge you obtain from our Help is sufficient in your case or that you need to contact our law office on some aspect of property and debt before proceeding.

Pursuant to Family Code 760: “Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage/partnership while domiciled in this state is community property.”

What can be added to this deceptively simple definition is that it includes debt, even though debt is not specifically mentioned. Debt is considered ‘negative property.’ So any property or debt acquired (or incurred) by a married person during the marriage/partnership while domiciled in California, is community property or debt.

“During the marriage/partnership” means from the date of marriage/partnership to the date of separation, the date you stopped residing together as husband and wife, inclusive. You might remember that we told you back on the Marriage Statistics page of the interview just how important the date of separation you entered there would become.

Quasi community property/debt is property/debt acquired/incurred while you were domiciled in another state and which would fit the above FC 760 definition if you had acquired/incurred it while domiciled in California. By the way, ‘domicile’ has a specialized meaning that does not always equate to ‘reside.’ Again, while the vast majority of people do not have any issues of domicile in their case, if there were periods of time when you physically resided in one state (perhaps while on active military duty or accompanying an active military duty spouse/partner) but considered another state as home and intended at all times to return to that state, you might have an issue of domicile that requires legal advice. However, it should also be noted that quasi-community property/debt is almost always treated just like community property/debt. So the issue may not be significant, but has to be mentioned at least.

Pursuant to Family Code 770, the separate property of a married person is: “(1) all property owned by the person before marriage/partnership. (2) All property acquired by the person after marriage/partnership by gift, bequest, devise or descent. (3) The rents, issues and profits of the property described in this section.”

So obviously if you own a rental property that you owned prior to the marriage/partnership, and you never changed its nature (“transmutated” is the legal phrase) during the marriage/partnership by refinancing the debt secured by it into joint names or by transferring the legal title into joint names, etc., then the rents from that separate property rental are themselves separate property. The rule is that you trace the proceeds back to their source. If it’s a community property source then the proceeds are community, and vice versa.

Subsection 2 of FC 760 concerns property that is separate property because it is given to or inherited by (under a will or not) a married person. Facts dictate. Something given to you, for example, on your birthday and specifically for your birthday is your separate property. Wedding gifts, however, are clearly in the nature of gifts to both of you, so they are not separate property, regardless of whose side of the family they came from.

What difference does it make whether your car is your separate property CONFIRMED by the court as your separate property or community property AWARDED by the court to you? Practically not much difference. If it’s community property, it can be used by your spouse/partner in an argument to increase his or her share of the community estate, whereas there is no limit or requirement to equalize a married person’s separate estate.

As far as income goes, a married person’s income ceases to be community and becomes separate on the date of separation. There’s that date again.

Finally, there is a lot to be said for simply having an agreement with your spouse/partner simply as to who gets what and who pays what. That agreement will be reduced to writing as part of this case. If you both sign it, a lot of these legal niceties are camouflaged and don’t really mean too much. The state allows you and your spouse/partner the opportunity to figure out what to do with your own property and debt. If you cannot, then the law (what’s mentioned above and MUCH more) takes over.

WHAT IS THE GROSS FAIR MARKET VALUE OF AN ASSET in Santa Clara?

The current gross fair market value of any asset is the amount of money you could sell the item for reasonably soon on the open market to an unrelated buyer.

“Reasonably soon” will mean different time frames for different items. If you’ve got a 1964 Mustang in superb condition, you would not have to sell it in a week at $2000. But if you’re listing a beat-up 8-year old washing machine, the time frame would need to be short. If an asking price of $50 would take 2 months and $25 would take 2 days, the current gross fair market value is $25.

Current gross fair market value is NOT current replacement value, i.e. what it would cost now to replace the item with a new one.

For most common household items, particularly the less-expensive items, you probably have a pretty good idea of their fair market value. If not, you can get some excellent guidance on the current gross fair market value of most common items by looking at similar items in the local Penny Saver or by logging on to Craig’s List. Don’t forget that people don’t always get their asking price, so the likely gross fair market value of many items is likely to be a little below the average asking price in the Penny Saver or Craig’s List.

Kelly’s Blue Book and Nada are always good sources of current gross fair market values for vehicles. Nada has a boat section too.

A local realtor or Zillow would be good sources of values of real estate.

Valuations of active businesses are complex and should be done by a professional to prevent future allegations of either under-estimating or over-estimating. Valuer’s fees now can save much more in attorney’s fees and potential civil sanctions later. Don’t take the chance – unless you and your spouse/partner are iron-clad agreed. Contact our law office for info on business valuations.

Valuations of pensions are even more complex. If a pension plan is one of your largest assets and therefore it cannot be awarded to one of you, it has to be divided. Perhaps one of you is buying out the other from his or her pension plan and accordingly, you will need a valuation of that pension to know how much a buyout is necessary. Again, contact our law office for info on valuing a pension plan.

If you have specialty items like coin collections, antiques, etc. and you cannot agree on a valuation, you may need to have them value in writing by a specialist valuer in the appropriate field.

As always, use your best judgment and be prepared to substantiate your estimate with examples.

WHAT IS THE AMOUNT OF DEBT REQUESTED HERE?

That depends on whether this item is an item of property or debt.

If it’s an item of debt, the amount requested here is simply the current outstanding balance on that debt.

If it’s an item of property, the amount of debt requested here is the amount of debt secured by the item of property. For example, if you have a car that’s worth $5000 and the balance on the car loan is $3000, then $3000 is the amount requested here. If you have a first house mortgage of $300,000 and a second mortgage of $50,000, the debt requested here is $350,000.

“Secured by” means that you incurred the debt to get the asset AND that if you don’t pay the debt, the creditor can take the asset.

If the creditor can’t take your asset, then the money you owe to that creditor is not “secured by” the asset in question. So for example, if you get a $5000 signature loan from American Express and use that $5000 to buy a car, American Express knows nothing about that car. Their name doesn’t appear anywhere on the purchase contract. They cannot take your car. So that $5000 is NOT secured by the car. You would list the American Express debt as its own item of debt with a value of $5000.You would list the car with a gross fair market value of $5000 (if you just bought it) and no debt.

Equalization of Division of Community Property and/or Debt:

WHAT DOES EQUALIZATION OF DIVISION OF PROPERTY MEAN AND DO I NEED IT?

As you may be aware from reading the Knowledge Base in your Client Menu or from reading other help items, Family Code 2550 states:

“Except upon the written agreement of the parties, or on oral stipulation of the parties in open court, or as otherwise provided in this division, in a proceeding for dissolution of marriage/partnership or for legal separation of the parties, the court shall, either in its judgment of dissolution of the marriage/partnership, in its judgment of legal separation of the parties, or at a later time if it expressly reserves jurisdiction to make such a property division, divide the community estate of the parties equally.”

Essentially this means that unless you and your spouse/partner agree otherwise in writing, your community property estate, which generally includes all assets and debts acquired during marriage/partnership and before your date of separation, MUST be divided equally. If you are not dividing your community estate equally, or pretty darn close to equally you’d better have a written agreement between you and your spouse/partner to satisfy the court that you are in line with Family Code 2550.

You can instruct us to prepare that Marital Settlement Agreement for you on the My Other Requests page of the online interview. If you are proceeding page by page through the online interview, that page is next in your interview, so don’t worry.

If you are not going to propose a substantially equal division of your community property and debt AND you will not be requesting that we prepare your Marital Settlement Agreement OR your spouse/partner will later refuse to sign that agreement for an unequal division of community property, problems may well arise when you submit your third and final batch of legal documents to the court.

Those problems would likely be that we will not be able to avoid a court hearing for you, as can normally be done. The judge could well want to hear from you as to why there should be an unequal division of community property and debt. You would have to go physically to court to testify. There could certainly be a delay in processing your case.

And in the final analysis, the court could deny your unequal division of property and debt. Under such circumstances, the judge would generally also deny your divorce judgment itself unless you are represented by an attorney at that time. The judge would surmise that if he granted you the divorce on the condition that you would return to court later with an equal division of property and debt, you might not do so if you had your divorce. An attorney from our law office acting for you would provide the court with an undertaking, enforceable against him or her, that you will so return to court later on even though you already had your divorce.

The difficulty with having an equal division of community property and debt is sometimes that the community estate is very small and does not lend itself to an equal division or that one party has some strong personal attachment to certain more valuable items of the community estate and the other party does not particularly object to an unequal division but won’t cooperate by signing an agreement.

An example would be that perhaps there is only one item of community property – let’s say a $10,000 car with no debt attached. If you sold the car and split the proceeds of sale, you’d both lose money, you could lose a car that you were personally attached to and neither of you would have enough to replace the car with one of similar quality. If the other party already has a separate property car or just doesn’t care that you will get the $10,000 car and s/he will get nothing, you can have a written agreement to resolve any problem with Family Code 2550. But you could also have an equalization payment between you.

In our $10,000 car example, if you get the car, you’d have an asset worth $10,000. Your spouse/partner would have nothing. To equalize, you would pay your spouse/partner $5000. Then you’d have ($10,000 minus $5,000) $5000 and your spouse/partner would have $5,000. That’s an equalization of division of community property and debt. It is not taxable spousal/partner support or alimony because it would be written into your Marital Settlement Agreement and judgment as specifically a division of property connected to divorce – not a taxable event.

You can have an equalization payment with or without a Marital Settlement Agreement. Obviously, if you have a Marital Settlement Agreement between you that would resolve what would otherwise be an unequal division of property, but what if your spouse/partner won’t agree to an unequal division.  Then you might agree to an equalization payment AND have a Marital Settlement Agreement.

Because your proposed division of community property and debt appears right now to be unequal, this interview page will ask you if you wish to have an equalization payment and if so, what are the terms of it – how much, payable when, etc.

If you are in the middle of entering your community property and debt and will be back later to enter more, just answer, “No,” that you don’t want an equalization payment and then click “Next.” If you and your spouse/partner agree that you do not want any equalization payment, also answer, “No” and then click “Next.”

If you and your spouse/partner do want there to be an equalization of division of community property and debt, answer “yes,” and then further questions will be asked about the terms of that equalization payment or payments.

My Additional Requests

My Spousal Support Requests:   WHAT IS SPOUSAL/PARTNER SUPPORT?

Spousal Support (sometimes called alimony or maintenance) is simply financial support paid by a spouse/partner or ex-spouse/partner for the support of his or her spouse/partner or ex-spouse/partner. It is intended to pay the living expenses of the recipient spouse/partner. It is intended, as far as is practical, to maintain the same standard of living as a spouse/partner enjoyed during the marriage/partnership. Spousal support is separate and distinct from child support. Spousal support terminates upon the death of either party, the remarriage/partnership or cohabitation of the recipient or upon a fixed date ordered by the court. Either party can apply to the court for modification of an existing spousal/partner support order at any time during its existence.

There are places on this page of the interview for you to indicate whether either of you wants spousal/partner support, which one of you, if so, how much, for how long and payable when.

You can also put Spousal Support “on the shelf” for Later: Reserving (sometimes called “retaining”) jurisdiction over the issue of spousal/partner support simply means that the court is asked not to make an actual dollar figure order but instead to place the issue of spousal/partner support “on the shelf” for either party to come back to court at a later time. The court will want to place a time limit on how long it will retain jurisdiction. The longer the marriage/partnership, the less restrictive that time limit will be. Just like with an actual dollar order for spousal/partner support, the court’s reserved jurisdiction on spousal/partner support will always cease upon the death of either party or the remarriage/partnership of the party for whom spousal/partner support is reserved. Reserving spousal/partner support is a good way to provide a safety net, particularly after a longer marriage/partnership or when one spouse/partner has health problems. Perhaps at the time of the divorce both parties are self-supporting, but perhaps the financially weaker of the two has only just gone back into the work force after many years out of it. That party’s interests would not be served by a complete and final waiver of spousal/partner support. Reserving jurisdiction on spousal/partner support usually occurs in long term marriage/partnerships of 10 years or greater duration, although no judge will reject the proposal in any situation – if the parties agree.

There is a place to indicate on this page of the interview if either or both of you wants the court to reserve jurisdiction on your spousal/partner support.

Marriage of Long Duration: It is mandatory for the court to reserve jurisdiction indefinitely on the issue of spousal/partner support for either party in a marriage/partnership of long duration when requested by either party to do so. A marriage/partnership of long duration is generally one of 10+ years between date of marriage/partnership and date of separation, but a court can find a shorter marriage/partnership to be one of long duration for this purpose. This basically means that if you have a marriage/partnership of close to 10 years duration or longer, then unless you and your spouse/partner agree in writing (in the written agreement we will prepare for you [see below on this interview page]) that there will be no spousal/partner support and no reserving jurisdiction on spousal/partner support, the court will reserve jurisdiction when requested to do so.

If you have a long marriage/partnership and you cannot provide the court with a written agreement to waive spousal/partner support for both of you, you can still request that neither of you is awarded spousal/partner support or has his or her spousal/partner support rights reserved, but Family Code 4336 is clear that the court does not have discretion. Such a request may result in rejection of your proposed judgment and/or setting a court appearance where you will have an opportunity to explain to the judge in open court. As in so many other areas of divorce, having a cooperative spouse/partner and a written agreement to prove that cooperation is good and usually results in getting what you want.

Spousal Support is taxable and tax deductible: Child support is not tax deductible or taxable. Spousal support is generally taxable to the recipient and tax deductible to the payer (though consult your tax adviser for your particular situation). The IRS is extremely aware of efforts to make child support look like spousal/partner support, and there are rules in place to prevent it. Definitely consult a tax preparer/accountant before proceeding if you have any questions on this issue.

Spousal support is not division of property or debt: Spousal support is also to be distinguished from sums paid to equalize the division of property. Let’s say that you and your spouse/partner agree that you will buy your spouse/partner’s 50% interest in your community property Toyota Celica, which has a net fair market value of $1000. To close the deal, you pay your spouse/partner $500 and your spouse/partner signs over the pink slip. The payment of that $500 is a tax-free payment made between spouse/partners or ex-spouse/partners in order to complete an agreed division of community property. It is not the tax deductible payment of spousal/partner support. Be careful and definitely consult a tax preparer/account before proceeding if there are any questions on this issue.

Welfare: If the intended recipient of spousal/partner support receives TANF (formerly AFDC) or Food Stamps for the support of any minor child of this marriage/partnership, do not proceed without discussing the spousal/partner support issue with your county agency welfare caseworker. When you signed up for welfare, you signed over to the county all right to your spousal/partner support from this marriage/partnership, as well as your child support rights. The county may or may not want to pursue spousal/partner support. Your case worker may tell you that you should “reserve jurisdiction” (see above) on the issue of spousal/partner support.

Mandatory Wage Assignment: Just as with child support, a Wage Assignment is now mandatory in all cases in which spousal/partner support is ordered. A Wage Assignment is a court order directed at the employer of the party ordered to pay the support. It directs that employer to commence, within 10 days of being served with the Wage Assignment, deducting an amount sufficient to meet the court ordered amount from the wages of the paying spouse/partner and pay that amount to the court ordered recipient of the court order. The employer is ordered to continue to so deduct and pay until the term of the support order is satisfied, until the paying spouse/partner no longer receives wages from that employer or until a further order of the court, whichever event occurs first.

But the Service of the Wage Assignment can be Postponed: However, the legislature not only recognized the need for such wage assignments but also that some couples would prefer not to invoke the wage assignment for reasons of amicability, practicality or perhaps even a desire to avoid employment embarrassment for the party ordered to pay the support. Accordingly, a partial “loophole” was built into the law. The Wage Assignment was still made mandatory, but its service upon the employer was not mandated if the parties agreed. The service of the Wage Assignment can be stayed or postponed, even indefinitely, providing that the paying party does not default (become late on any payment or portion of a payment) on the support order. If the service of the Wage Assignment is stayed and the party ordered to pay support becomes delinquent on any support payment, the other party can file simple paperwork at court, have the stay of service of the Wage Assignment lifted and then serve Wage Assignment on the employer of the party ordered to pay the support. A Wage Assignment can be served on most employers, even self-employed. Military personnel and federal government workers have been immune from state court Wage Assignments, but that protection is in jeopardy. There are new potential law changes affecting this area. Again, you and your spouse/partner must agree on this issue. Service of Wage Assignments is not automatically bad. The Wage Assignment becomes just like any other deduction from income, and it’s taken care of without the support payer having to remember or do anything further.

There is a place on this page to indicate whether you and your spouse/partner have agreed on staying (postponing) the service of the Wage Assignment for spousal/partner support.

My description of our marital standard of living –  WHAT IS THE JUDGE LOOKING FOR HERE in Santa Clara?

Well, this is where you give the court your own description of the standard of living you enjoyed during your marriage/partnership with your spouse/partner that justifies the spousal/partner support request you have made to the court. As far as is practically possible, the judge will be looking to maintain the standard of living actually enjoyed by both of you during the marriage/partnership. That will be particularly true of a marriage/partnership of longer duration – over 10 years.

So you have a wide discretion here to tell the court about anything you claim justifies your spousal/partner support request based upon the standard of living actually enjoyed by both of you during the marriage/partnership. These should be factual descriptions of actual standards of living that can be proved to the court by you if the judge requests such proof.

You should certainly include a description of standards such as the type of apartments and/or houses you lived in, the cars you drove over time, the number, length and location of vacations taken, the existence and details of second homes, the number of times you ate out per week/month, or any other “luxury” items or services, etc. that recurred during the marriage/partnership and would demonstrate to the court an economic standard for the marriage/partnership.

However, you should also include descriptions of any other factors that you claim would tend to justify your spousal/partner support request by virtue of having diminished the educational or professional qualifications of the intended spousal/partner support recipient as a consequence of the marriage/partnership. Examples would be how one of you worked to permit the education or professional advancement of the other during the marriage/partnership; how one of you demonstrably sacrificed, delayed or decreased his or her own educational or professional advancement so that the other could consequently pursue his or her own educational or professional advancement; or how one of you worked, perhaps at a salary below market value, within a business or professional practice that will be awarded to the intended spousal/partner support payer.

WHATS THIS ABOUT A WAGE ASSIGNMENT?

Our help system is informational but is not a substitute for legal advice based on a complete assessment of the facts and circumstances of your case. If you have any questions or doubts about any issue covered in this help item, you should definitely contact our law office before proceeding.

Pursuant to Family Code 5230(a) whenever the court orders payment of any spousal/partner support, “the court shall include in its order an earnings assignment order for support that orders the employer of the obligor to pay to the obligee…the amount ordered by the court for support.” The obligor is the party (either you or your spouse/partner) ordered to pay the spousal/partner support and the obligee is the party receiving the spousal/partner support. Under a wage assignment, the payer’s employer deducts the amount of spousal/partner support ordered from the payer’s wages and the employer pays that amount directly to the recipient of the spousal/partner support in Santa Clara.

So this means that an “earnings assignment order” (which used to be called a wage assignment) is mandatory. If there is any order for spousal/partner support in your case, there will be a wage assignment against the person ordered to pay the spousal/partner support. There is no way to avoid the issuance of the earnings assignment order.

But, and it is a big but, Family Code 5260 provides that the “court may order that service of the assignment order be stayed only if the court makes a finding of good cause or if an alternative arrangement exists for payment…” If this provision is triggered, the earnings assignment order is still made. Remember that there is no way to avoid the wage assignment being ordered. But the court additionally will order that the service of the wage assignment (the official delivery of the document) to the payer’s employer is stayed (postponed). The earnings assignment order is made but it does not become effective because the court allows the provision that requires it to be served to be postponed. If this happens, the wage assignment does not become effective and indeed the spousal/partner support payer’s employer never even becomes aware of it.

What triggers the stay of service of the wage assignment? In other words, what constitutes a finding of good cause or an alternative arrangement for payment of support? Firstly, it is clear that either of those events can trigger the stay. You don’t need a finding of good cause AND an alternative arrangement. You just need one or the other. You can read about what constitutes a finding of good cause at Family Code 5260 of the Knowledge Base. A finding of good cause is not easy to obtain and has multiple factors, all of which are required.

Effectively what we are concerned with is the “alternative arrangement” for payment of spousal/partner support. What this essentially amounts to is a written agreement between the parties concerning the amount and payment of spousal/partner support and agreeing that the written agreement constitutes an alternative arrangement to the service of the wage assignment. You may be beginning to notice a recurring theme in California divorce. The legislature will require that something be done unless the parties have a written agreement to the contrary. In other words, you and your spouse/partner are given an opportunity to handle the matter yourselves through a written agreement but if you cannot do so, then the usually more strident and invasive law will come into force.

What does the stay of service of wage assignment mean, apart from the fact that the wage assignment will not be served physically upon the spousal/partner support payer’s employer? The wage assignment still exists. It remains a valid court order that has not yet become effective by being served. You will not have to go back to court to get the wage assignment made again. If the payer of spousal/partner support defaults on even one single spousal/partner support payment (that means if even one dollar is late by one day) the recipient of spousal/partner support simply files a form at court to terminate the stay and may then serve the wage assignment upon the payer’s employer.

So if you and your spouse/partner have an agreement on spousal/partner support and that agreement includes that there will not be an effective wage assignment order, then answer ‘no’ to this question. Otherwise, answer ‘yes,’ but do bear in mind then that the spousal/partner support payer’s employer will be served with the wage assignment. This may affect the willingness of the spousal/partner support payer to continue to be agreeable on the spousal/partner support issue as a whole.

My Request Regarding Court Costs: 

WHAT SHOULD I KNOW ABOUT APPLYING FOR A WAIVER OF THE COURT FILING FEE?

The first thing you should know is that most applications for waiver of court filing fees are approved. That doesn’t mean yours will be, and judges do differ on their standards from court to court and from time to time. But the statistics are in your favor if you are considering an application for a waiver of the court fee.

Perhaps the second thing to realize is that applying for a waiver of the filing fee can result in a physical appearance at court where a judge or commissioner will ask you about your finances. You’ll have to bring proof of what you allege in terms of your ability to pay the filing fee. It is still unlikely that you will have to appear at court for such a hearing, but such hearings are more common now and becoming more common all the time.

When you apply for a waiver of the filing fee, the court has many options other than just approving or denying your application. Perhaps the option that is increasing more than any other is that your application will be approved temporarily to allow your case to proceed but that you will have to pay the court filing fee in order to get your divorce finalized. This would give you up to 6 months to come up with and pay the filing fee. If you did not come up with it within that 6 months, your divorce would be delayed until you can come up with and pay the court filing fee.

If the court approves your Request to Waive Court Costs, you will have a continuing duty to advise the court at any time during the divorce case if you can afford to pay. In fact, you promise under penalty of perjury to do so. The court doesn’t keep checking. You have a legal duty to come forward voluntarily if you become able to afford to pay the filing fee.

There are three possible grounds for an application for waiver of the filing fee: (1) you are receiving some type of public assistance, such as CalWORKs (TANF) or Food Stamps; (2) your gross monthly income is less than the amount determined by the state as being low income for a household with the same number of people as yours; and (3) while you do not qualify on grounds (1) or (2) you claim that your gross monthly income is not enough to pay for the common necessities of life for you and those in your family you are legally obligated to support AND to pay the court filing fee. This latter type of application is the one that most frequently results in a court hearing.

Click on the help icon on the Requests page of the interview to see the current monthly income amounts that the state considers to be low income for the purposes of an application based upon ground (2) above.

My Request(s) Regarding Restoration of Former Name(s):   WHO CAN REQUEST WHAT FORMER NAME?

Only the Petitioner (the person who started the case) can request a name change for himself or herself on the Petition. However, the Respondent (the other party – the one who did not start the case) can obtain a name change through this case if both the Petitioner and Respondent are cooperative and will sign a written agreement in which the Respondent agrees to the name change.

If the parties will not have a written agreement (for whatever reason) then the Respondent cannot obtain a name change through this uncontested case and would have to bring a separate action to obtain a court-ordered name change.

Note that the name change request is without regard to sex. Therefore, if a husband changed his name as a consequence of the marriage/partnership, he can obtain a name change. If he is the Petitioner, he can request the name change on the Petition. If he is the Respondent, he can obtain a name change through this case with the cooperation of his wife and with the existence of a written agreement in which the husband agrees to the name change.

Neither party can force the other to obtain a name change, either as part of this case or in any other way in Santa Clara.

The requested name cannot be a brand new name. It must be a name that has been used consistently at some time in the past. It can be a birth name or a prior married name. It cannot be, for example, a hyphenated married-maiden name that you have never used before. As always, you can be asked to provide legal proof that the name you request is one that you have used consistently for some reasonable time period in the past.

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