California

What is meant by the term uncontested divorce?

Answer: Generally, the term “uncontesteddivorce” refers to a divorce proceeding in which none of the issues,including the grounds for divorce, child support, title to property, equitabledistribution, or maintenance, is in dispute.

How long does it take to get a divorce in California?

Answer: It takes three to fifteen months from the date ofthe Complaint.

What are the grounds for divorce in California?

Answer: The only grounds for divorce (called “dissolution” in California) are:

Irreconcilable differences, which have caused the irremediable breakdown of the marriage.

OR

Incurable insanity.

Marriages may also be void based on polygamy, incest, mental incapacity, consent to marriage obtained by fraud or force, and other relatively unusual situations.

What is the correct venue (county) for a divorce case?

Answer: An action for divorce may be brought in the county in which either the petitioner or respondent resided for the three months preceding the commencement of the proceeding.

What are the residency requirements for a divorce in California?

Answer: In order for a California court to have jurisdiction over your divorce you must be a California resident for at least six months immediately prior to filing an action for dissolution.
Further,you must reside in the county in which you intend to file for at least threemonths immediately prior to filing. It is not necessary for your spouse toreside in California but it is certainly less complicated if they do.

CALIFORNIA SUPREME COURT RULES THAT FORMER WIFE’S FAILURE TO SECURE A QDRO PRIOR TO THE DEATH OF HER HUSBAND RESULTS IN FORFEITURE OF SURVIVOR BENEFIT

In its decision in the case In Re Marriage of Padgett 172 Cal.App.4th, 830 (2009), the California Supreme Court addresses a situation that occurs with surprising frequency: The pension plan participant (former husband) died before a qualified domestic relations order (QDRO) was entered. The Plaintiff, who was apparently unaware that she was required to obtain a QDRO, is faced with the loss of pension benefits that indisputably constituted community property. However, she faces an uphill battle: her former husband (now deceased) had remarried, and the second wife (seeking to retain her full interest in the survivor benefits) adamantly opposes her claim.

In the Padgett case, the former wife (Ms. Padgett) argued that notwithstanding the plan participant/former husband’s death, the Court had the authority to enter nunc pro tunc (“then as now”) a QDRO. Ms. Padgett asserted that there existed ample grounds for entry of a QDRO because in the parties’ divorce decree, the trial court specifically “reserve[d] jurisdiction” over the former husband’s pension plan.

However, after the parties’ divorce, Mr. Padgett remarried. His widow (Donna), as representative of his estate, opposed Ms. Padgett’s request, arguing that ERISA’s anti-alienation provision (29 U.S.C. § 1001) prevented the Court from ordering the pension plan to pay part of the survivor’s benefit to Ms. Padgett in light of her failure to take steps to inform the pension plan of her community property claim prior to Mr. Padgett’s death.

Clearly, in Padgett, the Court expresses its awareness of how manifestly unfair it is for Ms. Padgett to be deprived of her interest in the pension. In its decision, the Court engages in a painstaking analysis of legal precedent, as if to emphasize the extent to which the Court’s hands were tied. The Court notes that the dissolution decree, though containing a reservation of jurisdiction, could not - even under the most generous interpretation - be viewed as creating any legally enforceable interest on behalf of Ms. Padgett.

The Court carefully distinguishes the facts before it from other cases, where orders were entered after the plan participant’s death. In those cases, there were separation agreements and/or divorce decrees which specifically addressed the division of pension interests. However, Ms. Padgett had neither a court order nor any agreement that the Court could interpret as having conferred upon her an interest in her former husband’s pension. The Court summarizes its holding as follows:

Entry of a nunc pro tune order following the retirement or preretirement death of the plan participant to facilitate qualification of a DRO as a QDRO where the DRO was obtained before the benefit-triggering event is proper in circumstances where the record indicates that the parties or the court intended the state court DRO to create an interest in surviving spouse benefits in the former spouse. However, where the DRO obtained before the benefit-triggering event does not create the right that the former spouse seeks to enforce as a QDRO against the plan, a nunc pro tunc order entered after the benefit-triggering event cannot create the right. Such order goes beyond the confines of the nunc pro tune power of the court.

Id. at 854.

The tone of the Padgett decision is virtually apologetic. Ms. Padgett learned the difficult lesson that where ERISA is concerned, even the most sympathetic of courts can provide little solace to non-participant former spouses who neglect to protect their rights. The lesson for divorce litigants and their attorneys is clear: a QDRO order must be secured as quickly as possible.

May a Spouse be Held Liable for Debts Incurred by His or Her Spouse after the Parties Have Executed a Legal Separation Agreement?

Short Answer: No, provided that the parties live separate and apart from each other and their Agreement does not mandate support.

Explanation: Section 4302 of the California Family Code provides: “A person is not liable for support of the person’s spouse when the person is living separate from the spouse by agreement unless support is stipulated in the agreement.” Thus, there is no dispute that a “spouse is also personally liable for a debt incurred for `common necessaries of life’ of his or her spouse while the spouses are living separately . . . except that if the debt is incurred while they are separated under an agreement, the other spouse is personally liable only if liability for support is stipulated to in the agreement.” (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2009) ¶ 8:753, pp. 8-187.)

Are Agreements Regarding Child Support "Final" and/or Binding Upon the Court?

Short Answer: No

Explanation: “parties may not by agreement divest the court of jurisdiction to order child support.” (Practice Under the California Family Code (Cont.Ed.Bar 2009) § 8.3, p. 306.) “[P]ublic policy also prohibits a parent from waiving or limiting, by agreement, a child’s right to support.” (Kristine M. v. David P. (2006) 135 Cal.App.4th 783, 789 [37 Cal.Rptr.3d 748].). Accordingly, regardless of the parties' intentions in a Marital Agreement, the courts in California will continue to maintain jurisdiction regarding child support.

Parents have no right, in California, to waive or limit by agreement a child’s right to support. (Fam. Code,[fn1] § 7632; K.M. v. E.G. 2005) 37 Cal.4th 130, 144 [33 Cal.Rptr.3d 61, 117 P.3d 673]; In re Marriage of Buzzanca (1998) 61 Cal.App.4th 1410, 1426 [72 Cal.Rptr.2d 280].)

Is an Oral (Unwritten) Marital Separation Agreement Enforceable Under California Law?

Short Answer: No, unless it is stipulated to on the record in open court.

Explanation:Family Code section 2550, the statute governing an agreement entered into during a dissolution proceeding to divide the community assets, provides as follows: “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 or for legal separation of the parties, the court shall, either in its judgment of dissolution of the marriage, 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.”

In the matter In Re Marriage of Dellaria, 172 Cal.App.4th 196 (2009) the appellate court reversed a trial court's decision that awarded property unequally based on the parties' alleged oral agreement. The Court ruled: If the court divides the community property, it must do so equally - If the parties themselves want to agree upon another disposition, they must do so either in writing or in open court. Neither requirement was met here. For this reason, we hold that the trial court erred in enforcing the parties’ oral property settlement agreement.

May Spouses Agree to Treat Property that Would Otherwise be Considered Separate as their Community Property?

Answer: Yes.

Explanation: In fact, agreement of the parties is the sole means by which otherwise separate property (e.g. premarital assets) can be "transmuted" from separate to community property. Because an agreement is required to transmute the character of property, the use of separate property during marriage - without more - does not convert it into community property. (Patterson v. Patterson (1966) 242 Cal.App.2d 333, 340 [51 Cal.Rptr. 339], disapproved on other grounds in See v. See, supra, 64 Cal.2d at p. 784.) Moreover, “`mere commingling of separate with community funds in a bank account does not destroy the character of the former if the amount thereof can be ascertained.’” (In re Marriage of Mix, supra, 14 Cal.3d at p. 611.)

May a Spouse Challenge an Agreement that is Unfair?

Short Answer: Yes.

Explanation: Family Code section 721, subdivision (b) provides in part that “in transactions between themselves, a husband and wife are subject to the general rules governing fiduciary relationships which control the actions of persons occupying confidential relations with each other. This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other.” In view of this fiduciary relationship, “[w]hen an interspousal transaction advantages one spouse, `[t]he law, from considerations of public policy, presumes such transactions to have been induced by undue influence.’” (In re Marriage of Haines (1995) 33 Cal.App.4th 277, 293 [39 Cal.Rptr.2d 673].) “Generally, a fiduciary obtains an advantage if his position is improved, he obtains a favorable opportunity, or he otherwise gains, benefits, or profits.” (In re Marriage of Lange (2002) 102 Cal.App.4th 360, 364 [125 Cal.Rptr.2d 379].) The spouse advantaged by the transaction has the burden of dispelling the presumption of undue influence.