No Fault and Fault Divorce Laws

No Fault and Fault Divorce Laws

 By Allysyn Overton, Esq.

California is a no-fault divorce state. This means that it does not matter whose fault it is that you are seeking a divorce. Well, it matters to you and your family on an emotional and social level, I’m sure, but it doesn’t matter to the divorce court. The divorce court will still follow laws of equitable division, standard support calculations, and best-interest-of-the-child standards in making orders in your divorce case. There are exceptions, of course. For example, I represented a woman whose husband had been having an affair for years, in her divorce. Her husband spent tens of thousands of dollars on his extra-marital affair, while my client and her husband were still married. We were able to get the divorce court order that he reimburse the community piggy bank every last cent he spent on his mistress during the marriage. Then, the divorce court divided the total of that. This meant that my client received a much larger equalization payment from the property order, because her husband breached his fiduciary duties to his wife, by spending their community money on non-community ventures. There are specific divorce laws against this. These laws require spouses to hold the same fiduciary duties to one another as they would a business partner. I’ve also had many divorce cases in which a person’s domestic violence perpetrations or substance abuse problems meant that that person started with supervised visitation of children. So, behaviors during the marriage can affect some of the orders the divorce court makes, but it will never affect whether the court will order a divorce or not. So long as there are differences that one person states cannot be fixed, the divorce court will likely grant the divorce.

 A caveat to this is if the wife is pregnant. Because a child born to a marriage is deemed to legally be the child of the married partners, a court may not want to grant a divorce until after the child is born. It is too dangerous to do a paternity test while the child is still in utero, so waiting until after birth is best. At that time, if either party believes the child is not the husband’s, a paternity test can be done to confirm or deny paternity, and then the divorce court can make its orders about the divorce and any subsequent divorce issues, like child custody and visitation and child support.

 All states recognize no-fault divorces, but some states require that the spouses live separately for a designate period of time, before either of them can file for divorce. In California, there is no requirement that the parties live separately before they file for divorce, but a court will wait at least six months and one day from the day the divorce petition was filed to sign the divorce decree. This cooling-off period was designed by the legislature with the idea that the parties might reconcile instead of getting divorced, during this waiting period.

 Fault Divorce

 Fault divorces are rare. Most states do not even recognize them. In the states that do recognize them, one of the spouses requests that a divorce be granted based on some fault of the other spouse.  The most common required grounds for granting a fault divorce are

•  Infidelity

• Abandonment of the other partner

• Imprisonment

• Incurable sexual disfunction

• Cruelty or domestic violence

 No state requires the spouses seeking a fault divorce to live apart for a specific period of time, before filing for divorce, like in a no-fault divorce. If the party is able to prove the other was at fault, he/she/they can often gain a larger equalization payment or support payment from the faulting party in their divorce decree.  When both spouses in a fault divorce proceeding, prove the other is at fault, the divorce court may decide which one is least at fault and award a better financial outcome to the lesser-at-fault party and a divorce.

 Divorce courts do not want to force anyone to stay in a marriage they don’t want to be in, and so, will almost always grant a divorce to the petitioner when requested.  

 Residency Necessary Before Filing for Divorce

 Each state has its own divorce and property laws, so it is super important to determine where you are able to file for divorce. In California, you must be a resident for at least six months before filing for divorce, and a resident of your county for at least three months before filing for divorce. However, Washington, South Dakota, and Alaska do not require their residents to have lived there for any length of time before they can file for divorce.  To file in one of those states, you merely need to be a resident of that state at the time you are filing for divorce.

 Because divorce proceedings can take up to a couple years, it is best to file for divorce in your county of residence. That way, you can more easily navigate the courthouse and your divorce filings. However, sometimes, it is important to compare the different states’ laws to see which would be better for your circumstances, and file for divorce in that state. For example, California uses a “best interest of the child” standard in making child custody and visitation orders. It may find that a parent should only have weekend visitation for a while. However, in another state, it is standard that each parent has at least two consecutive weeks in the summer time. So, it may be better to file for divorce in that other state so that you can get more visitation. Keep in mind though, that in most situations, the divorce court that is deciding the divorce will also decide other matters related to it, such as property division and custody matters. That includes any changes in divorce orders. So, if you live in California, but file in Utah, hoping for a better outcome there in your child custody matters, you have set yourself up for a lot of inconvenience until your child reaches the age of 18.   

 Full Faith and Credit Among States

 Courts honor the divorce orders of courts in other states. So, if you have a divorce judgment in California, and then move to Indiana, Indiana should honor whatever orders, whether about the divorce itself or issues subsequent to divorce, you obtained in California.

 Personal Jurisdiction

Personal Jurisdiction refers to the court having any power over the person about which it is making orders. A court gains personal jurisdiction over someone by that person being in the state when he/she/they is served with court papers, or if that person appears at a court hearing, signs off on having received court papers, or abides by the court’s orders. A lack of personal jurisdiction means that although the divorce decree is valid, other related decisions, such as child custody, support, and property division, may be invalid. A divorce court cannot make orders about a person it does not have personal jurisdiction over.

 Consulting a divorce attorney about these matters, or if you are served with divorce papers is always best, especially if you receive them from a foreign state. A divorce lawyer will be best suited to explain to you any jurisdictional issues that are relevant to your divorce, such as where the parties lived, where the children live, and what country or state is involved in your divorce.

 To set up a free consultation with the author, visit https://calendly.com/legallyoverton/20min

Or email us at legallyoverton@gmail.com

Child Custody and Visitation in California

Child Custody and Visitation in California

By Allysyn Overton, Esq.

Understanding these different terms is important when navigating your court proceedings. Below are the definitions of each and how they are typically handled in court. There are two types of custody, which are different than visitation. People often misunderstand child custody and visitaiton. They may say “custody” when they really mean “visitation.” So, it is important to understand the legal terms of child custody and visitation before you start a child custody and visitaiton court case, so that you are asking for the correct child custody and visitaiton orders in your court documents and at your child custody court hearing.

Legal Custody

Legal custody refers to who has the decision-making power over the child(ren). What school is chosen, what pediatrician, glasses or contacts, etc. The parents can have joint legal child custody, or the court can award one parent sole legal child custody. Typically, courts want to see both parents involved in the decision-making for children, but exceptions, so will issue joint legal child custody orders. However, courts will consider multiple factors in deciding child custody, like a history of domestic violence, substance abuse, or other behaviors that render one of the parents incapable of engaging in joint legal child custody are common.

Physical Custody

Physical Custody refers to with whom the child resides. Like legal custody, parents can share joint physical custody, or the court can order that only one parent maintains sole physical custody. Typically, parties who share an even or close-to-even timeshare of the child(ren) will share in joint physical custody. When one parent has the majority of the timeshare, courts typically grant that parent sole physical custody. Physical custody does not have a whole lot of power like legal custody does, but can be useful in choosing a school, as the child’s residence will determine what school district is applicable. Physical custody also is important if one parent wants to move further away from the other. If the parent with sole physical custody wants to move, the court will usually side more with a parent who has sole physical custody when deciding whether the move-away is appropriate or not.

Visitation

Visitation refers to the timeshare of the child(ren) and parents, or how often the child will visit each parent and when. There are a number of common visitation scenarios:

2-2-3 visitation: The child visits parent 1 for two days, then switches to visit parent 2 for 2 days, then goes back to visit parent 1 for 3 days. This ends up creating an alternating weekend scenario. This visitation schedule is best for children under ten, as children of that age should not go too long without visiting the other parent. This visitation schedule looks like this:

2-2-3 visitation schedule

Monday Tuesday Wednesday Thusday Friday Saturday Sunday

Parent 1 Parent 1 Parent 2 Parent 2 Parent 1 Parent 1 Parent 1

Parent 2 Parent 2 Parent 1 Parent 1 Parent 2 Parent 2 Parent 2

Parent 1 Parent 1 Parent 2 Parent 2 Parent 1 Parent 1 Parent 1

Parent 2 Parent 2 Parent 1 Parent 1 Parent 2 Parent 2 Parent 2

2-2-5 visitation: with a 2-2-5 visitation schedule, the child visits with parent 1 for 2 days, parent 2 for 2 days, then parent 1 for 5 days. This visitation schedule is best for children over ten, as they do okay not having visitation with the other parent for several days at a time. This visitation schedule allows each parent to have full weekends, but also sometimes split their weekends with the other parent. This visitation schedule can sometimes make planning ahead hard, as the parents have to sit down with a calendar and mark out their visitation timeshare. It looks like this:

2-2-5 Visitation Schedule

Monday Tuesday Wednesday Thursday Friday Saturday Sunday

Parent 1 Parent 1 Parent 2 Parent 2 Parent 1 Parent 1 Parent 1

Parent 1 Parent 1 Parent 2 Parent 2 Parent 1 Parent 1 Parent 2

Parent 2 Parent 2 Parent 2 Parent 2 Parent 1 Parent 1 Parent 2

Parent 2 Parent 1 Parent 1 Parent 1 Parent 1 Parent 1 Parent 2

Week on/Week off visitation: A week on/week off visitation schedule is great for teenagers, as teens tend to do just fine going a full week without seeing the other parent, and do better with fewer transitions. With all of the activities keeping teens busy these days, many parents of teens, like this visitation schedule. Week on/week off visitation looks like this:

Week on/Week off Visitation Schedule

Monday Tuesday Wednesday Thursday Friday Saturday Sunday

Parent 1 Parent 1 Parent 1n Parent 1 Parent 1 Parent 1 Parent 1

Parent 2 Parent 2 Parent 2 Parent 2 Parent 2 Parent 2 Parent 2

Parent 1 Parent 1 Parent 1 Parent 1 Parent 1 Parent 1 Parent 1

Parent 2 Parent 2 Parent 2 Parent 2 Parent 2 Parent 2 Parent 2

The 2-2-3, 2-2-5, and week on/week off visitation schedules are all used when the parties are ordered to have even timeshares. Absent a finding of domestic violence, substance abuse, or abandonment by one of the parties, courts will be inclined to order even visitation timeshare schedules. But what about situations where uneven visitation timeshare is appropriate? Just like with even visitation, there are a number of uneven visitation schedules courts can order.

Supervised Visitation

When a finding of any concerns about one of the parent’s parenting abilities, such as in cases of domestic violence, substance abuse, or not being in the child’s life much, the court may want to see that parent have a few supervised visitation sessions first. This ensures there is a responsible adult present for the visitation just in case the parent becomes inappropriate or abusive with the child(ren), the parent appears to be under the influence of substances, or the child experiences anything untoward during the visitation. That other adult can intervene if necessary and terminate the visitation whilst ensuring child safety. Then, that adult can report back to the court about how the visitations went. From there, the court can make further visitation orders. If the visitation supervisor reports back that the visitations all went well, the court will be inclined to order unsupervised visitation for that parent. However, if the visitation supervisor reports any concerns to the court, the court can terminate the visitation, order visitation or reunification therapy for the parent and child, or that the parent’s visitation maintain being supervised. Typically, the schedule of supervised visits is limited to the availability of the supervisor. Sometimes supervised visitation is ordered to be done by a professional visitation supervisor, and other times, the parties agree on a friend or family member to supervise the visitation. Supervised visitation rarely includes overnights, unless the overnights can take place at the visitation supervisor’s residence.

Every Weekend Visitation

This type of visitation is common as a next step after a parent has graduated from supervised visitation, or in cases where one parent cannot for whatever reason, have visitation during the week—perhaps their rigorous work schedule doesn’t allow it, or perhaps, the parties live too far apart for the child to make it to school in the morning. This visitation is usually not for a very extended period of time, as the other parent is not getting any weekend time at all.

Alternating Weekend Visitation

This type of visitation is also common as a step up from supervised visitation, or is ordered when one parent cannot have visitation during the week. This visitation ensures that both parents get some weekend visitation timeshare with the child(ren).

Visitation Exchanges

Visitation Exchanges is an important concept in any custody/visitation matter. Visitation exchanges refers to how the child(ren) is/are exchanges between the parents. In supervised settings, the exchanges takes place at the supervision center. If the visitation is being supervised privately, the exchange may take place at the supervised parent’s home. If the parties’ relationship is still relatively contentious, it might be best to have visitation exchanges take place in a public place. I worked on one case where the father was always twenty, even thirty minutes late to the visitation exchanges, but denied being late to the court. As a way to track whether he was on-time or late, the court ordered the visitation exchanges to take place at a starbucks between the homes, and each party had to buy something from inside and get a receipt. Then, the court reviewed all the receipts and noted that the father indeed had been very late to most of the visitation exchanges. Thus, the court ordered that if he was more than fifteen minutes late, he forfeited his visit.

School visitation exchanges is also a great and easy way for the children to travel back and forth. School exchanges have parent 1 drop off the child(ren) at school, and the parent 2 picks up that day from school. Keep in mind that this forces everyone to consider what the child(ren) should pack before school on visitation exchange days, as whatever the child(ren) need(s) for the other parent’s home will need to travel with him/her/them on exchange days. Parents often enjoy school visitation exchanges as they are a bit easier to fit into work schedules, and they mean not having to interact with the other parent as much, which is very helpful in contentious cases.

Holiday Visitation Schedule

Planning out a holiday visitation schedule is very important. Without one, you are stuck with whatever days fall on your regularly schedule visitation, no matter what holiday it happens to be. Common

holidays to consider are any days your child(ren) has off from school, important religious holidays, mother’s day, father’s day, and birthdays. California has a great court form that makes it easy for you to plan out a holiday schedule and request it from the court. This is form FL-341(c), and can be found here: https://www.courts.ca.gov/documents/fl341c.pdf

Visitation Mediation

In California, parties are required to attend mediation with the court’s own mediators to see if they can reach an agreement about visitation. The court will usually (absent any emergencies) not make any visitation orders until this is done. Remember, that you and the other parent know your lives and children better than a stranger in a black robe. In my experience, parties that reach visitation agreements end up having healthier and happier coparenting arrangements with the other, and tend to have an easier time in court. Of course, this is not always possible or even appropriate. For example, in situations of domestic violence. However, even then, the court will order you to attend mediation. In domestic violence cases, the mediator will meet with the parties separately. You should be willing to settle, but do not have to settle just for the sake of settling. The visitation terms should be something you can live with. They might not be exactly what you want, but a little compromise can go a long way. Settling also means less time in court and often fewer attorney’s fees.

To set up a free consultation with the author, visit https://calendly.com/legallyoverton/20min

Or email us at legallyoverton@gmail.com

Community Property versus Separate Property in Divorce

Property Division in Divorce: Community versus Separate Property

By Allysyn Overton, Esq.

Dividing property and debts during divorce proceedings can often be a confusing concept for parties. I’m going to try to demystify the concepts for you, here.

Community Property vs. Separate Property

Separate Property

Separate Property refers to all of the assets and debts a person entered the marriage already possessing. During the marriage, things like inheritance, lottery winnings, tort court awards, and any gains or liabilities born of other separate property are all considered separate property, and should be awarded to the owner during divorce proceedings. For example, if Wife owns an apartment she bought before the wedding, and during the marriage, she is gaining rental income from that property, her rental income would likely be considered her own separate property. This should not be confused with employment gained before the marriage. If you have the same job after the day of your wedding as you did before the wedding, your earned income after the wedding would still be considered community property.

Community Property

Community Property refers to the assets and debts that the parties gained during the marriage, except for the situations described in the preceding paragraph, like inheritance, court awards, lottery winnings, and income gained from property acquired before the marriage, such as rental income from a house purchased before the wedding.

I like to think about it this way. On the morning of your wedding, you each had a piggy bank over your heads. Then, when you are pronounced married at your wedding, POOF, another piggy bank pops up between your heads. For the next several years, everything that comes in goes into the community piggy bank, no matter where its kept, with the exception of things like inheritance, lottery winnings, court awards, etc. Those exceptions go into your separate piggy bank. If you get divorced, the community piggy bank is smashed to the ground, and the court divides its contents equally between you. You get to walk away with your separate piggy bank intact.

Retirement Benefits

How retirement benefits are handled can be confusing for people, but the same concept applies. Let’s use a 401k as an example. Husband has a 401k with the job he started before he met his partner. After their wedding, his 401k keeps gaining interest, and he and his employer keep contributing to it. So, some of his 401k will be in his separate piggy bank and some goes in the community piggy bank to be divided between the parties. Any and all contributions made during the marriage, and interest accrued from those contributions, no matter when that interest was acquired, all remains in his separate property piggy bank. All contributions made after the wedding and interest accrued from those contributions all go in the community piggy bank and will be divided accordingly as of the date of separation.

 Date of Separation

The date of separation is an important date to consider, because on this date all community property contributions end. That community piggy bank’s slot is plugged on this date, and most everything acquired upon this date goes to separate property piggy banks. Of course, any interest or other income born from community property will still be considered community property, but every other acquisition as of the date of separation is separate property. So how does the court determine the date of separation. The day that one or both of the parties decided to terminate the relationship and didn’t do anything to go back on that decision is usually considered to be the date of separation. I had a case in which the husband and wife had been romantically broken up for months, but were still living together. This was because rent was so expensive in the city at the time, that neither of them were ready to find separate homes. However, a few months prior to my coming into the case, the husband told his wife it was over, and he left the home and stayed in a hotel for several nights. When he returned to the home, he took up a bedroom in the parties’ office, rather than in the master bedroom, which became the wife’s room. This act of him leaving the home, and not returning to the marital bed, was enough to decide that the day he left and went to a hotel was the date of separation. Had he returned to the master bedroom upon his return, the wife would have had a good argument for a later date being the date of separation.

To set up a free consultation with the author, visit https://calendly.com/legallyoverton/20min

Or email us at legallyoverton@gmail.com

How Many Parents can a Child Legally Have?

California’s Three Parent Law

by Allysyn Overton, Esq.

In most states, a child can legally only have two parents. This is important because with being deemed a parent comes many rights and responsibilities to the child, such as visitation, custody, and child support. Usually, it is the biological mother and biological father who assumes these rights and duties. Sometimes, it is adoptive parents and other times, other relatives, like aunts, uncles, and even older siblings step in and take on these roles. However, with the growing population of the LGBTQ community and its leaps and bounds of progress in rights, this topic has become frustrated. California has a large LGBTQ community and marriage for these members has been legal for several years. Straight people are not the only ones who have children. Advances in science mean that even same-sex couples can now have children. Advances in the law mean these couples can even adopt in some states. So, what happens if there is a lesbian couple who has a child on accident?

Well, in California a child can actually be assigned three parents under the law, in very specific circumstances. Several years ago, a woman married her wife, and got pregnant by her boyfriend. By law, the mother, her wife, and her boyfriend all had rights and duties to the child. The law provides that any child born during a marriage, is the child of the married parties. The law also states that any child who is conceived by two unmarried parties biologically, is the child of those two parties. This pregnant woman then went to prison for a nonviolent crime. While she was incarcerated, both her wife and her boyfriend sought custody of the child. This led to the three parent law, which is reserved for situations like this, where a woman is married to a same-sex partner, but conceives a child with another partner, with no donor contract drawn up first. Now, the woman, her wife, and her boyfriend all share custody, visitation and financial obligations of the child.

The California Senate passed Bill Number 274, which provides protection for children and families by recognizing two or even more adults in a child’s life can have rights and duties to the child. The bill is often referred to as “Third Parent Law,” but this is actually misleading, because the bill provides no limits on the number of parents a child can have. The case this bill was born out of included two married women and the boyfriend of the mother, but other scenarios could come into play, that assign the child four or more parents, though those circumstances are rare. For example, a lesbian couple and a gay-male couple could all agree to parent a child. They would draw up a contract, detailing how it would work and the rights and duties of each parent. Then, the gay-male couple could provide the sperm donation to fertilize an egg from the lesbian couple. Once the child is born, all four parents share custody, visitation, and financial support of the child. What a lucky kid!

If you are planning to do anything like this, you should absolutely have a contract drawn up and talk to a lawyer first.

To set up a free consultation with the author, visit https://calendly.com/legallyoverton/20min

Or email us at legallyoverton@gmail.com

Divorce Residence FAQs

Divorce Residency FAQ’s

Do I have to live somewhere to obtain a divorce there?

What is the difference between residence and domicile?

Can a spouse move to another state or country to file for divorce there?

What state has jurisdiction over child custody?

What state has jurisdiction over retirement plans and military pensions?

If my spouse moves out of state, can I still file for divorce in our marital state?

What if I can’t find my spouse or don’t know his residency?

Does divorce residency affect child custody?

Do I have to live in a state to obtain a divorce there?

Yes.  All states, except Alaska, South Dakota, and Washington, require parties filing for divorce, to be a resident of that state for a period of time before you may file. The necessary length of residence varies, but usually, it is at least six months.  Courts require those filing papers to swear under penalty of perjury that they have in fact been residents of that state for the required length of time.

Whichever court issues the divorce decree also has issues over the supplement issues, like property division, child custody and visitation, child and spousal support, etc., and any amendments to orders of those issues. This makes your filing in your state of residence even more important so you can avoid the stress and expense of traveling to a foreign state for every court hearing or filing. So, if you think your spouse might file in another state, try and file first, if you can, in your own state, to avoid having your entire case being handled in a foreign state.

The chart below shows which states have residence requirements and how long those requirements are. So, as long as you or the other party meet those residence durations, you should be able to file your divorce in that state.  

Alabama 6 Months or 180 Days

Alaska No Requirement

Arizona 90 Days

Arkansas 60 Days

California 6 Months or 180 Days

Colorado 90 Days

Connecticut 12 Months or 1 Year

Delaware 6 Months or 180 Days

District of Columbia 6 Months or 180 Days

Florida 6 Months

Georgia 6 Months

Hawaii 6 Months

Idaho 6 Weeks

Illinois 90 Days

Indiana 6 Months

Iowa 12 Months

Kansas 60 Days

Kentucky 6 Months

Louisiana 6 Months

Maine 6 Months

Maryland 12 Months

Massachusetts 12 Months

Michigan 6 Months

Minnesota 6 Months

Mississippi 6 Months

Missouri 90 Days

Montana 90 Days

Nebraska 12 Months

Nevada 6 Weeks

New Hampshire 12 Months

New Jersey 12 Months

New Mexico 6 Months

New York 12 Months

North Carolina 6 Months

North Dakota 6 Months

Ohio 6 Months

Oklahoma 6 Months

Oregon 6 Months

Pennsylvania 6 Months

Rhode Island 12 Months

South Carolina 12 Months

South Dakota No Requirement

Tennessee 6 Months

Texas 6 Months

Utah 90 Days

Vermont 6 Months

Virginia 6 Months

Washington No Requirement

West Virginia 12 Months

Wisconsin 6 months or

Wyoming 60 Days

 What is the difference between residence and domicile?

For residence and domicile determination, the party’s presence in the state rules. Some states call this “residence” and some call this “domicile.” Finding out which term your state uses is important in determining what is necessary. If your state uses “domicile,” then, the party must have a fixed, permanent, brick and mortar home in that state, and have the intention of staying. However, if your state uses the term “residence,” the party filing must simply be present in the state for the required period of time mandated by the statute in the chart above. Essentially, this means a person can have several residence but only one true domicile. For instance, Dina is a professional golfer and travels a lot for work.  She stays in Arizona and Florida a lot, where she can be found golfing at any short duration of time.  However, Dina has a fixed and permanent house in Indiana, where her family lives, her bills are sent, and most of her belongings are fixed.  In this example, Dina has domicile in Indiana, but has residence in Florida and Arizona. 

Domicile is a more difficult standard, because the party filing must establish that the his/her/their single, true, brick and mortar home is located in that state.   Courts tend to consider the following factors to determine someone’s domicile:

·        Where the rest of the person’s immediate family members live

·        Where the person is registered to vote

·        Where the person’s central place of employment is

·        Where the person’s car is registered

·        Which state is on his/her/their driver’s license

·        Where the person’s children go to school

·        Where the person banks

·        If there is more than one residence, courts consider the order in which they were acquired, how they were paid for, and how they are used (permanent verses vacation homes).

Can a person move to another state or country to file for divorce there?

Yes. As long as the filing person can prove residence or domicile, depending on what that state’s statute requires, in that new state or country. Then, all of the other states should recognize this divorce. The non-resident spouse can consent to the jurisdiction in this other state by appearing at court dates, signing affidavits of service, acknowledging receipt of filed legal documents, filing legal documents, and generally following that court’s orders (such as paying child support).  This is fairly easy and straightforward in an uncontested divorce.

Subsequent issues to divorce, such as child custody and visitation, support, and property division may likely be heard in the same state as the divorce, however, sometimes this can be tricky. For example, if the children reside in a different state for the majority of the time, a court may determine that that state is in a better position to make orders about the best interest of the children—a standard most states follow these days.

Be sure to consult a divorce attorney if you receive documents from foreign state or country.  The laws about which state or foreign court governs can be tricky.  There are many factors to consider, such as which country is involved, where the parties lived and for how long, and whether there are children involved.  A divorce attorney can help you sort through these tricky divorce residency issues. 

What state has jurisdiction over child custody?

The home state of the child has custody jurisdiction, unless one state asserts continuing jurisdiction.  The state that ordered the original custody decree can assert jurisdiction in any proceedings regarding modifying that order, so long as one of the parties that has visitation still has the necessary residence or domicile in that state. Each state is different, however. For example, Alaska follows the residence of the child as having the jurisdiction over custody, visitation, and child support issues. So, it is important you consult an attorney licensed in that state, to best advise you on what to do.   

What state has jurisdiction over retirement plans and military pensions?

The state the original member (rather than the spouse of the member) has residence or domicile, whichever is required. Typically, this means that the residence or domicile must be proven. If the company that issues the plan itself has enough contacts with another state, courts can rule that that other state has jurisdiction.

A state can only establish jurisdiction over a military pension plan based on the military member’s domicile, residence, or consent, and NOT based on the member’s military assignment. For example, Elly was born, grew up, and lived in California. She joined the military and was sent to Florida for basic training. While living in Florida, she decides to file for divorce. Indiana, rather than Florida, is the likely state to have jurisdiction over her military pension. All states differ on their treatment of military pensions, so the state you choose can be critical.  So, be sure to research your options and aim for the state that will best serve your needs. A divorce attorney can help you do this, and most of them give free consultations.

If my spouse moves out of state, can I still file for divorce in our marital state?

Yes.  The current residence or domicile of either party is what rules. So,  as long as you fulfill the divorce residency requirements, you may file in that state.  Some spouses choose to have their spouses sign a notice of acknowledgement of receipt or similar divorce documents before they move to make it easier on themselves. If your spouse moved to a different country, try and get him/her/them to sign this notice and acknowledgement of receipt, their response to the divorce, and any other pleadings he/she/they will need to sign as part of the divorce proceedings. This will make service issues much easier on you. out of the country. However, if you are unable to get your spouse to sign these, and you can prove he/she/they knew about them and decided to move and ignore the proceedings, anyway, you may be able to get a default judgment against them, and the court will likely rule in your favor on all issues, as long as your requests are fair and reasonable.

What if I can’t find my spouse or don’t know my spouse’s residency?

File a missing spouse divorce. You don’t have to let this issue stop you from getting divorced. If you can show the court your diligent efforts to locate the other spouse, the court will likely grant your missing person divorce. The court may also give you permission to serve your spouse by publication or posting (if you can prove you cannot afford publishing costs). To do this, you call the legal listings department of the newspaper of the city you believe your spouse to be residing in, and that newspaper will publish the notice documents for a required period of time, (often four weeks). The specific steps in doing this are to first file your petition for divorce, then file a request for service of publication, showing the court your diligent but failed efforts to locate your spouse, get your order granting your request for service of publication, run the ad, and make sure the newspaper filed a proof of publication with the court.  Like most things, the rules and laws about this vary state to state, so be sure to consult a divorce attorney before you start.

Does divorce residency affect child custody?

Yes, but it also depends. Most courts apply the best interest of the child standard. So, courts might consider the child’s present lifestyle, impact of change on the child, impact of separation from one of the parents and/or from the child’s home state, ability of the parents to encourage the relationship between the child and the other parent, and if old enough, the child’s preference. The residence of the parents will impact these things, so the court is likely to take that into consideration. Most courts will not allow a parent to move away with a child, unless that parent has sole physical custody, a domestic violence restraining order against the other, and/or unless that parent can prove the move to be in the child’s best interest. When I draft arguments about move-away requests, I compare schools of the new home with the current school, culture, costs of living, proximity to other relatives especially siblings, and the moving parent’s effectiveness at encouraging contact between the child and other parent.

For example, Kranjis MacBasketball is a happy eight-year old. Kranjis has lived with his parents in California his whole life. Now, his parents are getting divorced and one of his moms wants to move to Nevada. Kranjis has a great relationship with his California mom, has lots of friends, is on many sports teams and clubs at school, is very close to his Lola who lives in California, and really doesn’t want to move. His Nevada mom has not always been the best at coparenting with his California mom. She often is late dropping him off for visitation, and sometimes “forgets” to drop him off at all, which has really cut into his California mom’s timeshare with Kranjis. Kranjis’s Nevada mom wants to open a casino in Nevada, where the cost of living is much lower, and where she has lots of relatives. The schools there have much higher ratings, and the high school has won the state basketball championship every year for five years straight. Kranjis is so good at basketball and loves it so much, it is literally in his name. Both parents have a great claim and great arguments in this move-away action, and I believe the Nevada mom is going to have a tough time getting the court to award the move-away. The moms go to court and the court rules that Kranjis may stay with his California mom, but will spend six weeks in the summer, three consecutive weeks at a time, odd years Christmas break, every fall break, and every Spring Break in Nevada. Kranjis is so happy he doesn’t have to move, and the family goes on, following the court’s orders. When Kranjis visits Nevada, he absolutely falls in love with it, and the town’s basketball community. He talks to his moms about this, and decides he wants to go to high school in Nevada. His Nevada mom petitions the California courts, using this new information. The court orders Kranjis to move to Nevada, but spend summers, all school breaks and even years for Christmas Break in California. The family follows these orders, and Kranjis ends up being a star forward on the basketball team at his high school, and wins a scholarship to play ball for Indiana University. He grows up to be a happy, healthy man with a rich cultural history, thanks to his two moms.  

In cases in which the parties live a great distance apart, judges usually set visitation schedules that tke into account travel time, inconvenience, school schedules, and exra-curricular activities. The courts often give the noncustodial parent chunks of visitation over school vacations, rather than small weekend visits. Typically, the courts order the parents split the costs of traveling for these visitations, unless one parent can show that this would be a great hardship.

Courts are not allowed to restrict an adult’s desires to travel or move to another state, as the US constitution holds this as a right. However, the court may restrict the minor’s movements in a custody matter. So be sure to check with your friendly neighborhood divorce attorney, if you are considering moving and you have a child with another living parent.

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HOW TO GET COURT ORDERS IN FAMILY COURT

Making Request in Family Court and Temporary Court Orders

When a married couple, or unmarried couple with children, decides to separate, the couple has many issues that must be decided.  Family court decisions often take months or sometimes even years. Some issues are heard on an emergency basis, such as domestic violence, or situations where the child(ren) could be at risk of harm. Property issues are usually the ones that are decided last, whereas, domestic violence, child custody and visitation, and child and spousal support are usually handled as soon as the court can hear them. Most of the time these orders are temporary orders until the final divorce judgment. At the time of issuing that, the court can change those earlier-decided, temporary orders, or keep them the same and incorporate them into the final judgment. Any post-judgment modifications to that judgment must be heard, after the other party is served personally, rather than electronically or by mail.  

Sometimes, a party can request a temporary emergency order before divorce papers are even filed.  The hearing will then be scheduled within days or weeks, depending on the nature of the request, and what is at stake.  These orders are called “temporary orders” and remain in effect until the court can make orders on formal divorce proceedings, or until the parties agree through mediation or negotiations. Although these orders are only temporary, courts often do consider them when making more permanent, formal court decisions, especially in cases of child custody and visitation or spousal support. If you are going to a hearing for a temporary order, be sure you are very organized and ready, as they are often short and will go by quite quickly. If you have your thoughts and arguments well-organized and outlined on notes for yourself, this will make your job much easier when under the short-time limitations.

Remember that all of the decisions made through temporary orders are not permanent. They are all only temporary, and subject to change. They are intended to maintain the family’s security and circumstances until more formal and steadfast family court decisions can be made.

Importance of Temporary Orders for Child Custody

If you are one of the many lucky people who are able to agree on child custody and visitation issues with your former partner, that is great, and will likely save you time, stress, hassle, and money. If you do reach an agreement at some point, be sure to get it in writing, and have both parties sign it, so the court knows that it is your true agreement, and so that it can be enforced if the other party tries violating it.

If you and your partner, like many others, cannot agree on these issues, don’t feel bad, seek the court’s help, as that is what it’s there for. Absent an emergency, like risk of physical harm, hearings for requests of orders like child custody are usually scheduled between six weeks and four months from the time you file. Without a court order, you have no way of enforcing any agreement or arrangement made with the other parent. This would allow the other parent to file false kidnapping charges against you, or take the child(ren) and not return them without a court order. This also means that you cannot call the police to help you enforce the order. With a court order, if the other parent violates the arrangement by not giving you the child(ren) at the right time, you can call a local police department and show them the order you want help enforcing. The police can then go to the other parent’s home and demand he/she/they follow the order and hand over the child(ren). So, request a court order as soon as possible. In CA, the form for doing this is called a “request for order” and is form number FL-300. However, if you’re not married, you’ll first need to establish Parentage, so other forms are required first. Most courts in California have a self-help center that will help you fill out your forms if you don’t have a lawyer. They cannot give you legal advice, but they can show you what forms you need for what purpose and how to fill them out and file them. If you file for custody and your spouse files a claim of kidnapping against you, the judge will see your custody request and the kidnapping claim can be dropped.

The following are common requirements for filing a request for a temporary order.  

• An Order to Show Cause or Request for Order. Also called an, “Application for Order to Show Cause,” this court form asks you to check off various boxes to indicate what you are requesting. It also puts the other parent on notice of the court hearing, as the clerk filing your request for order will write the court date, time, and location on the form for you.

• A supporting declaration. To the back of your Order to Show Cause/Request for Order, you should attach a written document, in which you state the facts of your case and your reasons for needed the requests you made. You can also have other people write declarations on your behalf, if they have firs-hand knowledge of the relevant facts. For example, if you want to show you’re a good parent, and you work from home, so the nanny sees your parenting every day of the week for several years, this would be a good person to write a declaration for you. Use specifics instead of general opinions, and be eloquent instead of offensive. For example, instead of “my ex is an alcoholic nunnybuns, who couldn’t parent if her life depended on it,” consider “During our marriage, Mother drank nearly every day, all day, and I cannot remember a time she was sober. She even drank around our child(ren), and before driving with the (child)ren in the car. On or around February 10, 2021, she was arrested for DUI, with the child(ren) in the car, and I was called to come get our child(ren), who were a crying mess, having just witnessed their mother being arrested and having been taken from her arms by strangers.” Whatever you do, do not lie to the court. This is called perjury. Not only is it a crime you can be arrested for, it can ruin your credibility for the rest of the proceedings, and the judge won’t believe anything you say after you are found to have committed perjury previously.

• A proposed temporary order giving you your requested relief. To submit this document, simply fill out the first part of a “findings and order after hearing,” or similar document, and write the word “proposed” on the top of the first page.” Do not check any of the boxes or sign it, as that is for the judge to do.

• A proof of service document. Have someone over 18, who is not a party in the case serve all of your pleadings as well as a blank response form, usually fl-320 in most cases. Then, that person should sign a proof of service, detailing the documents he/she/they served, the address, date, time, and way (personally, electronically, or by mail) in which they served, and then sign the bottom. If the court does not have this document, it cannot hear your matter, and will likely continue the hearing until such time as the other party is served. The documents need to be served at least 16 court days before the hearing. If you are unable to serve in time, don’t worry. Simply let the judge know and he/she/they should have no problem continuing (rescheduling) your matter. If you have questions about how to do this, or are worried you won’t be able to do it properly, you can hire a process server to handle this for you. Just google one near you, and go with the one you like. The process server will file the proof of service for you. If you are having trouble serving or even finding the other party for service, see my article on Residency in Divorce FAQs, which explains service by publication or posting. 

At the Temporary Order Hearing

 The hearing is the place for the judge to 

• Hear any testimony additional to what you wrote in your court documents.

• Briefly hear from any witnesses (though if you have a lot of witnesses or your witness testimony is very long, you should request a long cause or trial)

• Ask any questions of the parties;

• Hear the other party’s position; and

• Consider your financial circumstances and the state guidelines to come to a recommendation on child support.

 Often times your temporary order hearing will be sent to mediation or what is called “probation.”  Both of these present an opportunity for the parties to negotiate with a trained mediator or settlement master appointed or hired by the court, before the parties go before the judge. In California, mediation before a court hearing is mandatory. This saves the court time and allows more time to work out the conflicts.  Some courts are what is called “recommending counties.” This means that after mediation, the mediator can report back to the judge what happened and make recommendations to the judge on the orders he/she/they think appropriate based on what was revealed in mediation. So, it is important to be kind, civil, and respectful, but also firm on your concerns or facts during your session. If you would not say something to the judge, you probably should not say it to your settlement master or mediator.

 The issues that cannot be resolved in mediation probation are presented to the judge.  The hearing is usually only twenty minutes, fifteen in some counties, long. The judge will listen to both sides and the declarations of any witnesses. Be sure to speak slowly and clearly, and do not interrupt the clerk, judge, the other party/attorney, or any witnesses. Some judges only accept written evidence. Usually, the judge will make an order at the end of your hearing, but sometimes the judge needs more time to consider your matter, or wants to revisit some piece of evidence. When this happens, the judge will usually write the order and then mail it to the parties. If your issue is time-sensitive or an emergency, the judge will likely make the orders at the end of the hearing.   

 Any requests for child support, whether temporary or not, require both parties submit a declaration of income and expenses. In California, this form is FL-150. You are required to attach two months of proof of income, such as a paystub or profit and loss statement to this income and expense declaration. Again, be sure to be honest and do not underreport your income or overreport your expenses. If you do this, the court will assume you are getting the extra income from some other source, and can impute the difference to you as income.

 Sometimes, the judge decides that more information is needed to make an appropriate decision or that the other party was not given appropriate notice before the hearing.  In these cases, the judge might make a decision that is only effective until another temporary order can be held. 

 The temporary order includes any agreements the parties were able to make before the hearing, including agreements made in mediation or probation.  If the parties happen to come to a complete agreement during mediation or probation, then the judge will review that agreement.  Most of the time, the judge will accept these agreements, and sign them as the valid court order. Temporary orders, including agreements, are valid until the court issues a new order about that same issue or the parties enter a new agreement. If a temporary order is not changed by any subsequent order or agreement, it remains in full force and effect. Despite that the early orders are usually only temporary; the courts do consider these in making their final orders.   

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