Residency Requirements for Divorce in California & Nevada

  • July 31, 2018

As a family law attorney, I am often asked about the residency requirements in Nevada v  California.

Pursuant to NRS 125.020, in order to file for divorce in Nevada, one of the parties must be a resident of the state of Nevada for 6 weeks preceding the filing of the Complaint for Divorce.  Such residency must be corroborated by an Affidavit of Residency signed by an individual, also a resident of the State of Nevada, who can confirm that a party to the action has been continuously physically present in the state during that period of time.

In California, the residency requirements are longer.  Pursuant to California Family Code Section 2320 one of the parties must be a resident of the State of California for a period of six months before a Petition for Dissolution of Marriage can be filed. Furthermore, California also has a separate county residency requirement of three months. If a party has not yet met the residency requirements in California, he or she can still file a Petition for Legal Separation prior to meeting the required term of residency and then later convert the Petition to a Petition for Dissolution of Marriage once the residency requirements have been met. The court would then be empowered to make temporary custody and support orders similar to those made in a Dissolution case while the party is waiting to obtain residency.

In addition to the residency requirements for filing of actions, both states also have  adopted the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) which only allows a court to make a child custody determination if the child or children have resided in that state for a period of six months and there is no other state which has jurisdiction over the child. There are some statutory exceptions for emergency situations, but in most cases, the courts will have to defer to the child’s “home state” if there are two or more states which are seeking jurisdiction to make a custody order.  Accordingly, even if an individual satisfies the residency requirements for obtaining a divorce or dissolution, there could still be issues as to whether that state has proper jurisdiction to enter a child custody order

Finally, unlike Nevada which does not have a statutory “waiting period”, California courts cannot issue a Judgment of Dissolution until an additional six months have expired from the date the Respondent was served with the dissolution petition or otherwise acknowledged service. This is to acknowledge the public policy to promote marriage and make sure spouses are given adequate time to consider their decision to proceed with the dissolution of their marriage.

5 Steps for a Successful Divorce Mediation

  • July 11, 2018

Mediation is emerging as the procedure of choice for couples hoping to obtain closure of their divorce issues without engaging in the time consuming, emotional and costly litigation process. However, mediation is not for everyone and there are definitely several requirements to assure its success.  If all of the ingredients for a successful mediation are not present, mediation can sometimes be as time-consuming, frustrating and costly as litigation. The first and the most basic requirement for mediation is that both parties want to mediate. Mediation requires two active voices in the room. The goal is to get an agreement that reflects what each of your needs, in order to move forward in your life. If you are not both willing and voluntary participants, then there will not be two voices, and the result will likely be failed mediation or, at best, an unbalanced agreement which could be subject to enforceability issues in the future.

Other requirements of a successful mediation:

  1. Both Parties Are Determined to Settle The Matter: If both parties want to resolve everything in mediation, and keep coming back to the table to talk and to try, then they will likely be successful.
  2. Both Parties Must Be Active Participants.  Both people have to contribute to the discussion. This means that you have to be able to sit in the room together and use your best efforts to listen to your ex, even when you don’t agree with what he/she is saying. If you and your ex-have a dynamic where one of you feels intimidated by the other, and you can’t say what you are really thinking with him/her in the room – then mediation is probably not the right process for you. It follows also that neither person should be cognitively or emotionally impaired (e.g., severe depression) in any way that affects capacity to mediate. Neither person should lack capacity due to drug or alcohol abuse.
  3. Both Parties Want To Settle the Case and Move On.  The breakdown of a marriage is similar to a death and does cause both parties to engage in the grieving process. This can involve transition through various stages such as denial, pain, anger, depression, reconstruction and eventually acceptance. It is often the case that divorcing couples are at different stages of the grieving process which can certainly complicate the ability of both parties to have lucid discussions about child custody, visitation, division of assets, support, etc.  Mediation of these important and often very emotionally charged issues requires a focus on the long-term and the big picture. You must think about your ex and – on some level – hope to honor your past love for each other, the years of your lives that you spent together.
  4. No Hidden Assets and Full Financial Disclosure. It goes without saying that parties cannot make informed decisions if they do not have all of the information on which to base decisions. In mediation, you will not have the power of the court behind you to compel your spouse to produce credit card statements, bank statements, stock options, small business records, etc. Most couples who choose mediation feel confident that they know what each other has, or can trust the other party to voluntarily produce information without engaging in formal discovery. Mediation would not be right for someone who wants to ‘make a deal’ without revealing their cards.
  5. No Patterns of Intimidation, Control or Domestic Violence. Finally, it is important to note that, if you and your spouse have a history of violence between you, you probably should use more traditional methods for negotiating your divorce. It is difficult to speak freely and express what you want if you fear repercussions or do not feel that you can contribute productively without inciting anger in the abusive spouse.

Whether you decide to mediate or litigate, it is also important that you retain an attorney to assist you during either process. Mediation is a way to conserve resources and funds, but you still need to have an attorney reviewing your agreements to be sure your interests are being protected. Mediators represent the agreement or the goal or resolution and do not have the ability to be representing the interests of the individual parties with conflicting interests. You want to make sure to have any agreements reached in mediation reviewed by your own counsel.

5 Ways to Keep Your Divorce Clean

  • July 11, 2018

We have all heard people refer to some divorces as “messy” or “ugly”. Fortunately, these cases are not the norm but every so often there are cases that are so fueled by anger and vindictiveness that they take inordinate amounts of time, money and emotional energy to get them resolved. Almost every divorce litigant starts off the process expressing a desire to “be amicable”, “stay out of court”, and “keep it clean”. How exactly can that be done? In my experience, following a few simple steps can result in a successful and fair divorce.

  1. Channel Anger. Anger is almost unavoidable in a divorce, but it has its proper time and place. Feel free to vent when necessary to friends, therapists, support groups, and any others who you can rely on to help you work through it. Try to keep your anger out of the negotiations. Question your own motivations behind your proposals. There is an old expression that criminal lawyers see bad people at their best and family law attorneys see good people at their worst. People who are normally pretty mild mannered and kind often default to “scorched earth” when they sense an attack.
  2. Do An Ongoing Cost-Benefit Analysis. Although the agreement on the table may leave you with less than you feel a judge would award to you at trial, you have to look at the big picture. Your assessment should take into account the literal cost of fighting — attorney’s fees — as well as the emotional cost of further delays.
  3. Accept Compromise. As Mick Jagger says, “you can’t always get what you want, but if you try, sometimes you just might find, you get what you need.” After a divorce, no one feels like they’ve “won” and most believe their exes “won”. Dissatisfaction is guaranteed when you are dividing one household into two and dividing the time you spend with your children. To cope with the grieving process, try and appreciate, or even enumerate, the compromises you are both making. Everyone feels like he or she is losing out. The trick is ensuring you wind up with what you need in order to move on.
  4. Ignore the Peanut Gallery. Do not listen to your well intentioned neighbor or coworker or friend or family member who knows nothing about the law but is able to rattle off the custody arrangements and support awards that all the people they know have obtained in a variety of courts. Listening to these people will cause you to become insecure. It will make you second guess yourself or feel you’re caving too early or being a sucker. Keep in mind that family law cases are determined on a very factual basis. It is guaranteed that the Peanut Gallery only has limited facts about your case and about the other cases. Nobody knows everything about a marriage except the two people in it. Rely on your friends for emotional support only. Unless they are a family law attorney practicing regularly in your jurisdiction, do not rely on them for legal strategy or advice.
  5. Find the Right Professionals. Retain an attorney and/or a mediator who understands your desire to keep things clean and amicable and agrees to help you try and achieve that goal (assuming your spouse and his or her lawyer are on the same page). Don’t just blindly call lawyers out of the phone book. Talk to others about their experiences with various lawyers and find a lawyer who has a good track record for achieving good results for clients outside of court and who is willing to work with you to keep you on track in your efforts to “keep it clean”.

 

Bright Line Rule on “Date of Separation”

  • February 15, 2018

Date of SeparationThe “date of separation” is a pivotal issue in many California divorce cases. This date signifies the end of the community estate. It is used to determine everything from the characterization of community and separate property assets and debts to determination of the length of the parties’ marriage to determination of the length required for the payment of spousal support. It also develops a date to utilize for the calculation of the entitlement to reimbursements for payment of community expenses. It is an extremely important question and is often one of the most hotly contested issues in California divorce cases.

For the past 65 years, there has been much to argue about on this issue in any particular case. Determination had been determined largely on the interplay of various intentions, communications, facts and circumstances, unique to each case. Parties who lived under the same roof could still be “separated” under the prior case law just as parties who have lived in separate homes, sometimes for years, could still be deemed not to have separated. The determination in each case was unique to the facts and circumstances of each case and the flexibility provided for fairness.

Not anymore. The California Supreme Court just radically changed the landscape surrounding this issue. In re Marriage of Davis (2015) 61 Cal.4th 846 established a public policy bright-line rule requiring two people to actually cease living under the same roof in order to be considered living “separate and apart”.  While the intention may be to simplify things and give clarity to a confusing issue, it may likely have the opposite result.

People at the end of their marriages feel trapped in many directions and are facing a great deal of uncertainty. A bright line rule on an issue with such importance may prove to be quite limiting in a time that already feels very hopeless.  At first blush, having a clear rule may avoid the “he said, she said” that confounds lawyers and judges, making their jobs easier. However, it can only create more confusion and stress for family law litigants or those contemplating a divorce.  How will this rule impact parties who cannot afford to move out, especially with young children?  In order to file a Dissolution (e.g. divorce) in the State of California, the Petitioner must allege the date of separation. Do we now require that a person must move out of the home before filing for divorce?

I can’t even begin to imagine the strangulation effect this will have on stay at home mothers or disabled spouses who do not have the means to move out and must petition the court for the funds to do so. The time period between the decision one makes to leave his or her spouse and the time the Court first makes interim orders to protect the parties can already seem like an eternity. I have no doubt that the Davis decision will only add further complexity and stress during this period of transition and may create problems in its practical application to the realities of contemporary families.

Incline Law Group’s Family Law attorneys can help you navigate the application of this bright line rule and related issues.

SUMMER LOVE – A TALE OF SPOUSAL SUPPORT

  • July 25, 2014

By Stacey F. Herhusky, Attorney at Law, Incline Law Group

During the summer, many couples decide to tie the knot. It is a happy time for new love. Men are planning their bachelor parties. Women are busy being fitted for wedding dresses. Family law attorneys are preparing Premarital Agreements. But perhaps nobody is as happy at this time of year as the ex-husbands who anxiously await termination of their spousal support obligations when their ex-wives remarry. In California, as well as most states, the obligation to continue paying spousal support to your former spouse terminates upon remarriage.

In a recent California case, we learn that it is not always that simple. In Marriage of Left (August 2012), a former lawyer used her knowledge of the law to find a way to keep her alimony payments coming even after her re“marriage”. Andrea and Andrew Left married in 2001. Shortly thereafter, Andrea got pregnant and decided to stop working. Prior to this, she had worked as a program attorney at ABC Entertainment and Touchstone Television, earning a substantial income and honing her legal skills. Her new husband, Andrew, was a very successful stock trader and founder of Citron Research. He earned an extraordinarily high income which enabled her to retire from law and stay home with their children. Sadly, they divorced in 2008. Since Andrea was a stay at home mom and Andrew was a earning a very high income, he agreed to pay Andrea $32,547 per month in spousal support and $14,590 per month in child support (yes, those figures were per month).

Within six months, Andrea decided to remarry. They set a date, informed the children’s school they were getting married, registered at Bloomingdale’s and mailed wedding invitations to their guests. The celebration with her physician boyfriend took place in Palm Springs. Andrea wore a wedding dress and signed a Ketubah (which is a Jewish marriage contract). The only thing they did not do was obtain a marriage license.

Mr. Left stopped paying support based on her remarriage and Andrea took him back to court for back support, ultimately garnishing his Etrade account for $255,000. The Court, upon learning that there was no marriage license, refused to recognize the marriage and ordered Mr. Left to continue paying support. The court cited California laws which hold that in order to have a valid marriage, a marriage license must be issued.  Until that happens, the former Mrs. Left was not remarried and she has proven that you can, in fact, have your wedding cake and eat it too.